[Title 29 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2004 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
29
Part 1927 to End
Revised as of July 1, 2004
Labor
________________________
Containing a codification of documents of general
applicability and future effect
As of July 1, 2004
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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Table of Contents
Page
Explanation................................................. v
Title 29:
Subtitle B--Regulations Relating to Labor (Continued)
Chapter XVII--Occupational Safety and Health
Administration, Department of Labor (Continued) 5
Chapter XX--Occupational Safety and Health Review
Commission 253
Chapter XXV--Employee Benefits Security
Administration, Department of Labor 321
Chapter XXVII--Federal Mine Safety and Health Review
Commission 675
Chapter XL--Pension Benefit Guaranty Corporation 719
Finding Aids:
Material Approved for Incorporation by Reference........ 985
Table of CFR Titles and Chapters........................ 987
Alphabetical List of Agencies Appearing in the CFR...... 1005
List of CFR Sections Affected........................... 1015
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 29 CFR 1928.1
refers to title 29, part
1928, section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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OMB CONTROL NUMBERS
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
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This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
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Register, National Archives and Records Administration, Washington DC
20408, or call (202) 741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
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and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
and parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
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that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
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Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 2004.
[[Page ix]]
THIS TITLE
Title 29--Labor is composed of nine volumes. The parts in these
volumes are arranged in the following order: parts 0-99, parts 100-499,
parts 500-899, parts 900-1899, parts 1900-1910.999, part 1910.1000-End,
parts 1911-1925, part 1926, and part 1927 to end. The contents of these
volumes represent all current regulations codified under this title as
of July 1, 2004.
The OMB control numbers for title 29 CFR part 1910 appear in Sec.
1910.8. For the convenience of the user, Sec. 1910.8 appears in the
Finding Aids section of the volume containing Sec. 1910.1000 to the
end.
Subject indexes appear following the occupational safety and health
standards (part 1910), and following the safety and health regulations
for: Longshoring (part 1918), Gear Certification (part 1919), and
Construction (part 1926).
For this volume, Bonnie Fritts was Chief Editor. The Code of Federal
Regulations publication program is under the direction of Frances D.
McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 29--LABOR
(This book contains part 1927 to End)
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Part
SUBTITLE B--Regulations Relating to Labor (Continued)
chapter xvii--Occupational Safety and Health Administration,
Department of Labor (Continued)........................... 1928
chapter xx--Occupational Safety and Health Review Commission 2200
chapter xxv--Employee Benefits Security Administration,
Department of Labor....................................... 2509
chapter xxvii--Federal Mine Safety and Health Review
Commission................................................ 2700
chapter xl--Pension Benefit Guaranty Corporation............ 4000
Cross References: Railroad Retirement Board: See Employees' Benefits, 20
CFR chapter II.
Social Security Administration, Department of Health and Human
Services: See Employees' Benefits, 20 CFR chapter III.
Other regulations issued by the Department of Labor appear in 20 CFR
chapters I, IV, V, VI and VII; 41 CFR chapters 50, 60, and 61; and 48
CFR chapter 29. For ``Standards for a Merit System of Personnel
Administration'': See 5 CFR part 900, subpart F.
[[Page 3]]
Subtitle B--Regulations Relating to Labor (Continued)
[[Page 5]]
CHAPTER XVII--OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT
OF LABOR (CONTINUED)
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Part Page
1927 [Reserved]
1928 Occupational safety and health standards for
agriculture............................. 7
1949 Office of Training and Education,
Occupational Safety and Health
Administration.......................... 15
1952 Approved State plans for enforcement of
State standards......................... 16
1953 Changes to State plans...................... 120
1954 Procedures for the evaluation and monitoring
of approved State plans................. 126
1955 Procedures for withdrawal of approval of
State plans............................. 131
1956 State plans for the development and
enforcement of State standards
applicable to State and local government
employees in States without approved
private employee plans.................. 143
1960 Basic program elements for Federal employee
occupational safety and health programs
and related matters..................... 160
1975 Coverage of employers under the Williams-
Steiger Occupational Safety and Health
Act of 1970............................. 187
1977 Discrimination against employees exercising
rights under the Williams-Steiger
Occupational Safety and Health Act of
1970.................................... 192
1978 Rules for implementing section 405 of the
Surface Transportation Assistance Act of
1982 (STAA)............................. 197
1979 Procedures for the handling of
discrimination complaints under section
519 of the Wendell H. Ford Aviation
Investment and Reform Act for the 21st
Century................................. 204
[[Page 6]]
1980 Procedures for the handling of
discrimination complaints under section
806 of the Corporate and Criminal Fraud
Accountability Act of 2002, Title VIII
of the Sarbanes-Oxley Act of 2002....... 211
1981 Procedures for the handling of
discrimination complaints under section
6 of the Pipeline Safety Improvement Act
of 2002................................. 219
1990 Identification, classification, and
regulation of potential occupational
carcinogens............................. 227
[[Page 7]]
PART 1927 [RESERVED]
PART 1928_OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR AGRICULTURE
--Table of Contents
Subpart A_General
Sec.
1928.1 Purpose and scope.
Subpart B_Applicability of Standards
1928.21 Applicable standards in 29 CFR part 1910.
Subpart C_Roll-Over Protective Structures
1928.51 Roll-over protective structures (ROPS) for tractors, used in
agricultural operations.
Appendix A to Subpart C--Employee Operating Instructions
Subpart D_Safety for Agricultural Equipment
1928.57 Guarding of farm field equipment, farmstead equipment, and
cotton gins.
Subparts E-H [Reserved]
Subpart I_General Environmental Controls
1928.110 Field sanitation.
Subparts J-L [Reserved]
Subpart M_Occupational Health
1928.1027 Cadmium.
Authority: Secs. 4, 6, 8, Occupational Safety and Health Act of 1970
(29 U.S.C. 653, 655, 657); Secretary of Labor's Order Nos. 12-71 (36 FR
8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or 1-90 (55 FR 9033), as
applicable; 29 CFR part 1911.
Section 1928.21 also issued under Sec. 29, Hazardous Materials
Transportation Uniform Safety Act of 1990 (Public Law 101-615, 104 Stat.
3244 (49 U.S.C. 1801-1819 and 5 U.S.C. 553).
Source: 40 FR 18257, Apr. 25, 1975, unless otherwise noted.
Subpart A_General
Sec. 1928.1 Purpose and scope.
This part contains occupational safety and health standards
applicable to agricultural operations.
Subpart B_Applicability of Standards
Sec. 1928.21 Applicable standards in 29 CFR part 1910.
(a) The following standards in part 1910 of this chapter shall apply
to agricultural operations:
(1) Temporary labor camps--Sec. 1910.142;
(2) Storage and handling of anhydrous ammonia--Sec. 1910.111 (a)
and (b);
(3) Logging operations--Sec. 1910.266;
(4) Slow-moving vehicles--Sec. 1910.145;
(5) Hazard communication--Sec. 1910.1200;
(6) Cadmium--Sec. 1910.1027.
(7) Retention of DOT markings, placards and labels --Sec.
1910.1201.
(b) Except to the extent specified in paragraph (a) of this section,
the standards contained in subparts B through T and subpart Z of part
1910 of this title do not apply to agricultural operations.
(Section 1928.21 contains a collection of information which has been
approved by the Office of Management and Budget under OMB control number
1218-0072)
[40 FR 18257, Apr. 25, 1975, as amended at 42 FR 38569, July 29, 1977;
52 FR 31886, Aug. 24, 1987; 59 FR 36700, July 19, 1994; 59 FR 51748,
Oct. 12, 1994; 61 FR 5510, Feb. 13, 1996; 61 FR 9255, Mar. 7, 1996]
Subpart C_Roll-Over Protective Structures
Sec. 1928.51 Roll-over protective structures (ROPS) for tractors used
in agricultural operations.
(a) Definitions. As used in this subpart--
Agricultural tractor means a two-or four-wheel drive type vehicle,
or track vehicle, of more than 20 engine horsepower, designed to furnish
the power to pull, carry, propel, or drive implements that are designed
for agriculture. All self-propelled implements are excluded.
Low profile tractor means a wheeled tractor possessing the following
characteristics:
(1) The front wheel spacing is equal to the rear wheel spacing, as
measured from the centerline of each right wheel to the centerline of
the corresponding left wheel.
[[Page 8]]
(2) The clearance from the bottom of the tractor chassis to the
ground does not exceed 18 inches.
(3) The highest point of the hood does not exceed 60 inches, and
(4) The tractor is designed so that the operator straddles the
transmission when seated.
Tractor weight includes the protective frame or enclosure, all
fuels, and other components required for normal use of the tractor.
Ballast shall be added as necessary to achieve a minimum total weight of
110 lb. (50.0 kg.) per maximum power take-off horsepower at the rated
engine speed or the maximum gross vehicle weight specified by the
manufacturer, whichever is the greatest. Front end weight shall be at
least 25 percent of the tractor test weight. In case power take-off
horsepower is not available, 95 percent of net engine flywheel
horsepower shall be used.
(b) General requirements. Agricultural tractors manufactured after
October 25, 1976, shall meet the following requirements:
(1) Roll-over protective structures (ROPS). A roll-over protective
structures (ROPS) shall be provided by the employer for each tractor
operated by an employee. Except as provided in paragraph (b)(5) of this
section, ROPS used on wheel-type tractors shall meet the test and
performance requirements of the American Society of Agricultural
Engineers Standard (ASAE) Standard S306.3-1974 entitled ``Protective
Frame for Agricultural Tractors--Test Procedures and Performance
Requirements'' and Society of Automotive Engineers (SAE) Standard J334-
1970, entitled ``Protective Frame Test Procedures and Performance
Requirements'' (formerly codified in 29 CFR 1928.52); or ASAE Standard
S336.1-1974, entitled ``Protective Enclosures for Agricultural
Tractors--Test Procedures and Performance Requirements'' and SAE J168-
1970, entitled ``Protective Enclosures--Test Procedures and Performance
Requirements'' (formerly codified in 29 CFR 1928.53) 1; or
Sec. 1926.1002 of OSHA's construction standards. These ASAE and SAE
standards are incorporated by reference and have been approved by the
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. Copies may be obtained from either the American Society
of Agricultural Engineers Standard, 2950 Niles Road, Post Office Box
229, St. Joseph, MI 49085, or the Society of Automotive Engineers, 485
Lexington Avenue, New York, NY 10017. Copies may be inspected at the
OSHA Docket Office, U.S. Department of Labor, 200 Constitution Ave.,
NW., Room N2634, or at the National Archives and Records Administration
(NARA). For information on the availability of this material at NARA,
call 202-741-6030, or go to: http://www.archives.gov/federal--register/
code--of--federal--regulations/ibr--locations.html.ROPS used on track-
type tractors shall meet the test and performance requirements of Sec.
1926.1001 of this title.
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\1\ In March 1977, the American Society of Agricultural Engineers
merged S306 and S336, along with Standard 305, entitled ``Operator
Protection for Wheel Type Agricultural Tractors,'' into ASAE S383, which
addresses ROPS for wheeled agricultural tractors.
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(2) Seatbelts. (i) Where ROPS are required by this section, the
employer shall:
(A) Provide each tractor with a seatbelt which meets the
requirements of this paragraph;
(B) Ensure that each employee uses such seatbelt while the tractor
is moving; and
(C) Ensure that each employee tightens the seatbelt sufficiently to
confine the employee to the protected area provided by the ROPS.
(ii) Each seatbelt shall meet the requirements set forth in Society
of Automotive Engineers Standard SAE J4C, 1965 Motor Vehicle Seat Belt
Assemblies, \2\ except as noted hereafter:
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\2\ Copies may be obtained from the Society of Automotive Engineers,
400 Commonwealth Drive, Warrendale, PA 15096.
---------------------------------------------------------------------------
(A) Where a suspended seat is used, the seatbelt shall be fastened
to the movable portion of the seat to accommodate a ride motion of the
operator.
(B) The seatbelt anchorage shall be capable of withstanding a static
tensile load of 1,000 pounds (453.6 kg) at 45 degrees to the horizontal
equally divided between the anchorages. The seat
[[Page 9]]
mounting shall be capable of withstanding this load plus a load equal to
four times the weight of all applicable seat components applied at 45
degrees to the horizontal in a forward and upward direction. In
addition, the seat mounting shall be capable of withstanding a 500 pound
(226.8 kg) belt load plus two times the weight of all applicable seat
components both applied at 45 degrees to the horizontal in and upward
and rearward direction. Floor and seat deformation is acceptable
provided there is not structural failure or release of the seat adjusted
mechanism or other locking device.
(C) The seatbelt webbing material shall have a resistance to acids,
alkalies, mildew, aging, moisture, and sunlight equal to or better than
that of untreated polyester fiber.
(3) Protection from spillage. Batteries, fuel tanks, oil reservoirs,
and coolant systems shall be constructed and located or sealed to assure
that spillage will not occur which may come in contact with the operator
in the event of an upset.
(4) Protection from sharp surfaces. All sharp edges and corners at
the operator's station shall be designed to minimize operator injury in
the event of an upset.
(5) Exempted uses. Paragraphs (b)(1) and (b)(2) of this section do
not apply to the following uses:
(i) Low profile tractors while they are used in orchards, vineyards
or hop yards where the vertical clearance requirements would
substantially interfere with normal operations, and while their use is
incidental to the work performed therein.
(ii) Low profile tractors while used inside a farm building or
greenhouse in which the vertical clearance is insufficient to allow a
ROPS equipped tractor to operate, and while their use is incidental to
the work performed therein.
(iii) Tractors while used with mounted equipment which is
incompatible with ROPS (e.g. cornpickers, cotton strippers, vegetable
pickers and fruit harvesters).
(6) Remounting. Where ROPS are removed for any reason, they shall be
remounted so as to meet the requirements of this paragraph.
(c) Labeling. Each ROPS shall have a label, permanently affixed to
the structure, which states:
(1) Manufacturer's or fabricator's name and address;
(2) ROPS model number, if any;
(3) Tractor makes, models, or series numbers that the structure is
designed to fit; and
(4) That the ROPS model was tested in accordance with the
requirements of this subpart.
(d) Operating instructions. Every employee who operates an
agricultural tractor shall be informed of the operating practices
contained in appendix A of this part and of any other practices dictated
by the work environment. Such information shall be provided at the time
of initial assignment and at least annually thereafter.
[40 FR 18257, Apr. 25, 1975, as amended at 61 FR 9255, Mar. 7, 1996; 69
FR 18803, Apr. 9, 2004]
Appendix A to Subpart C of Part 1928--Employee Operating Instructions
1. Securely fasten your seat belt if the tractor has a ROPS.
2. Where possible, avoid operating the tractor near ditches,
embankments, and holes.
3. Reduce speed when turning, crossing slopes, and on rough, slick, or
muddy surfaces.
4. Stay off slopes too steep for safe operation.
5. Watch where you are going, especially at row ends, on roads, and
around trees.
6. Do not permit others to ride.
7. Operate the tractor smoothly--no jerky turns, starts, or stops.
8. Hitch only to the drawbar and hitch points recommended by tractor
manufacturers.
9. When tractor is stopped, set brakes securely and use park lock if
available.
Subpart D_Safety for Agricultural Equipment
Sec. 1928.57 Guarding of farm field equipment, farmstead equipment, and
cotton gins.
(a) General--(1) Purpose. The purpose of this section is to provide
for the protection of employees from the hazards associated with moving
machinery parts of farm field equipment, farm stead equipment, and
cotton gins used in any agricultural operation.
[[Page 10]]
(2) Scope. Paragraph (a) of this section contains general
requirements which apply to all covered equipment. In addition,
paragraph (b) of this section applies to farm field equipment, paragraph
(c) of this section applies to farmstead equipment, and paragraph (d) of
this section applies to cotton gins.
(3) Application. This section applies to all farm field equipment,
farmstead equipment, and cotton gins, except that paragraphs (b)(2),
(b)(3), and (b)(4)(ii)(A), and (c)(2), (c)(3), and (c)(4)(ii)(A) do not
apply to equipment manufactured before October 25, 1976.
(4) Effective date. This section takes effect on October 25, 1976,
except that paragraph (d) of this section is effective on June 30, 1977.
(5) Definitions--Cotton gins are systems of machines which condition
seed cotton, separate lint from seed, convey materials, and package lint
cotton.
Farm field equipment means tractors or implements, including self-
propelled implements, or any combination thereof used in agricultural
operations.
Farmstead equipment means agricultural equipment normally used in a
stationary manner. This includes, but is not limited to, materials
handling equipment and accessories for such equipment whether or not the
equipment is an integral part of a building.
Ground driven components are components which are powered by the
turning motion of a wheel as the equipment travels over the ground.
A guard or shield is a barrier designed to protect against employee
contact with a hazard created by a moving machinery part.
Power take-off shafts are the shafts and knuckles between the
tractor, or other power source, and the first gear set, pulley,
sprocket, or other components on power take-off shaft driven equipment.
(6) Operating instructions. At the time of initial assignment and at
least annually thereafter, the employer shall instruct every employee in
the safe operation and servicing of all covered equipment with which he
is or will be involved, including at least the following safe operating
practices:
(i) Keep all guards in place when the machine is in operation;
(ii) Permit no riders on farm field equipment other than persons
required for instruction or assistance in machine operation;
(iii) Stop engine, disconnect the power source, and wait for all
machine movement to stop before servicing, adjusting, cleaning, or
unclogging the equipment, except where the machine must be running to be
properly serviced or maintained, in which case the employer shall
instruct employees as to all steps and procedures which are necessary to
safely service or maintain the equipment;
(iv) Make sure everyone is clear of machinery before starting the
engine, engaging power, or operating the machine;
(v) Lock out electrical power before performing maintenance or
service on farmstead equipment.
(7) Methods of guarding. Except as otherwise provided in this
subpart, each employer shall protect employees from coming into contact
with hazards created by moving machinery parts as follows:
(i) Through the installation and use of a guard or shield or
guarding by location;
(ii) Whenever a guard or shield or guarding by location is
infeasible, by using a guardrail or fence.
(8) Strength and design of guards. (i) Where guards are used to
provide the protection required by this section, they shall be designed
and located to protect against inadvertent contact with the hazard being
guarded.
(ii) Unless otherwise specified, each guard and its supports shall
be capable of withstanding the force that a 250 pound individual,
leaning on or falling against the guard, would exert upon that guard.
(iii) Guards shall be free from burrs, sharp edges, and sharp
corners, and shall be securely fastened to the equipment or building.
(9) Guarding by location. A component is guarded by location during
operation, maintenance, or servicing when, because of its location, no
employee can inadvertently come in contact with the hazard during such
operation, maintenance, or servicing. Where the employer can show that
any exposure
[[Page 11]]
to hazards results from employee conduct which constitutes an isolated
and unforeseeable event, the component shall also be considered guarded
by location.
(10) Guarding by railings. Guardrails or fences shall be capable of
protecting against employees inadvertently entering the hazardous area.
(11) Servicing and maintenance. Whenever a moving machinery part
presents a hazard during servicing or maintenance, the engine shall be
stopped, the power source disconnected, and all machine movement stopped
before servicing or maintenance is performed, except where the employer
can establish that:
(i) The equipment must be running to be properly serviced or
maintained;
(ii) The equipment cannot be serviced or maintained while a guard or
guards otherwise required by this standard are in place; and
(iii) The servicing or maintenance can be safely performed.
(b) Farm field equipment--(1) Power take-off guarding. (i) All power
take-off shafts, including rear, mid- or side-mounted shafts, shall be
guarded either by a master shield, as provided in paragraph (b)(1)(ii)
of this section, or by other protective guarding.
(ii) All tractors shall be equipped with an agricultural tractor
master shield on the rear power take-off except where removal of the
tractor master shield is permitted by paragraph (b)(1)(iii) of this
section. The master shield shall have sufficient strength to prevent
permanent deformation of the shield when a 250 pound operator mounts or
dismounts the tractor using the shield as a step.
(iii) Power take-off driven equipment shall be guarded to protect
against employee contact with positively driven rotating members of the
power drive system. Where power take-off driven equipment is of a design
requiring removal of the tractor master shield, the equipment shall also
include protection from that portion of the tractor power take-off shaft
which protrudes from the tractor.
(iv) Signs shall be placed at prominent locations on tractors and
power take-off driven equipment specifying that power drive system
safety shields must be kept in place.
(2) Other power transmission components. (i) The mesh or nip-points
of all power driven gears, belts, chains, sheaves, pulleys, sprockets,
and idlers shall be guarded.
(ii) All revolving shafts, including projections such as bolts,
keys, or set screws, shall be guarded, except smooth shaft ends
protruding less than one-half the outside diameter of the shaft and its
locking means.
(iii) Ground driven components shall be guarded in accordance with
paragraphs (b)(2)(i) and (b)(2)(ii) of this section if any employee may
be exposed to them while the drives are in motion.
(3) Functional components. Functional components, such as snapping
or husking rolls, straw spreaders and choppers, cutterbars, flail
rotors, rotary beaters, mixing augers, feed rolls, conveying augers,
rotary tillers, and similar units, which must be exposed for proper
function, shall be guarded to the fullest extent which will not
substantially interfere with normal functioning of the component.
(4) Access to moving parts. (i) Guards, shields, and access doors
shall be in place when the equipment is in operation.
(ii) Where removal of a guard or access door will expose an employee
to any component which continues to rotate after the power is
disengaged, the employer shall provide, in the immediate area, the
following:
(A) A readily visible or audible warning of rotation; and
(B) A safety sign warning the employee to:
(1) Look and listen for evidence of rotation; and
(2) Not remove the guard or access door until all components have
stopped.
(c) Farmstead equipment--(1) Power take-off guarding. (i) All power
take-off shafts, including rear, mid-, or side-mounted shafts, shall be
guarded either by a master shield as provided in paragraph (b)(1)(ii) of
this section or other protective guarding.
(ii) Power take-off driven equipment shall be guarded to protect
against employee contact with positively driven rotating members of the
power drive
[[Page 12]]
system. Where power take-off driven equipment is of a design requiring
removal of the tractor master shield, the equipment shall also include
protection from that portion of the tractor power take-off shaft which
protrudes from the tractor.
(iii) Signs shall be placed at prominent locations on power take-off
driven equipment specifying that power drive system safety shields must
be kept in place.
(2) Other power transmission components. (i) The mesh or nip-points
of all power driven gears, belts, chains, sheaves, pulleys, sprockets,
and idlers shall be guarded.
(ii) All revolving shafts, including projections such as bolts,
keys, or set screws, shall be guarded, with the exception of:
(A) Smooth shafts and shaft ends (without any projecting bolts,
keys, or set screws), revolving at less than 10 rpm, on feed handling
equipment used on the top surface of materials in bulk storage
facilities; and
(B) Smooth shaft ends protruding less than one-half the outside
diameter of the shaft and its locking means.
(3) Functional components. (i) Functional components, such as
choppers, rotary beaters, mixing augers, feed rolls, conveying augers,
grain spreaders, stirring augers, sweep augers, and feed augers, which
must be exposed for proper function, shall be guarded to the fullest
extent which will not substantially interfere with the normal
functioning of the component.
(ii) Sweep arm material gathering mechanisms used on the top surface
of materials within silo structures shall be guarded. The lower or
leading edge of the guard shall be located no more than 12 inches above
the material surface and no less than 6 inches in front of the leading
edge of the rotating member of the gathering mechanism. The guard shall
be parallel to, and extend the fullest practical length of, the material
gathering mechanism.
(iii) Exposed auger flighting on portable grain augers shall be
guarded with either grating type guards or solid baffle style covers as
follows:
(A) The largest dimensions or openings in grating type guards
through which materials are required to flow shall be 4\3/4\ inches. The
area of each opening shall be no larger than 10 square inches. The
opening shall be located no closer to the rotating flighting than 2\1/2\
inches.
(B) Slotted openings in solid baffle style covers shall be no wider
than 1\1/2\ inches, or closer than 3\1/2\ inches to the exposed
flighting.
(4) Access to moving parts. (i) Guards, shields, and access doors
shall be in place when the equipment is in operation.
(ii) Where removal of a guard or access door will expose an employee
to any component which continues to rotate after the power is
disengaged, the employer shall provide, in the immediate area, the
following:
(A) A readily visible or audible warning of rotation; and
(B) A safety sign warning the employee to:
(1) Look and listen for evidence of rotation; and
(2) Not remove the guard or access door until all components have
stopped.
(5) Electrical disconnect means. (i) Application of electrical power
from a location not under the immediate and exclusive control of the
employee or employees maintaining or servicing equipment shall be
prevented by:
(A) Providing an exclusive, positive locking means on the main
switch which can be operated only by the employee or employees
performing the maintenance or servicing; or
(B) In the case of material handling equipment located in a bulk
storage structure, by physically locating on the equipment an electrical
or mechanical means to disconnect the power.
(ii) All circuit protection devices, including those which are an
integral part of a motor, shall be of the manual reset type, except
where:
(A) The employer can establish that because of the nature of the
operation, distances involved, and the amount of time normally spent by
employees in the area of the affected equipment, use of the manual reset
device would be infeasible;
(B) There is an electrical disconnect switch available to the
employee within 15 feet of the equipment upon which
[[Page 13]]
maintenance or service is being performed; and
(C) A sign is prominently posted near each hazardous component which
warns the employee that, unless the electrical disconnect switch is
utilized, the motor could automatically reset while the employee is
working on the hazardous component.
(d) Cotton ginning equipment--(1) Power transmission components. (i)
The main drive and miscellaneous drives of gin stands shall be
completely enclosed, guarded by location, or guarded by railings
(consistent with the requirements of paragraph (a)(7) of this section).
Drives between gin stands shall be guarded so as to prevent access to
the area between machines.
(ii) When guarded by railings, any hazardous component within 15
horizontal inches of the rail shall be completely enclosed. Railing
height shall be approximately 42 inches off the floor, platform, or
other working surface, with a midrail between the toprail and the
working surface. Panels made of materials conforming to the requirements
in Table D-1, or equivalent, may be substituted for midrails. Guardrails
shall be strong enough to withstand at least 200 pounds force on the
toprail.
(iii) Belts guarded by railings shall be inspected for defects at
least daily. The machinery shall not be operated until all defective
belts are replaced.
Table D-1--Examples of Minimum Requirements for Guard Panel Materials
------------------------------------------------------------------------
Largest
Clearance from mesh or Minimum
moving part at opening gage (U.S.
Material all points (in allowable standard)
inches) (in or
inches) thickness
------------------------------------------------------------------------
Woven wire.................... Under 2......... \3/8\ 16
2 to 4.......... \1/2\ 16
4 to 15......... 2 12
Expanded metal................ Under 4......... \1/2\ 18
4 to 15......... 2 13
Perforated metal.............. Under 4......... \1/2\ 20
4 to 15......... 2 14
Sheet metal................... Under 4......... .......... 22
4 to 15......... .......... 22
Plastic....................... Under 4......... .......... (\1\)
4 to 15......... .......... (\1\)
------------------------------------------------------------------------
\1\ Tensile strength of 10,000 lb/in[hairsp][hairsp]\2\
(iv) Pulleys of V-belt drives shall be completely enclosed or
guarded by location whether or not railings are present. The open end of
the pulley guard shall be not less than 4 inches from the periphery of
the pulleys.
(v) Chains and sprockets shall be completely enclosed, except that
they may be guarded by location if the bearings are packed or if
accessible extension lubrication fittings are used.
(vi) Where complete enclosure of a component is likely to cause a
fire hazard due to excessive deposits of lint, only the face section of
nip-point and pulley guards is required. The guard shall extend at least
6 inches beyond the rim of the pulley on the in-running and off-running
sides of the belt, and at least 2 inches from the rim and face of the
pulley in all other directions.
(vii) Projecting shaft ends not guarded by location shall present a
smooth edge and end, shall be guarded by non-rotating caps or safety
sleeves, and may not protrude more than one-half the outside diameter of
the shaft.
(viii) In power plants and power development rooms where access is
limited to authorized personnel, guard railings may be used in place of
guards or guarding by location. Authorized employees having access to
power plants and power development rooms shall be instructed in the safe
operation and maintenance of the equipment in accordance with paragraph
(a)(6) of this section.
(2) Functional components. (i) Gin stands shall be provided with a
permanently installed guard designed to preclude contact with the gin
saws while in motion. The saw blades in the roll box shall be considered
guarded by location if they do not extend through the ginning ribs into
the roll box when the breast is in the out position.
(ii) Moving saws on lint cleaners which have doors giving access to
the saws shall be guarded by fixed barrier guards or their equivalent
which prevent direct finger or hand contact with the saws while the saws
are in motion.
(iii) An interlock shall be installed on all balers so that the
upper gates cannot be opened while the tramper is operating.
(iv) Top panels of burr extractors shall be hinged and equipped with
a sturdy positive latch.
(v) All accessible screw conveyors shall be guarded by substantial
covers
[[Page 14]]
or gratings, or with an inverted horizontally slotted guard of the
trough type, which will prevent employees from coming into contact with
the screw conveyor. Such guards may consist of horizontal bars spaced so
as to allow material to be fed into the conveyor, and supported by
arches which are not more than 8 feet apart. Screw conveyors under gin
stands shall be considered guarded by location.
(3) Warning device. A warning device shall be installed in all gins
to provide an audible signal which will indicate to employees that any
or all of the machines comprising the gin are about to be started. The
signal shall be of sufficient volume to be heard by employees, and shall
be sounded each time before starting the gin.
[41 FR 10195, Mar. 9, 1976; 41 FR 11022, Mar. 16, 1976; 41 FR 22268,
June 2, 1976, as amended at 41 FR 46598, Oct. 22, 1976]
Subparts E-H [Reserved]
Subpart I_General Environmental Controls
Sec. 1928.110 Field sanitation.
(a) Scope. This section shall apply to any agricultural
establishment where eleven (11) or more employees are engaged on any
given day in hand-labor operations in the field.
(b) Definitions. Agricultural employer means any person,
corporation, association, or other legal entity that:
(i) Owns or operates an agricultural establishment;
(ii) Contracts with the owner or operator of an agricultural
establishment in advance of production for the purchase of a crop and
exercises substantial control over production; or
(iii) Recruits and supervises employees or is responsible for the
management and condition of an agricultural establishment.
Agricultural establishment is a business operation that uses paid
employees in the production of food, fiber, or other materials such as
seed, seedlings, plants, or parts of plants.
Hand-labor operations means agricultural activities or agricultural
operations performed by hand or with hand tools. Except for purposes of
paragraph (c)(2)(iii) of this section, hand-labor operations also
include other activities or operations performed in conjunction with
hand labor in the field. Some examples of hand-labor operations are the
hand-cultivation, hand-weeding, hand-planting and hand-harvesting of
vegetables, nuts, fruits, seedlings or other crops, including mushrooms,
and the hand packing of produce into containers, whether done on the
ground, on a moving machine or in a temporary packing shed located in
the field. Hand-labor does not include such activities as logging
operations, the care or feeding of livestock, or hand-labor operations
in permanent structures (e.g., canning facilities or packing houses).
Handwashing facility means a facility providing either a basin,
container, or outlet with an adequate supply of potable water, soap and
single-use towels.
Potable water means water that meets the standards for drinking
purposes of the state or local authority having jurisdiction or water
that meets the quality standards prescribed by the U.S. Environmental
Protection Agency's National Interim Primary Drinking Water Regulations,
published in 40 CFR part 141.
Toilet facility means a fixed or portable facility designed for the
purpose of adequate collection and containment of the products of both
defecation and urination which is supplied with toilet paper adequate to
employee needs. Toilet facility includes biological, chemical, flush and
combustion toilets and sanitary privies.
(c) Requirements. Agricultural employers shall provide the following
for employees engaged in hand-labor operations in the field, without
cost to the employee:
(1) Potable drinking water. (i) Potable water shall be provided and
placed in locations readily accessible to all employees.
(ii) The water shall be suitably cool and in sufficient amounts,
taking into account the air temperature, humidity and the nature of the
work performed, to meet the needs of all employees.
(iii) The water shall be dispensed in single-use drinking cups or by
fountains. The use of common drinking cups or dippers is prohibited.
[[Page 15]]
(2) Toilet and handwashing facilities. (i) One toilet facility and
one hand wash ing facility shall be provided for each twenty (20)
employees or fraction thereof, except as stated in paragraph (c)(2)(v)
of this section.
(ii) Toilet facilities shall be adequately ventilated, appropriately
screened, have self-closing doors that can be closed and latched from
the inside and shall be constructed to insure privacy.
(iii) Toilet and handwashing facilities shall be accessibly located
and in close proximity to each other. The facilities shall be located
within a one-quarter-mile walk of each hand laborer's place of work in
the field.
(iv) Where due to terrain it is not feasible to locate facilities as
required above, the facilities shall be located at the point of closest
vehicular access.
(v) Toilet and handwashing facilities are not required for employees
who perform field work for a period of three (3) hours or less
(including transportation time to and from the field) during the day.
(3) Maintenance. Potable drinking water and toilet and handwashing
facilities shall be maintained in accordance with appropriate public
health sanitation practices, including the following:
(i) Drinking water containers shall be constructed of materials that
maintain water quality, shall be refilled daily or more often as
necessary, shall be kept covered and shall be regularly cleaned.
(ii) Toilet facilities shall be operational and maintained in clean
and sanitary condition.
(iii) Handwashing facilities shall be refilled with potable water as
necessary to ensure an adequate supply and shall be maintained in a
clean and sanitary condition; and
(iv) Disposal of wastes from facilities shall not cause unsanitary
conditions.
(4) Reasonable use. The employer shall notify each employee of the
location of the sanitation facilities and water and shall allow each
employee reasonable opportunities during the workday to use them. The
employer also shall inform each employee of the importance of each of
the following good hygiene practices to minimize exposure to the hazards
in the field of heat, communicable diseases, retention of urine and
agrichemical residues:
(i) Use the water and facilities provided for drinking, handwashing
and elimination;
(ii) Drink water frequently and especially on hot days;
(iii) Urinate as frequently as necessary;
(iv) Wash hands both before and after using the toilet; and
(v) Wash hands before eating and smoking.
(d) Dates--(1) Effective date. This standard shall take effect on
May 30, 1987.
(2) Startup dates. Employers must comply with the requirements of
paragraphs:
(i) Paragraph (c)(1), to provide potable drinking water, by May 30,
1987;
(ii) Paragraph (c)(2), to provide hand wash ing and toilet
facilities, by July 30, 1987;
(iii) Paragraph (c)(3), to provide main ten ance for toilet and hand
wash ing facilities, by July 30, 1987; and
(iv) Paragraph (c)(4), to assure reasonable use, by July 30, 1987.
[52 FR 16095, May 1, 1987]
Subparts J-L [Reserved]
Subpart M_Occupational Health
Sec. 1928.1027 Cadmium.
See Sec. 1910.1027, Cadmium.
[61 FR 9255, Mar. 7, 1996]
PART 1949_OFFICE OF TRAINING AND EDUCATION, OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION--Table of Contents
Subpart A_OSHA Training Institute
Sec.
1949.1 Policy regarding tuition fees.
1949.2 Definitions.
1949.3 Schedule of fees.
1949.4 Procedure for payment.
1949.5 Refunds.
Authority: Secs. 8, 26, Occupational Safety and Health Act of 1970
(29 U.S.C. 657, 670); 31 U.S.C. 9701; Secretary of Labor's Order No. 9-
83 (48 FR 35736).
Source: 49 FR 32066, Aug. 10, 1984, unless otherwise noted.
[[Page 16]]
Subpart A_OSHA Training Institute
Sec. 1949.1 Policy regarding tuition fees.
(a) The OSHA Training Institute shall charge tuition fees for all
private sector students attending Institute courses.
(b) The following private sector students shall be exempt from the
payment of tuition fees.
(1) Associate members of Field Federal Safety and Health Councils.
(2) Students who are representatives of foreign governments.
(3) Students attending courses which are required by OSHA for the
student to maintain an existing designation of OSHA certified outreach
trainer.
(c) Additional exemptions may be made by the Director of the OSHA
Training Institute on a case by case basis if it is determined that the
students exempted are employed by a nonprofit organization and the
granting of an exemption from tuition would be in the best interest of
the occupational safety and health program. Individuals or organizations
wishing to be considered for this exemption shall make application to
the Director of the OSHA Training Institute in writing stating the
reasons for an exemption from payment of tuition.
[56 FR 28076, June 19, 1991]
Sec. 1949.2 Definitions.
Any term not defined herein shall have the same meaning as given it
in the Act. As used in this subpart:
Private sector students means those students attending the Institute
who are not employees of Federal, State, or local governments.
Sec. 1949.3 Schedule of fees.
(a) Tuition fees will be computed on the basis of the cost to the
Government for the Institute conduct of the course, as determined by the
Director of the Institute.
(b) Total tuition charges for each course will be set forth in the
course announcement.
Sec. 1949.4 Procedure for payment.
(a) Applications for Institute courses shall be submitted to the
Institute Registrar's office in accordance with instructions issued by
the Institute.
(b) Private sector personnel shall, upon notification of their
acceptance by the Institute, submit a check payable to ``U.S. Department
of Labor'' in the amount indicated by the course announcement prior to
the commencement of the course.
Sec. 1949.5 Refunds.
An applicant may withdraw an application and receive full
reimbursement of the fee provided that written notification to the
Institute Registrar is mailed no later than 14 days before the
commencement of the course for which registration has been submitted.
PART 1952_APPROVED STATE PLANS FOR ENFORCEMENT OF STATE STANDARDS
--Table of Contents
Subpart A_General Provisions and Conditions
Sec.
1952.1 Purpose and scope.
1952.2 Definitions.
1952.3 Developmental plans.
1952.4 Injury and illness recording and reporting requirements.
1952.5 Availability of the plans.
1952.6 Partial approval of State plans.
1952.7 Product standards.
1952.8 Variations, tolerances, and exemptions affecting the national
defense.
1952.9 Variances affecting multi-state employers.
1952.10 Requirements for approval of State posters.
1952.11 State and local government employee programs.
Subpart B [Reserved]
Subpart C_South Carolina
1952.90 Description of the plan as initially approved.
1952.91 Developmental schedule.
1952.92 Completion of developmental steps and certification.
1952.93 Compliance staffing benchmarks.
1952.94 Final approval determination.
1952.95 Level of Federal enforcement.
1952.96 Where the plan may be inspected.
1952.97 Changes to approved plan.
Subpart D_Oregon
1952.100 Description of the plan as initially approved.
1952.101 Developmental schedule.
[[Page 17]]
1952.102 Completion of developmental steps and certification.
1952.103 Compliance staffing benchmarks.
1952.104 [Reserved]
1952.105 Level of Federal enforcement.
1952.106 Where the plan may be inspected.
1952.107 Changes to approved plans.
Subpart E_Utah
1952.110 Description of the plan as initially approved.
1952.111 Developmental schedule.
1952.112 Completion of developmental steps and certification.
1952.113 Compliance staffing benchmarks.
1952.114 Final approval determination.
1952.115 Level of Federal enforcement.
1952.116 Where the plan may be inspected.
1952.117 Changes to approved plans.
Subpart F_Washington
1952.120 Description of the plan.
1952.121 Where the plan may be inspected.
1952.122 Level of Federal enforcement.
1952.123 Developmental schedule.
1952.124 Completion of developmental steps and certification.
1952.125 Changes to approved plans.
Subparts G-H [Reserved]
Subpart I_North Carolina
1952.150 Description of the plan as initially approved.
1952.151 Developmental schedule.
1952.152 Completion of developmental steps and certification.
1952.153 Compliance staffing benchmarks.
1952.154 Final approval determination.
1952.155 Level of Federal enforcement.
1952.156 Where the plan may be inspected.
1952.157 Changes to approved plan.
Subpart J_Iowa
1952.160 Description of the plan as initially approved.
1952.161 Developmental schedule.
1952.162 Completion of developmental steps and certification.
1952.163 Compliance staffing benchmarks.
1952.164 Final approval determination.
1952.165 Level of Federal enforcement.
1952.166 Where the plan may be inspected.
1952.167 Changes to approved plans.
Subpart K_California
1952.170 Description of the plan.
1952.171 Where the plan may be inspected.
1952.172 Level of Federal enforcement.
1952.173 Developmental schedule.
1952.174 Completion of developmental steps and certification.
1952.175 Changes to approved plans.
Subparts L-M [Reserved]
Subpart N_Minnesota
1952.200 Description of the plan as initially approved.
1952.201 Developmental schedule.
1952.202 Completion of developmental steps and certification.
1952.203 Compliance staffing benchmarks.
1952.204 Final approval determination.
1952.205 Level of Federal enforcement.
1952.206 Where the plan may be inspected.
1952.207 Changes to approved plans.
Subpart O_Maryland
1952.210 Description of the plan as initially approved.
1952.211 Developmental schedule.
1952.212 Completion of developmental steps and certification.
1952.213 Compliance staffing benchmarks.
1952.214 Final approval determination.
1952.215 Level of Federal enforcement.
1952.216 Where the plan may be inspected.
1952.217 Changes to approved plans.
Subpart P_Tennessee
1952.220 Description of the plan as initially approved.
1952.221 Developmental schedule.
1952.222 Completed developmental steps.
1952.223 Compliance staffing benchmarks.
1952.224 Final approval determination.
1952.225 Level of Federal enforcement.
1952.226 Where the plan may be inspected.
1952.227 Changes to approved plans.
Subpart Q_Kentucky
1952.230 Description of the plan as initially approved.
1952.231 Developmental schedule.
1952.232 Completion of developmental steps and certification.
1952.233 Compliance staffing benchmarks.
1952.234 Final approval determination.
1952.235 Level of Federal enforcement.
1952.236 Where the plan may be inspected.
1952.237 Changes to approved plans.
Subpart R_Alaska
1952.240 Description of the plan as initially approved.
1952.241 Developmental schedule.
1952.242 Completed developmental steps.
1952.243 Final approval determination.
1952.244 Level of Federal enforcement.
1952.245 Where the plan may be inspected.
1952.246 Changes to approved plans.
Subpart S [Reserved]
[[Page 18]]
Subpart T_Michigan
1952.260 Description of the plan as initially approved.
1952.261 Developmental schedule.
1952.262 Completion of developmental steps and certification.
1952.263 Compliance staffing benchmarks.
1952.264 [Reserved]
1952.265 Level of Federal enforcement.
1952.266 Where the plan may be inspected.
1952.267 Changes to approved plans.
Subpart U_Vermont
1952.270 Description of the plan.
1952.271 Where the plan may be inspected.
1952.272 Level of Federal enforcement.
1952.273 Developmental schedule.
1952.274 Completion of developmental steps and certification.
1952.275 Changes to approved plans.
Subpart V [Reserved]
Subpart W_Nevada
1952.290 Description of the plan as initially approved.
1952.291 Developmental schedule.
1952.292 Completion of developmental steps and certification.
1952.293 Compliance staffing benchmarks.
1952.294 Final approval determination.
1952.295 Level of Federal enforcement.
1952.296 Where the plan may be inspected.
1952.297 Changes to approved plans.
Subpart X [Reserved]
Subpart Y_Hawaii
1952.310 Description of the plan as initially approved.
1952.311 Developmental schedule.
1952.312 Completion of developmental steps and certification.
1952.313 Final approval determination.
1952.314 Level of Federal enforcement.
1952.315 Where the plan may be inspected.
1952.316 Changes to approved plans.
Subpart Z_Indiana
1952.320 Description of the plan as initially approved.
1952.321 Developmental schedule.
1952.322 Completion of developmental steps and certification.
1952.323 Compliance staffing benchmarks.
1952.324 Final approval determination.
1952.325 Level of Federal enforcement.
1952.326 Where the plan may be inspected.
1952.327 Changes to approved plans.
Subpart AA [Reserved]
Subpart BB_Wyoming
1952.340 Description of the plan as initially approved.
1952.341 Developmental schedule.
1952.342 Completion of developmental steps and certification.
1952.343 Compliance staffing benchmarks.
1952.344 Final approval determination.
1952.345 Level of Federal enforcement.
1952.346 Where the plan may be inspected.
1952.347 Changes to approved plans.
Subpart CC_Arizona
1952.350 Description of the plan as initially approved.
1952.351 Developmental schedule.
1952.352 Completion of developmental steps and certification.
1952.353 Compliance staffing benchmarks.
1952.354 Final approval determination.
1952.355 Level of Federal enforcement.
1952.356 Where the plan may be inspected.
1952.357 Changes to approved plans.
Subpart DD_New Mexico
1952.360 Description of the plan as initially approved.
1952.361 Developmental schedule.
1952.362 Completion of developmental steps and certification.
1952.363 Compliance staffing benchmarks.
1952.364 [Reserved]
1952.365 Level of Federal enforcement.
1952.366 Where the plan may be inspected.
1952.367 Changes to approved plans.
Subpart EE_Virginia
1952.370 Description of the plan as initially approved.
1952.371 Developmental schedule.
1952.372 Completion of developmental steps and certification.
1952.373 Compliance staffing benchmarks.
1952.374 Final approval determination.
1952.375 Level of Federal enforcement.
1952.376 Where the plan may be inspected.
1952.377 Changes to approved plans.
Subpart FF_Puerto Rico
1952.380 Description of the plan.
1952.381 Where the plan may be inspected.
1952.382 Level of Federal enforcement.
1952.383 Completion of developmental steps and certification.
1952.384 Completed developmental steps.
1952.385 Changes to approved plans.
Authority: Sec. 18 of the Occupational Safety and Health Act of
1970, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR part 1902; Secretary of
Labor's Order No. 5-2002 (67 FR 65007, October 22, 2002).
[[Page 19]]
Subpart A_General Provisions and Conditions
Source: 37 FR 25931, Dec. 6, 1972, unless otherwise noted.
Sec. 1952.1 Purpose and scope.
(a) This part sets forth the Assistant Secretary's approval of State
plans submitted under section 18 of the Act and part 1902 of this
chapter. Each approval of a State plan is based on a determination by
the Assistant Secretary that the plan meets the requirements of section
18(c) of the Act and the criteria and indices of effectiveness specified
in part 1902.
(b) This subpart contains general provisions and conditions which
are applicable to all State plans, regardless of the time of their
approval. Separate subparts are used for the identification of specific
State plans, indication of locations where the full plan may be
inspected and copied, and setting forth any special conditions and
special policies which may be applicable to a particular plan.
Sec. 1952.2 Definitions.
(a) Act means the Occupational Safety and Health Act of 1970 (29
U.S.C. 651 et seq.).
(b) Assistant Secretary means the Assistant Secretary of Labor for
Occupational Safety and Health.
Sec. 1952.3 Developmental plans.
Any developmental plan; that is, a plan not fully meeting the
criteria set forth in Sec. 1902.3 of this chapter at the time of
approval, must meet the requirements of Sec. 1902.2(b) of this chapter.
Sec. 1952.4 Injury and illness recording and reporting requirements.
(a) Injury and illness recording and reporting requirements
promulgated by State-Plan States must be substantially identical to
those in 29 CFR part 1904 ``Recording and Reporting Occupational
Injuries and Illnesses.'' State-Plan States must promulgate recording
and reporting requirements that are the same as the Federal requirements
for determining which injuries and illnesses will be entered into the
records and how they are entered. All other injury and illness recording
and reporting requirements that are promulgated by State-Plan States may
be more stringent than, or supplemental to, the Federal requirements,
but, because of the unique nature of the national recordkeeping program,
States must consult with OSHA and obtain approval of such additional or
more stringent reporting and recording requirements to ensure that they
will not interfere with uniform reporting objectives. State-Plan States
must extend the scope of their regulation to State and local government
employers.
(b) A State may not grant a variance to the injury and illness
recording and reporting requirements for private sector employers. Such
variances may only be granted by Federal OSHA to assure nationally
consistent workplace injury and illness statistics. A State may only
grant a variance to the injury and illness recording and reporting
requirements for State or local government entities in that State after
obtaining approval from Federal OSHA.
(c) A State must recognize any variance issued by Federal OSHA.
(d) A State may, but is not required, to participate in the Annual
OSHA Injury/Illness Survey as authorized by 29 CFR 1904.41. A
participating State may either adopt requirements identical to 1904.41
in its recording and reporting regulation as an enforceable State
requirement, or may defer to the Federal regulation for enforcement.
Nothing in any State plan shall affect the duties of employers to comply
with 1904.41, when surveyed, as provided by section 18(c)(7) of the Act.
[66 FR 6135, Jan. 19, 2001]
Sec. 1952.5 Availability of the plans.
(a) A complete copy of each State plan including any supplements
thereto, shall be kept at:
(1) Office of Federal and State Operations, OSHA, Room 305, Railway
Labor Building, 400 First Street, NW., U.S. Department of Labor,
Washington, DC 20210; and
(2) The office of the nearest Regional Administrator, Occupational
Safety and Health Administration. The addresses of the Regional
Administrators
[[Page 20]]
are listed in the ``United States Government Organization Manual,''
1972/73, p. 310. The copy shall be available for public inspection and
copying.
(b) A complete copy of the State plan of a particular State,
including any supplements thereto, shall be kept at the office of the
State office listed in the appropriate subpart of this part 1952.
Sec. 1952.6 Partial approval of State plans.
(a) The Assistant Secretary may partially approve a plan under part
1902 of this chapter whenever:
(1) The portion to be approved meets the requirements of part 1902;
(2) The plan covers more than one occupational safety and health
issue; and
(3) Portions of the plan to be approved are reasonably separable
from the remainder of the plan.
(b) Whenever the Assistant Secretary approves only a portion of a
State plan, he may give notice to the State of an opportunity to show
cause why a proceeding should not be commenced for disapproval of the
remainder of the plan under subpart C of part 1902 before commencing
such a proceeding.
Sec. 1952.7 Product standards.
(a) Under section 18(c)(2) of the Act, a State plan must not include
standards for products which are distributed or used in interstate
commerce which are different from Federal standards for such products
unless such standards are required by compelling local conditions and do
not unduly burden interstate commerce. In Sec. 1902.3(c)(2) of this
chapter this is interpreted as not being applicable to customized
products, or parts not normally available on the open market, or to the
optional parts, or additions to products which are ordinarily available
with such optional parts, or additions.
(b) In situations where section 18(c)(2) is considered applicable,
and provision is made for the adoption of product standards, the
requirements of section 18(c)(2), as they relate to undue burden on
interstate commerce, shall be treated as a condition subsequent in light
of the facts and circumstances which may be involved.
Sec. 1952.8 Variations, tolerances, and exemptions affecting the national
defense.
(a) The power of the Secretary of Labor under section 16 of the Act
to provide reasonable limitations and variations, tolerances, and
exemptions to and from any or all provisions of the Act as he may find
necessary and proper to avoid serious impairment of the national defense
is reserved.
(b) No action by a State under a plan shall be inconsistent with
action by the Secretary under this section of the Act.
Sec. 1952.9 Variances affecting multi-state employers.
(a) Where a State standard is identical to a Federal standard
addressed to the same hazard, an employer or group of employers seeking
a temporary or permanent variance from such standard, or portion
thereof, to be applicable to employment or places of employment in more
than one State, including at least one State with an approved plan, may
elect to apply to the Assistant Secretary for such variance under the
provisions of 29 CFR part 1905, as amended.
(b) Actions taken by the Assistant Secretary with respect to such
application for a variance, such as interim orders, with respect
thereto, the granting, denying, or issuing any modification or extension
thereof, will be deemed prospectively an authoritative interpretation of
the employer or employers' compliance obligations with regard to the
State standard, or portion thereof, identical to the Federal standard,
or portion thereof, affected by the action in the employment or places
of employment covered by the application.
(c) Nothing herein shall affect the option of an employer or
employers seeking a temporary or permanent variance with applicability
to employment or places of employment in more than one State to apply
for such variance either to the Assistant Secretary or the individual
State agencies involved. However, the filing with, as well as granting,
denial, modification, or revocation of a variance request or interim
order by, either authority (Federal or State) shall preclude any further
substantive
[[Page 21]]
consideration of such application on the same material facts for the
same employment or place of employment by the other authority.
(d) Nothing herein shall affect either Federal or State authority
and obligations to cite for noncompliance with standards in employment
or places of employment where no interim order, variance, or
modification or extension thereof, granted under State or Federal law
applies, or to cite for noncompliance with such Federal or State
variance action.
[40 FR 25450, June 16, 1975]
Sec. 1952.10 Requirements for approval of State posters.
(a)(1) In order to inform employees of their protections and
obligations under applicable State law, of the issues not covered by
State law, and of the continuing availability of Federal monitoring
under section 18(f) of the Act, States with approved plans shall develop
and require employers to post a State poster meeting the requirements
set out in paragraph (a)(5) of this section.
(2) Such poster shall be substituted for the Federal poster under
section 8(c)(1) of the Act and Sec. 1903.2 of this chapter where the
State attains operational status for the enforcement of State standards
as defined in Sec. 1954.3(b) of this chapter.
(3) Where a State has distributed its poster and has enabling
legislation as defined in Sec. 1954.3(b)(1) of this chapter but becomes
nonoperational under the provisions of Sec. 1954.3(f)(1) of this
chapter because of failure to be at least as effective as the Federal
program, the approved State poster may, at the discretion of the
Assistant Secretary, continue to be substituted for the Federal poster
in accordance with paragraph (a)(2) of this section.
(4) A State may, for good cause shown, request, under 29 CFR part
1953, approval of an alternative to a State poster for informing
employees of their protections and obligations under the State plans,
provided such alternative is consistent with the Act, 29 CFR
1902.4(c)(2)(iv) and applicable State law. In order to qualify as a
substitute for the Federal poster under this paragraph, such alternative
must be shown to be at least as effective as the Federal poster
requirements in informing employees of their protections and obligations
and address the items listed in paragraph (a)(5) of this section.
(5) In developing the poster, the State shall address but not be
limited to the following items:
(i) Responsibilities of the State, employers and employees;
(ii) The right of employees or their representatives to request
workplace inspections;
(iii) The right of employees making such requests to remain
anonymous;
(iv) The right of employees to participate in inspections;
(v) Provisions for prompt notice to employers and employees when
alleged violations occur;
(vi) Protection for employees against discharge or discrimination
for the exercise of their rights under Federal and State law;
(vii) Sanctions;
(viii) A means of obtaining further information on State law and
standards and the address of the State agency;
(ix) The right to file complaints with the Occupational Safety and
Health Administration about State program administration;
(x) A list of the issues as defined in Sec. 1902.2(c) of this
chapter which will not be covered by State plan;
(xi) The address of the Regional Office of the Occupational Safety
and Health Administration; and
(xii) Such additional employee protection provisions and obligations
under State law as may have been included in the approved State plan.
(b) Posting of the State poster shall be recognized as compliance
with the posting requirements in section 8(c)(1) of the Act and Sec.
1903.2 of this chapter, provided that the poster has been approved in
accordance with subpart B of part 1953. Continued Federal recognition of
the State poster is also subject to pertinent findings of effectiveness
with regard to the State program under 29 CFR part 1954.
[39 FR 39036, Nov. 5, 1974]
[[Page 22]]
Sec. 1952.11 State and local government employee programs.
(a) Each approved State plan must contain satisfactory assurances
that the State will, to the extent permitted by its law, establish and
maintain an effective and comprehensive occupational safety and health
program applicable to all employees of public agencies of the State and
its political subdivisions which program is as effective as the
standards contained in an approved plan.
(b) This criteria for approved State plans is interpreted to require
the following elements with regard to coverage, standards, and
enforcement:
(1) Coverage. The program must cover all public employees over which
the State has legislative authority under its constitution. ``To the
extent permitted by its law,'' specifically recognizes the situation
where local governments exclusively control their own employees, such as
under certain ``home rule'' charters.
(2) Standards. The program must be as effective as the standards
contained in the approved plan applicable to private employers. Thus,
the same criteria and indices of standards effectiveness contained in
Sec. Sec. 1902.3(c) and 1902.4 (a) and (b) of this chapter would apply
to the public employee program. Where hazards are unique to public
employment, all appropriate indices of effectiveness, such as those
dealing with temporary emergency standards, development of standards,
employee information, variances, and protective equipment, would be
applicable to standards for such hazards.
(3) Enforcement. Although section 18(c)(6) of the Act requires State
public employee programs to be ``as effective as standards'' contained
in the State plan, minimum enforcement elements are required to ensure
an ``effective and comprehensive'' public employee program as follows:
(See notice of approval of the North Carolina Plan, 38 FR 3041).
(i) Regular inspections of workplaces, including inspections in
response to valid employee complaints;
(ii) A means for employees to bring possible violations to the
attention of inspectors;
(iii) Notification to employees, or their representatives, of
decisions that no violations are found as a result of complaints by such
employees or their representatives, and informal review of such
decisions;
(iv) A means of informing employees of their protections and
obligations under the Act;
(v) Protection for employees against discharge of discrimination
because of the exercise of rights under the Act;
(vi) Employee access to information on their exposure to toxic
materials or harmful physical agents and prompt notification to
employees when they have been or are being exposed to such materials or
agents at concentrations or levels above those specified by the
applicable standards;
(vii) Procedures for the prompt restraint or elimination of imminent
danger situations;
(viii) A means of promptly notifying employers and employees when an
alleged violation has occurred, including the proposed abatement
requirements;
(ix) A means of establishing timetables for the correction of
violations;
(x) A program for encouraging voluntary compliance; and
(xi) Such other additional enforcement provisions under State law as
may have been included in the State plan.
(c) In accordance with Sec. 1902.3(b)(3), the State agency or
agencies designated to administer the plan throughout the State must
retain overall responsibility for the entire plan. Political
subdivisions may have the responsibility and authority for the
development and enforcement of standards: Provided, That the designated
State agency or agencies have adequate authority by statute, regulation,
or agreement to insure that the commitments of the State under the plan
will be fulfilled.
These commitments supersede and control any delegation of authority to
State or local agencies. (See Notice of Approval of Colorado Plan, 38 FR
25172.)
[40 FR 58451, Dec. 17, 1975]
Subpart B [Reserved]
[[Page 23]]
Subpart C_South Carolina
Source: 51 FR 8820, Mar. 14, 1986, unless otherwise noted.
Sec. 1952.90 Description of the plan as initially approved.
(a) The plan identifies the South Carolina Department of Labor as
the State agency designated to administer the plan. It adopts the
definition of occupational safety and health issues expressed in Sec.
1902.2(c)(1) of this chapter. The plan states that the Department of
Labor has been promulgating safety and health standards. The South
Carolina Commissioner of Labor is promulgating all standards and
amendments thereto which have been promulgated by the Secretary of
Labor, except those found in Sec. Sec. 1910.13; 1910.14; 1910.15; and
1910.16 of this chapter (ship repairing, shipbuilding, shipbreaking, and
longshoring). The plan describes procedures for the development and
promulgation of additional standards, enforcement of such standards, and
the prompt restraint or elimination of imminent danger situations. The
South Carolina Legislature passed enabling legislation in 1971, a copy
of which was submitted with the original plan. Section 40-261 through
40-274 South Carolina Code of Laws, 1962. The amendments to the plan
include proposed amendments to this legislation to more fully bring the
plan into conformity with the requirements of part 1902. Under the
amended legislation, the South Carolina Department of Labor will have
full authority to administer and enforce all laws, rules, and orders
protecting employee safety and health in all places of employment in the
State.
(b) The plan includes a statement of the Governor's support for the
legislative amendments and a legal opinion that the amended act will
meet the requirements of the Occupational Safety and Health Act of 1970
and is consistent with the constitution and laws of South Carolina. The
plan sets out goals and provides a timetable for bringing it into full
conformity with part 1902 upon enactment of the proposed legislative
amendments.
Sec. 1952.91 Developmental schedule.
The South Carolina plan is developmental. The following is the
schedule of the developmental steps provided by the plan:
(a) Introduction of the above-mentioned legislative amendments in
the legislative session following approval of the plan.
(b) Public hearings and adoption of Federal standards to be
completed by December 1972.
(c) A management information system to be completed by no later than
June 30, 1974.
(d) A voluntary compliance program to be completed by no later than
June 30, 1974.
(e) An occupational safety and health program for public employees
to be completed by no later than June 30, 1974.
(f) A program for the coverage of agriculture workers to be
completed no later than June 30, 1973.
(g) An approved merit system covering employees implementing the
plan to be effective 90 days following approval of the plan.
(h) A revised compliance manual to be completed within 6 months
following approval of the plan.
Sec. 1952.92 Completion of developmental steps and certification.
(a) In accordance with Sec. 1952.91(a) legislative amendments were
introduced into the 1973 South Carolina General Assembly and were
enacted effective June 12, 1973. The amendments have been supplemented
by State commitments to:
(1) Take action on all employee discrimination complaints within 90
days, and
(2) Limit the duration of temporary variances to a maximum of two
years, inclusive of any renewals.
(b) In accordance with Sec. 1952.91(b) the South Carolina
occupational safety and health standards, identical to Federal standards
(through December 3, 1974), have been promulgated and were approved by
the Assistant Regional Director for Occupational Safety and Health
effective April 10, 1975 (40 FR 16257).
(c) In accordance with Sec. 1952.91(d) a voluntary compliance
program, to be
[[Page 24]]
known as the Taxpayers' Assistant Program, has been developed.
(d) In accordance with Sec. 1952.91(f) coverage of agricultural
workers began on July 1, 1973, and was initiated directly by the South
Carolina Department of Labor. (The State plan has been amended to delete
the proposal to delegate such responsibility to the State Department of
Agriculture.)
(e) In accordance with Sec. 1952.91(g) the State plan has been
amended to show extensions of merit system coverage to the South
Carolina Department of Labor, Division of Occupational Safety and
Health. Agreement with the Department of Health and Environmental
Control requires that all health personnel cooperating in the State
occupational safety and health program be likewise covered by the State
merit system.
(f) In accordance with the requirements of Sec. 1952.10 the South
Carolina Safety and Health Poster for private and public employees was
approved by the Assistant Secretary on February 19, 1976.
(g) In accordance with Sec. 1952.91(c) development of a management
information system designed to provide the data required by the
Assistant Secretary and information necessary for internal management of
resources and evaluation of State program performance has been
completed.
(h) The State plan has been amended to include the details of a
public employee program. State and local government employees will be
afforded protection identical to that of employees in the private
sector.
(i) The South Carolina plan has been amended to include an expanded
radiation health effort. The Division of Radiological Health, South
Carolina Department of Health and Environmental Control, under contract
to the South Carolina Department of Labor will make inspections to
provide coverage of radiation hazards not subject to regulation under
the Atomic Energy Act of 1954.
(j) In accordance with plan commitments, South Carolina regulations
for enforcement of standards and review of contested cases, Article IV,
were revised and repromulgated on June 5, 1975. Further amendment to
section 4.00K (September 26, 1975) and a January 15, 1976, letter of
supplemental assurances from Commissioner Edgar L. McGowan are
considered integral parts of the approved South Carolina review
procedures. On March 11, 1976, the State of South Carolina promulgated
the necessary changes to Article IV to fulfill the commitments contained
in their January 15, 1976, letter of supplemental assurances.
(k) The State plan has been amended to include an Affirmative Action
Plan in which the State outlines its policy of equal employment
opportunity.
(l) In accordance with Sec. 1952.91(h) the State has developed and
amended a Compliance Manual which defines the procedures and guidelines
to be used by the South Carolina compliance and consultation staff in
carrying out the goals of the program.
(m) In accordance with Sec. 1902.34 of this chapter, the South
Carolina occupational safety and health plan was certified, effective
August 3, 1976, as having completed all developmental steps specified in
the plan as approved on November 30, 1972, on or before December 31,
1975.
Sec. 1952.93 Compliance staffing benchmarks.
Under the terms of the 1978 Court Order in AFL-CIO v. Marshall
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984 South
Carolina, in conjunction with OSHA, completed a reassessment of the
levels initially established in 1980 and proposed revised compliance
staffing benchmarks of 17 safety and 12 health compliance officers.
After opportunity for public comment and service on the AFL-CIO, the
Assistant Secretary approved these revised staffing requirements on
January 17, 1986.
Sec. 1952.94 Final approval determination.
(a) In accordance with section 18(e) of the Act and procedures in 29
CFR part 1902, and after determination that the State met the ``fully
effective'' compliance staffing benchmarks as revised in 1984 in
response to a Court Order in
[[Page 25]]
AFL-CIO v. Marshall (CA 74-406), and was satisfactorily providing
reports to OSHA through participation in the Federal-State Integrated
Management Information System, the Assistant Secretary evaluated actual
operations under the South Carolina State plan for a period of at least
one year following certification of completion of developmental steps
(41 FR 32424). Based on the 18(e) Evaluation Report for the period of
December 1, 1985, through January 31, 1987, and after opportunity for
public comment, the Assistant Secretary determined that in operation the
State of South Carolina's occupational safety and health program is at
least as effective as the Federal program in providing safe and
healthful employment and places of employment and meets the criteria for
final State plan approval in section 18(e) of the Act and implementing
regulations at 29 CFR part 1902. Accordingly, the South Carolina plan
was granted final approval and concurrent Federal enforcement authority
was relinquished under section 18(e) of the Act effective December 15,
1987.
(b) Except as otherwise noted, the plan which has received final
approval covers all activities of employers and all places of employment
in South Carolina. The plan does not cover private sector maritime
employment; military bases; Federal government employers and employees;
the U.S. Postal Service (USPS), including USPS employees, and contract
employees and contractor-operated facilities engaged in USPS mail
operations; private sector employment at Area D of the Savannah River
Site (power generation and transmission facilities operated by South
Carolina Electric and Gas) and at the Three Rivers Solid Waste
Authority; the enforcement of the field sanitation standard, 29 CFR
1928.110, and the temporary labor camps standard, 29 CFR 1910.142, with
respect to any agricultural establishment where employees are engaged in
``agricultural employment'' within the meaning of the Migrant and
Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1802(3),
regardless of the number of employees, including employees engaged in
hand packing of produce into containers, whether done on the ground, on
a moving machine, or in a temporary packing shed, except that South
Carolina retains enforcement responsibility over agricultural temporary
labor camps for employees engaged in egg, poultry, or red meat
production, or the post-harvest processing of agricultural or
horticultural commodities.
(c) South Carolina is required to maintain a State program which is
at least as effective as operations under the Federal program; to submit
plan supplements in accordance with 29 CFR part 1953; to allocate
sufficient safety and health enforcement staff to meet the benchmarks
for State staffing established by the U.S. Department of Labor, or any
revisions to those benchmarks; and, to furnish such reports in such form
as the Assistant Secretary may from time to time require.
[52 FR 48111, Dec. 18, 1987, as amended at 62 FR 2560, Jan. 17, 1997; 65
FR 36619, June 9, 2000]
Sec. 1952.95 Level of Federal enforcement.
(a) As a result of the Assistant Secretary's determination granting
final approval to the South Carolina plan under section 18(e) of the
Act, effective December 15, 1987, occupational safety and health
standards which have been promulgated under section 6 of the Act do not
apply with respect to issues covered under the South Carolina plan. This
determination also relinquishes concurrent Federal OSHA authority to
issue citations for violations of such standards under sections 5(a)(2)
and 9 of the Act; to conduct inspections and investigations under
section 8 (except those necessary to conduct evaluation of the plan
under section 18(f) and other inspections, investigations, or
proceedings necessary to carry out Federal responsibilities not
specifically preempted by section 18(e)); to conduct enforcement
proceedings in contested cases under section 10; to institute
proceedings to correct imminent dangers under section 13; and to propose
civil penalties or initiate criminal proceedings for violations of the
Federal Act under section 17. The Assistant Secretary retains
jurisdiction under the above provisions in any proceeding commenced
under section 9 or 10 before
[[Page 26]]
the effective date of the 18(e) determination.
(b)(1) In accordance with section 18(e), final approval relinquishes
Federal OSHA authority only with regard to occupational safety and
health issues covered by the South Carolina plan. OSHA retains full
authority over issues which are not subject to State enforcement under
the plan. Thus, Federal OSHA retains its authority relative to safety
and health in private sector maritime activities, and will continue to
enforce all provisions of the Act, rules or orders, and all Federal
standards, current or future, specifically directed to maritime
employment (29 CFR Part 1915, shipyard employment; Part 1917, marine
terminals; Part 1918, longshoring; Part 1919, gear certification), as
well as provisions of general industry and construction standards (29
CFR Parts 1910 and 1926) appropriate to hazards found in these
employments; employment on military bases; and private sector employment
at Area D of the Savannah River Site (power generation and transmission
facilities operated by South Carolina Electric and Gas) and at the Three
Rivers Solid Waste Authority. Federal jurisdiction is retained and
exercised by the Employment Standards Administration, U.S. Department of
Labor, (Secretary's Order 5-96, dated December 27, 1996) with respect to
the field sanitation standard, 29 CFR 1928.110, and the enforcement of
the temporary labor camps standard, 29 CFR 1910.142, in agriculture, as
described in Sec. 1952.94(b). Federal jurisdiction is also retained
with respect to Federal government employers and employees; and the U.S.
Postal Service (USPS), including USPS employees, and contract employees
and contractor-operated facilities engaged in USPS mail operations.
(2) In addition, any hazard, industry, geographical area, operation
or facility over which the State is unable to effectively exercise
jurisdiction for reasons not related to the required performance or
structure of the plan shall be deemed to be an issue not covered by plan
which has received final approval, and shall be subject to Federal
enforcement. Where enforcement jurisdiction is shared between Federal
and State authorities for a particular area, project, or facility, in
the interest of administrative practicability Federal jurisdiction may
be assumed over the entire project or facility. In either of the two
aforementioned circumstances, Federal enforcement may be exercised
immediately upon agreement between Federal OSHA and the State designated
agency.
(c) Federal authority under provisions of the Act not listed in
section 18(e) is unaffected by final approval of the plan. Thus, for
example, the Assistant Secretary retains his authority under section
11(c) of the Act with regard to complaints alleging discrimination
against employees because of the exercise of any right afforded to the
employee by the Act, although such complaints may be referred to the
State for investigation. The Assistant Secretary also retains his
authority under section 6 of the Act to promulgate, modify or revoke
occupational safety and health standards which address the working
conditions of all employees, including those in States which have
received an affirmative 18(e) determination, although such standards may
not be federally applied. In the event that the State's 18(e) status is
subsequently withdrawn and Federal authority reinstated, all Federal
standards, including any standards promulgated or modified during the
18(e) period, would be federally enforceable in that State.
(d) As required by section 18(f) of the Act, OSHA will continue to
monitor the operations of the South Carolina State program to assure
that the provisions of the State plan are substantially complied with
and that the program remains at least as effective as the Federal
program. Failure by the State to comply with its obligations may result
in the revocation of the final determination under section 18(e),
resumption of Federal enforcement, and/or proceedings for withdrawal of
plan approval.
[52 FR 48111, Dec. 18, 1987, as amended at 62 FR 2560, Jan. 17, 1997; 65
FR 36619, June 9, 2000]
Sec. 1952.96 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected
[[Page 27]]
and copied during normal business hours at the following locations:
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue NW, Room N3700,
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, Atlanta Federal Center, 61
Forsyth Street, SW, Room 6T50, Atlanta, Georgia 30303; and
Office of the Director, South Carolina Department of Labor, Licensing
and Regulation, Koger Office Park, Kingstree Building, 110 Centerview
Drive, P.O. Box 11329, Columbia, South Carolina 29210.
[65 FR 36619, June 9, 2000]
Sec. 1952.97 Changes to approved plan.
(a) Legislation. (1) On March 29, 1994, the Assistant Secretary
approved South Carolina's revised statutory penalty levels which are the
same as the revised Federal penalty levels contained in section 17 of
the Act as amended on November 5, 1990.
(2) [Reserved]
(b) The Voluntary Protection Program. On June 24, 1994, the
Assistant Secretary approved South Carolina's plan supplement, which is
generally identical to the Federal STAR Voluntary Protection Program.
South Carolina's ``Palmetto'' VPP is limited to the STAR Program in
general industry, excludes the MERIT AND DEMONSTRATION Programs and
excludes the construction industry. Also, injury rates must be at or
below 50 percent of the State industry average rather than the National
industry average.
(c) Temporary labor camps/field sanitation. Effective February 3,
1997, the Assistant Secretary approved South Carolina's plan amendment,
dated August 1, 1996, relinquishing coverage for the issues of field
sanitation (29 CFR 1928.110) and temporary labor camps (29 CFR 1910.142)
in agriculture (except for agricultural temporary labor camps associated
with egg, poultry or red meat production, or the post-harvest processing
of agricultural or horticultural commodities.) The Employment Standards
Administration, U.S. Department of Labor, has assumed responsibility for
enforcement of these Federal OSHA standards in agriculture in South
Carolina pursuant to Secretary of Labor's Order 5-96, dated December 27,
1996.
[59 FR 39257, Aug. 2, 1994, as amended at 62 FR 2560, Jan. 17, 1997]
Subpart D_Oregon
Sec. 1952.100 Description of the plan as initially approved.
(a)(1) The plan identifies the Oregon Workmen's Compensation Board
as the State agency designated to administer the plan. It adopts the
definition of occupational safety and health issues expressed in Sec.
1902.2(c)(1) of this chapter. The plan contains a standards comparison
of existing and proposed State standards with Federal standards. All
proposed standards except those found in Sec. Sec. 1910.13, 1910.14,
1910.15, and 1910.16 (ship repairing, shipbuilding, ship breaking and
longshoring) will be adopted and enforced after public hearings within 1
year following approval of the plan.
(2) The plan provides a description of personnel employed under a
merit system; the coverage of employees of political subdivisions;
procedures for the development and promulgation of standards; procedures
for prompt and effective standards setting action for the protection of
employees against new and unforeseen hazards; and procedures for the
prompt restraint of imminent danger situations.
(b)(1) The plan includes proposed draft legislation to be considered
by the Oregon Legislature during its 1973 session amending chapter 654
of Oregon Revised Statutes to bring it into conformity with the
requirements of part 1902 of this chapter. Under the proposed
legislation, the workmen's compensation board will have full authority
to enforce and administer all laws and rules protecting employee health
and safety in all places of employment in the State. The legislation
further proposes to bring the State into conformity in areas such as
variances and protection of employees from hazards.
(2) The legislation is also intended to insure inspections in
response to complaints; employer and employee representatives'
opportunity to accompany inspectors and to call attention to possible
violations before, during and after inspections; notification of
[[Page 28]]
employees or their representatives when no compliance action is taken as
a result of alleged violations, including informal review; notification
of employees of their protections; protection of employees against
discharge or discrimination in terms and conditions of employment;
adequate safeguards to protect trade secrets; provision for prompt
notice to employers and employees of alleged violations of standards and
abatement requirements; effective sanctions against employers for
violations of standards and orders; employer right of review of alleged
violations, abatement periods and proposed penalties to the workmen's
compensation board and employee participation in review proceedings. The
plan also proposes to develop a program to encourage voluntary
compliance by employers and employees.
(c) The plan includes a statement of the Governor's support for the
legislative amendments and legal opinion that the draft legislation will
meet the requirements of the Occupational Safety and Health Act of 1970
and is consistent with the constitution and laws of Oregon. The plan
sets out goals and provides a timetable for bringing it into full
conformity with part 1902 upon enactment of the proposed legislation.
(d) The Oregon plan includes the following documents as of the date
of approval:
(1) The plan description document with appendices.
(2) Appendix G, the standards comparison.
(3) Letter from M. Keith Wilson, Chairman, Workmen's Compensation
Board to the Assistant Secretary, June 30, 1972, on product standards.
(4) Letter from M. Keith Wilson to James Lake, Regional
Administrator, June 30, 1972, clarifying employee sanction provisions.
(5) Letter with attachments from M. Keith Wilson to the Assistant
Secretary, September 5, 1972, clarifying several issues raised during
the review process.
(6) Letter from the commissioners of the workmen's compensation
board to the Assistant Secretary, December 4, 1972, clarifying the
remaining issues raised during the review process.
(e) Also available for inspection and copying with the plan
documents will be the public comments received and a transcript of the
public hearing held September 27, 1972.
[37 FR 28630, Dec. 28, 1972. Redesignated at 52 FR 9162, Mar. 23, 1987,
as amended at 59 FR 42495, Aug. 18, 1994]
Sec. 1952.101 Developmental schedule.
The Oregon plan is developmental. The schedule of developmental
steps as described in the plan is revised in a letter dated November 27,
1973, from M. Keith Wilson, Chairman, Workman's Compensation Board to
James Lake, Assistant Regional Director for OSHA and includes:
(a) Introduction of the legislative amendments in the legislative
session following approval of the plan. The legislation was passed and
became effective July 1, 1973.
(b) Complete revision of all occupational safety and health codes as
proposed within one year after the proposed standards are found to be at
least as effective by the Secretary of Labor.
(c) Development of administrative rules and procedures, including
rights and responsibilities of employers, employees and the Workmen's
Compensation Board including regulations on variances, exposure to
hazards and access to information on exposure to hazards by July 1,
1974.
(d) Training of present inspection personnel of the accident
prevention division and the occupational health section by July 1, 1973.
Selection and training of additional inspectors within one year of the
effective date of the 1973-1975 budget.
(e) Establishment of specific occupational safety and health goals
by July 1, 1974. These goals will be reviewed and revised biannually.
(f) Development and implementation of an affirmative action program
by July 1, 1973.
(g) Development and implementation of administrative rules relative
to an on-site voluntary compliance consultation program by July 1, 1974.
[39 FR 11881, Apr. 1, 1974. Redesignated at 52 FR 9162, Mar. 23, 1987,
and further redesignated at 59 FR 42495, Aug. 18, 1994]
[[Page 29]]
Sec. 1952.102 Completion of developmental steps and certification.
(a)(1) In accordance with Sec. 1952.108(a), the Oregon Safe
Employment Act, Senate Bill 44, amending Oregon Revised Statutes 654 and
446 and other miscellaneous provisions, was signed by the Governor on
July 22, 1973, and carried an effective date of July 1, 1973.
(2) The following differences between the program described in Sec.
1952.105(b)(1) and the program authorized by the State law are approved:
(i) By promulgation of the appropriate regulatory provision, Rule
46-331, and by including a mandatory consultation requirement in its
Field Compliance Manual, Oregon provides for employee participation,
when there is no employee representative, by requiring the inspector to
consult with employees.
(ii) In accordance with ORS, 654.062(3), an additional written
request from an employee is required in order to obtain a statement of
the reasons why no citation was issued as a result of an employee
complaint of unsafe work conditions, which will be subject to evaluation
in its administration.
(iii) Section 18 of Oregon's legislation authorizes a stay of the
abatement date by operation of law pending a final order of the Board
for nonserious violations and for serious violations when the abatement
date of the serious violation is specifically contested. An expedited
hearing will be requested for serious violations when the abatement date
is contested.
(3) The Oregon Safe Employment Act as last amended in the 1981
legislative session included changes renaming the designated enforcement
agency, establishment of a director for that agency, authority for
requiring certain employers to establish safety and health committees,
and limiting penalties for other-than-serious violations in temporary
labor camps. The Assistant Secretary approved the amended legislation on
September 15, 1982.
(b) In accordance with the requirements of 29 CFR 1952.10 the Oregon
State Poster with assurance submitted on September 2, 1975, was approved
by the Assistant Secretary on November 5, 1975. The State's revised
poster which implemented the assurance was approved by the Assistant
Secretary on September 15, 1982.
(c) In accordance with Sec. 1952.108(d) Oregon has completed the
training as described.
(d) Oregon has developed and implemented a computerized Management
Information System.
(e) In accordance with Sec. 1952.108(f) Oregon has developed and
implemented an Affirmative Action Plan.
(f) In accordance with Sec. 1952.108(e) a Statement of Goals and
Objectives has been developed by the State and was approved by the
Assistant Secretary on June 24, 1977.
(g) The Oregon State Compliance Manual which is modeled after the
Federal Field Operations Manual has been developed by the State, and was
approved by the Assistant Secretary on June 24, 1977.
(h) In accordance with the requirements of Sec. 1952.4, Oregon
State recordkeeping and reporting regulations adopted on June 4, 1974,
and subsequently revised, were approved by the Assistant Secretary on
August 28, 1980.
(i) In accordance with Sec. 1952.108 (c) and (g), the Oregon
Workers' Compensation Department adopted administrative regulations
providing procedures for conduct and scheduling of inspections,
extension of abatement dates, variances, employee complaints, posting of
citations and notices, and voluntary compliance consultation in the
public sector, effective July 1, 1974, with revisions incorporated in
rules effective August 1, 1982 and August 13, 1982. These regulations
with supplemental assurances were approved by the Assistant Secretary on
September 15, 1982.
(j) In accordance with Sec. 1952.108(c) the Oregon Workers'
Compensation Board adopted rules effective December 20, 1973, governing
practice and procedures for contested cases with revisions incorporated
in rules effective August 2, 1982. These rules were approved by the
Assistant Secretary on September 15, 1982.
(k) The Oregon Workers' Compensation Department submitted rules of
the Oregon Bureau of Labor and Industries, the agency assigned
responsibility for
[[Page 30]]
investigation of complaints of discrimination under the Oregon Safe
Employment Act. These regulations and rule effective June 21, 1982, and
March 12, 1982 with supplemental assurance were approved by the
Assistant Secretary on September 15, 1982.
(l) In accordance with Sec. 1902.34 of this chapter, the Oregon
occupational safety and health plan was certified effective September
15, 1982, as having completed all developmental steps specified in the
plan as approved on December 28, 1972, on or before December 28, 1975.
This certification attests to structural completion, but does not render
judgment on adequacy of performance.
[40 FR 24523, June 9, 1975, as amended at 41 FR 8955, Mar. 2, 1976; 41
FR 23671, June 11, 1976; 42 FR 34281, July 29, 1977; 45 FR 60430, Sept.
12, 1980; 47 FR 42104, 42106, Sept. 24, 1982. Redesignated at 52 FR
9162, Mar. 23, 1987, and further redesignated at 59 FR 42495, Aug. 18,
1994]
Sec. 1952.103 Compliance staffing benchmarks.
Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (``benchmarks'') necessary for a ``fully
effective'' enforcement program were required for each State operating
an approved State plan. In October 1992, Oregon completed, in
conjunction with OSHA, a reassessment of the health staffing level
initially established in 1980 and proposed a revised health benchmark of
28 health compliance officers. Oregon elected to retain the safety
benchmark level established in the 1980 Report to the Court of the U.S.
District Court for the District of Columbia in 1980 of 47 safety
compliance officers. After opportunity for public comment and service on
the AFL-CIO, the Assistant Secretary approved these revised staffing
requirements on August 11, 1994.
[59 FR 42495, Aug. 18, 1994]
Sec. 1952.104 [Reserved]
Sec. 1952.105 Level of Federal enforcement.
(a) Pursuant to Sec. Sec. 1902.20(b)(1)(iii) and 1954.3 of this
chapter under which an operational status agreement has been entered
into with Oregon, effective January 23, 1975, and as amended, effective
December 12, 1983 and November 27, 1991; and based on a determination
that Oregon is operational in the issues covered by the Oregon
occupational safety and health plan, discretionary Federal enforcement
authority under section 18(e) of the Act, 29 U.S.C. 667(c), will not be
initiated with regard to Federal occupational safety and health
standards in issues covered under 29 CFR parts 1910, 1926 and 1928
except as provided in this section. The U.S. Department of Labor will
continue to exercise authority among other things with regard to:
(1) Complaints filed with the U.S. Department of Labor alleging
discrimination under section 11(c) of the Act (29 U.S.C. 660(c));
(2) Standards in the maritime issues covered by 29 CFR Parts 1915,
1917, 1918, and 1919 (shipyards, marine terminals, longshoring, and gear
certification), and enforcement of general industry and construction
standards (29 CFR Parts 1910 and 1926) appropriate to hazards found in
these employments, which have been specifically excluded from coverage
under the plan. This includes: employment on the navigable waters of the
U.S.; shipyard and boatyard employment on or immediately adjacent to the
navigable waters--including floating vessels, dry docks, graving docks
and marine railways--from the front gate of the work site to the U.S.
statutory limits; longshoring, marine terminal and marine grain terminal
operations, except production or manufacturing areas and their storage
facilities; construction activities emanating from or on floating
vessels on the navigable waters of the U.S.; commercial diving
originating from an object afloat a navigable waterway; and all other
private sector places of employment on or adjacent to navigable waters
whenever the activity occurs on or from the water;
(3) Enforcement of new Federal standards until the State adopts a
comparable standard;
(4) Enforcement in situations where the State is refused entry and
is unable to obtain a warrant or enforce its right of entry;
(5) Enforcement of unique and complex standards as determined by the
Assistant Secretary;
[[Page 31]]
(6) Enforcement in situations when the State is unable to exercise
its enforcement authority fully or effectively;
(7) Enforcement of occupational safety and health standards at all
private sector establishments, including tribal and Indian-owned
enterprises, on all Indian and non-Indian lands within the currently
established boundaries of all Indian reservations, including the Warm
Springs and Umatilla reservations, and on lands outside these
reservations that are held in trust by the Federal government for these
tribes. (Businesses owned by Indians or Indian tribes that conduct work
activities outside the tribal reservation or trust lands are subject to
the same jurisdiction as non-Indian owned businesses.);
(8) Enforcement of occupational safety and health standards at
worksites located within Federal military reservations, except private
contractors working on U.S. Army Corps of Engineers dam construction
projects, including reconstruction of docks or other appurtenances;
(9) Investigations and inspections for the purpose of the evaluation
of the plan under sections 18(e) and (f) of the Act (29 U.S.C. 667(e)
and (f)); and
(10) Enforcement of occupational safety and health standards with
regard to all Federal government employers and employees; and the U.S.
Postal Service (USPS), including USPS employees, and contract employees
and contractor-operated facilities engaged in USPS mail operations.
(b) The Regional Administrator for Occupational Safety and Health
will make a prompt recommendation for resumption of exercise of Federal
enforcement authority under section 18(e) of the Act (29 U.S.C. 667(e))
whenever, and to the degree, necessary to assure occupational safety and
health protection to employees in the State of Oregon.
[51 FR 27024, July 29, 1986. Redesignated at 52 FR 9162, Mar. 23, 1987,
and further redesignated at 59 FR 42495, Aug. 18, 1994; 62 FR 49909,
Sept. 24, 1997; 65 FR 36619, June 9, 2000]
Sec. 1952.106 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations:
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, Room N3700, 200 Constitution Avenue, N.W.,
Washington, D.C. 20210;
Office of the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, Suite 715, 1111 Third Avenue,
Seattle, Washington 98101-3212; and
Oregon Occupational Safety and Health Division, Department of Consumer
and Business Services, Room 430, Labor and Industries Building, 350
Winter Street NE, Salem, Oregon 97310.
[59 FR 42495, Aug. 18, 1994]
Sec. 1952.107 Changes to approved plans.
In accordance with part 1953 of this chapter, the following Oregon
plan changes were approved by the Assistant Secretary:
(a) The State submitted a revised field operations manual patterned
after the Federal field operations manual, including modifications, in
effect February 11, 1985, which superseded the State's previously
approved manual. The Assistant Secretary approved the manual on July 29,
1986.
(b) The State submitted an industrial hygiene technical manual
patterned after the Federal manual, including modifications, in effect
March 30, 1984. The Assistant Secretary approved the manual on July 29,
1986.
(c) The State submitted an inspection scheduling system which
schedules inspections based on lists of employers with a high incidence
of workers compensation claims, whose operations are within industries
with high injury rates, or which have a high potential for health
problems. The Assistant Secretary approved the supplement on July 29,
1986.
(d) The State submitted several changes to its administrative
regulations concerning personal sampling, petition to modify abatement
dates, penalties for repeat violations, and recordkeeping exemptions.
The Assistant Secretary approved these changes on July 29, 1986.
[[Page 32]]
(e) Legislation. (1) On March 29, 1994, the Acting Assistant
Secretary approved Oregon's revised statutory penalty levels as enacted
subject to further action by the State in 1995 to correct the State's
omission of revisions of the penalty for posting violations. Aside from
posting penalties, Oregon's revised penalty levels are the same as the
revised Federal penalty levels contained in section 17 of the Act as
amended on November 5, 1990.
(2) [Reserved]
(f) Oregon's State plan changes excluding coverage under the plan of
all private sector employment (including tribal and Indian-owned
enterprises) on Umatilla Indian reservation or trust lands, by letters
of April 29 and July 14, 1997 (see Sec. Sec. 1952.105); extending
coverage under the plan to Superfund sites and private contractors
working on U.S. Army Corps of Engineers dam construction projects, as
noted in a 1992 Memorandum of Understanding; and specifying four (4)
unusual circumstances where Federal enforcement authority may be
exercised, as described in a 1991 addendum to the State's operational
status agreement, were approved by the Acting Assistant Secretary on
September 24, 1997.
(g) Oregon's State plan changes extending Federal enforcement
jurisdiction to shore side shipyard and boatyard employment, as
described in a 1998 Memorandum of Understanding and addendum to the
State's operational status agreement; and to all private sector
employment, including tribal and Indian-owned enterprises, on all Indian
reservations, including establishments on trust lands outside of
reservations, as described in a separate 1998 addendum, were approved by
the Assistant Secretary on January 6, 1999.
[51 FR 27025, July 29, 1986. Redesignated at 52 FR 9162, Mar. 23, 1987,
as amended at 59 FR 14555, Mar. 29, 1994. Further redesignated at 59 FR
42495, Aug. 18, 1994; 62 FR 49910, Sept. 24, 1997; 65 FR 36620, June 9,
2000]
Subpart E_Utah
Sec. 1952.110 Description of the plan as initially approved.
(a) The plan identifies the Utah State Industrial Commission as the
State agency designated to administer the plan throughout the State. It
defines the covered occupational safety and health issues as defined by
the Secretary of Labor in 29 CFR 1902.2(c)(1). The plan states that the
Utah Industrial Commission currently is exercising statewide inspection
authority to enforce many State standards. It describes procedures for
the development and promulgation of additional safety standards, rule
making power for enforcement of standards, laws, and orders in all
places of employment in the State; the procedures for prompt restraint
or elimination of imminent danger conditions; and procedures for
inspection in response to complaints. The plan includes proposed draft
legislation to be considered by the Utah Legislature during its 1973
session amending title 35, chapter 1 of the Utah State Code and related
provisions, to bring them into conformity with the requirements of part
1902. Under this legislation all occupational safety and health
standards and amendments thereto which have been promulgated by the
Secretary of Labor, except those found in 29 CFR 1910.13, 1910.14,
1910.15, and 1910.16 (ship repairing, shipbuilding, shipbreaking, and
longshoring) will, after public hearing by the Utah agency be adopted
and enforced by that agency. The plan sets forth a timetable for the
proposed adoption of standards. The legislation will give the Utah
Industrial Commission full authority to administer and enforce all laws,
rules, and orders protecting employee safety and health in all places of
employment in the State. It also proposes to bring the plan into
conformity in procedures for providing prompt and effective standards
for the protection of employees against new and unforeseen hazards and
for furnishing information to employees on hazards, precautions,
symptoms, and emergency treatment; and procedures for variances and the
protection of employees from hazards. The proposed legislation will
ensure employer and employee representatives an opportunity to accompany
inspectors and call attention to possible violations before, during, and
after inspections; protection of employees against discharge
[[Page 33]]
or discrimination in terms and conditions of employment; notice to
employees of their protections and obligations; adequate safeguards to
protect trade secrets; prompt notice to employers and employees of
alleged violations of standards and abatement requirements; effective
sanctions against employers; and employer's right to review alleged
violations, abatement periods, and proposed penalties with opportunity
for employee participation in the review proceedings.
(b) Included in the plan is a statement of the Governor's support
for the proposed legislation and a statement of legal opinion that it
will meet the requirements of the Occupational Safety and Health Act of
1970, and is consistent with the Constitution and laws of Utah. The plan
sets out goals and provides a timetable for bringing it into full
conformity with part 1902 of this chapter upon enactment of the proposed
legislation by the State legislature.
(c) The plan includes the following documents as of the date of
approval:
(1) The plan with appendixes.
(2) A letter from Carlyle F. Gronning, Chairman of the Utah
Industrial Commission to the Office of State Programs with an attached
memo sheet of clarifications dated October 27, 1972.
(3) A letter from Carlyle F. Gronning to the Office of State
Programs dated December 3, 1972, clarifying issues raised in the plan
review.
(4) A letter from Carlyle F. Gronning to the Office of Federal and
State Operations dated December 11, 1972, clarifying the remaining
issues raised in the review process.
[38 FR 1179, Jan. 10, 1973, as amended at 50 FR 28780, July 16, 1985]
Sec. 1952.111 Developmental schedule.
The Utah plan is developmental. The following is the schedule of
developmental steps provided by the plan:
(a) Introduction of resulting legislation in State Legislature
during January 1973.
(b) Expected enactment of the enabling legislation by March 1973.
(c) Formal adoption of Federal standards and revocation of existing
Utah State standards by September 1, 1973.
(d) Adoption of safety standards for agriculture by September 1,
1974.
(e) Formal adoption of parts 1903, 1904, and 1905 of this chapter as
rules and regulations of Utah by July 1974.
(f) Effective date of new standards, commencement of State
enforcement by September 1973.
(g) A management information system by July 1, 1974.
[38 FR 1179, Jan. 10, 1973. Redesignated at 50 FR 28780, July 16, 1985]
Sec. 1952.112 Completion of developmental steps and certification.
(a) In accordance with the requirements of 29 CFR 1952.110, the Utah
State poster was approved by the Assistant Secretary on January 7, 1976.
(b) In accordance with Sec. 1952.113(g), the State has developed
and implemented a Management Information System.
(c) In accordance with the requirements of 29 CFR 1952.110(b), the
Utah Occupational Safety and Health Act, (chapter 9 of title 35 of the
Utah State Code) effective July 1, 1973, was approved July 30, 1974.
(d) In accordance with the requirements of 29 CFR 1952.113(e), State
regulations substantially identical to 29 CFR parts 1903, 1904, and
1905, have been adopted by the State and approved by the Assistant
Secretary on March 3, 1976.
(e) The State has developed and implemented rules of procedure for
its review commission, consistent with present law.
(f) The State plan has been amended to include an Affirmative Action
Plan outlining the State's policy of equal employment opportunity.
(g) In accordance with 29 CFR 1952.113 Utah has promulgated
standards at least as effective as comparable Federal standards as set
out in 41 FR 11635, regarding all issues covered by the plan.
(h) In accordance with Sec. 1902.34 of this chapter, the Utah
occupational safety and health plan was certified, effective as of the
date of publication on November 19, 1976, as having completed all
developmental steps specified in the plan
[[Page 34]]
as approved on January 4, 1973 on or before January 3, 1976.
[41 FR 1904, Jan. 13, 1976, as amended at 41 FR 10064, Mar. 9, 1976; 41
FR 15005, Apr. 9, 1976; 41 FR 46599, Oct. 22, 1976; 41 FR 51016, Nov.
19, 1976. Redesignated and amended at 50 FR 28780, July 16, 1985]
Sec. 1952.113 Compliance staffing benchmarks.
Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984, Utah, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised compliance staffing benchmarks
of 10 safety and 9 health compliance officers. After opportunity for
public comments and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements effective July 16, 1985.
[50 FR 28780, July 16, 1985]
Sec. 1952.114 Final approval determination.
(a) In accordance with section 18(e) of the Act and procedures in 29
CFR part 1902, and after determination that the State met the ``fully
effective'' compliance staffing benchmarks as revised in 1984 in
response to a Court Order in AFL-CIO v. Marshall (CA 74-406), and was
satisfactorily providing reports to OSHA through participation in the
Federal-State Unified Management Information System, the Assistant
Secretary evaluated actual operations under the Utah State plan for a
period of at least one year following certification of completion of
developmental steps (41 FR 51014). Based on the 18(e) Evaluation Report
for the period of October 1, 1982 through March 31, 1984, and after
opportunity for public comment, the Assistant Secretary determined that
in operation the State of Utah's occupational safety health program is
at least as effective as the Federal program in providing safe and
healthful employment and places of employment and meets the criteria for
final State plan approval in section 18(e) of the Act and implementing
regulations at 29 CFR part 1902. Accordingly, the Utah plan was granted
final approval and concurrent Federal enforcement authority was
relinquished under section 18(e) of the Act effective July 16, 1985.
(b) Except as otherwise noted, the plan which has received final
approval covers all activities of employers and all places of employment
in Utah. The plan does not cover private sector maritime employment;
employment on Hill Air Force Base; Federal government employers and
employees; the U.S. Postal Service (USPS), including USPS employees, and
contract employees and contractor-operated facilities engaged in USPS
mail operations; the enforcement of the field sanitation standard, 29
CFR 1928.110, and the enforcement of the temporary labor camps standard,
29 CFR 1910.142, with respect to any agricultural establishment where
employees are engaged in ``agricultural employment'' within the meaning
of the Migrant and Seasonal Agricultural Worker Protection Act, 29
U.S.C. 1802(3), regardless of the number of employees, including
employees engaged in hand packing of produce into containers, whether
done on the ground, on a moving machine, or in a temporary packing shed,
except that Utah retains enforcement responsibility over agricultural
temporary labor camps for employees engaged in egg, poultry, or red meat
production, or the post-harvest processing of agricultural or
horticultural commodities.
(c) Utah is required to maintain a State program which is at least
as effective as operations under the Federal program; to submit plan
supplements in accordance with 29 CFR part 1953; to allocate sufficient
safety and health enforcement staff to meet the benchmarks for State
staffing established by the U.S. Department of Labor, or any revisions
to those benchmarks; and, to furnish such reports in such form as the
Assistant Secretary may from time to time require.
[50 FR 28780, July 16, 1985, as amended at 62 FR 2560, Jan. 17, 1997; 65
FR 36620, June 9, 2000]
[[Page 35]]
Sec. 1952.115 Level of Federal enforcement.
(a) As a result of the Assistant Secretary's determination granting
final approval of the Utah plan under section 18(e) of the Act,
effective July 16, 1985, occupational safety and health standards which
have been promulgated under section 6 of the Act do not apply with
respect to issues covered under the Utah plan. This determination also
relinquishes concurrent Federal OSHA authority to issue citations for
violations of such standards under sections 5(a)(2) and (9) of the Act;
to conduct inspections and investigations under section 8 (except those
necessary to conduct evaluation of the plan under section 18(f) and
other inspections, investigations, or proceedings necessary to carry out
Federal responsibilities not specifically preempted by section 18(e));
to conduct enforcement proceedings in contested cases under section 10;
to institute proceedings to correct imminent dangers under section 13;
and to propose civil penalties or initiate criminal proceedings for
violations of the Federal Act under section 17. The Assistant Secretary
retains jurisdiction under the above provisions in any proceeding
commenced under section 9 or 10 before the effective date of the 18(e)
determination.
(b) In accordance with section 18(e), final approval relinquishes
Federal OSHA authority only with regard to occupational safety and
health issues covered by the Utah plan. OSHA retains full authority over
issues which are not subject to State enforcement under the plan. Thus,
Federal OSHA retains its authority relative to safety and health
enforcement in private sector maritime activities and will continue to
enforce all provisions of the Act, rules or orders, and all Federal
standards, current or future, specifically directed to maritime
employment (29 CFR Part 1915, shipyard employment; Part 1917, marine
terminals; Part 1918, longshoring; Part 1919, gear certification), as
well as provisions of general industry and construction standards (29
CFR Parts 1910 and 1926) appropriate to hazards found in these
employments. Federal jurisdiction is retained and exercised by the
Employment Standards Administration, U.S. Department of Labor,
(Secretary's Order 5-96, dated December 27, 1996) with respect to the
field sanitation standard, 29 CFR 1928.110, and the enforcement of the
temporary labor camps standard, 29 CFR 1910.142, in agriculture, as
described in Sec. 1952.114(b). Federal jurisdiction is also retained
with regard to: all employment on the Hill Air Force Base; Federal
government employers and employees; and the U.S. Postal Service (USPS),
including USPS employees, and contract employees and contractor-operated
facilities engaged in USPS mail operations. In addition, any hazard,
industry, geographical area, operation or facility over which the State
is unable to effectively exercise jurisdiction for reasons not related
to the required performance or structure of the plan shall be deemed to
be an issue not covered by the finally approved plan, and shall be
subject to Federal enforcement. Where enforcement jurisdiction is shared
between Federal and State authorities for a particular area, project, or
facility, in the interest of administrative practicability, Federal
jurisdiction may be assumed over the entire project or facility. In
either of the two aforementioned circumstances, Federal enforcement may
be exercised immediately upon agreement between Federal and State OSHA.
(c) Federal authority under provisions of the Act not listed in
section 18(e) is unaffected by final approval of the plan. Thus, for
example, the Assistant Secretary retains his authority under section
11(c) of the Act with regard to complaints alleging discrimination
against employees because of the exercise of any right afforded to the
employee by the Act, although such complaints may be referred to the
State for investigation. The Assistant Secretary also retains his
authority under section 6 of the Act to promulgate, modify or revoke
occupational safety and health standards which address the working
conditions of all employees, including those in States which have
received an affirmative 18(e) determination, although such standards may
not be Federally applied. In the event that the State's 18(e) status is
subsequently withdrawn and Federal authority reinstated, all
[[Page 36]]
Federal standards, including any standards promulgated or modified
during the 18(e) period, would be Federally enforceable in that State.
(d) As required by section 18(f) of the Act, OSHA will continue to
monitor the operations of the Utah State program to assure that the
provisions of the State plan are substantially complied with and that
the program remains at least as effective as the Federal program.
Failure by the State to comply with its obligations may result in the
revocation of the final determination under section 18(e), resumption of
Federal enforcement and/or proceedings for withdrawal of plan approval.
[50 FR 28780, July 16, 1985, as amended at 62 FR 2560, Jan. 17, 1997; 65
FR 36620, June 9, 2000]
Sec. 1952.116 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations:
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue NW., Room N3700,
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, 1999 Broadway Suite 1690,
Denver, Colorado 80202-5716; and
Office of the Commissioner, Labor Commission of Utah, 160 East 300
South, 3rd Floor, P.O. Box 146650, Salt Lake City, Utah 84114-6650.
[65 FR 36620, June 9, 2000]
Sec. 1952.117 Changes to approved plans.
In accordance with part 1953 of this chapter, the following Utah
plan changes were approved by the Assistant Secretary:
(a) Legislation. (1) The State submitted an amendment to the Utah
Administrative Rulemaking Act (chapter 46a, title 63, Utah Code
Annotated 1953), which became effective on April 29, 1985, which
provides for rulemaking procedures similar to those of Federal OSHA in
sections pertaining to expansion of definitions; availability of
proposed rule to the public; a set time period allowed for public
comment; the time period provided for a requested hearing to be held;
and, provisions for determining the validity or applicability of a rule
in an action for declaratory judgment. The Assistant Secretary approved
the amendment on October 24, 1988.
(2) The State submitted amendments to its Occupational Safety and
Health Act (chapter 69, Utah Code Annotated 1953), which became
effective on April 29, 1985, which provide for seeking administrative
warrants, clarify review procedures for the hearing examiner, provide
for issuing a permanent standard no later than 120 days after
publication of an emergency standard, and remove inconsistent
requirements for adopting rules and regulations. The Assistant Secretary
approved the amendments on October 24, 1988.
(3) On March 29, 1994, the Assistant Secretary approved Utah's
revised statutory penalty levels which are the same as the revised
Federal penalty levels contained in section 17 of the Act as amended on
November 5, 1990.
(b) The Voluntary Protection Program. On December 30, 1993, the
Assistant Secretary approved Utah's plan supplement, which is generally
identical to the Federal Voluntary Protection Program.
(c) Temporary labor camps/field sanitation. Effective February 3,
1997, the Assistant Secretary approved Utah's plan amendment, dated July
31, 1996, relinquishing coverage for the issues of field sanitation (29
CFR 1928.110) and temporary labor camps (29 CFR 1910.142) in agriculture
(except for agricultural temporary labor camps associated with egg,
poultry or red meat production, or the post-harvest processing of
agricultural or horticultural commodities.) The Employment Standards
Administration, U.S. Department of Labor, has assumed responsibility for
enforcement of these Federal OSHA standards in agriculture in Utah
pursuant to Secretary of Labor's Order 5-96, dated December 27, 1996.
[53 FR 43689, Oct. 28, 1988, as amended at 59 FR 2295, Jan. 14, 1994; 59
FR 14555, Mar. 29, 1994; 62 FR 2561, Jan. 17, 1997]
[[Page 37]]
Subpart F_Washington
Source: 38 FR 2422, Jan. 26, 1973, unless otherwise noted.
Sec. 1952.120 Description of the plan.
(a)(1) The plan identifies the Department of Labor and Industries as
the State agency designated to administer the plan throughout the State.
It adopts the definition of occupational safety and health issues
expressed in Sec. 1902.2(c)(1) of this chapter. The plan contains a
standards comparison of existing and proposed State standards with
Federal standards. All standards, except those found in 29 CFR parts
1915, 1916, 1917, and 1918 (ship repairing, shipbuilding, shipbreaking
and long shor ing) will be adopt ed and en forced after public hearings
within 1 year after the standards are found to be at least as effective
by the Secretary of Labor.
(2) The plan provides a description of personnel employed under a
merit system; the coverage of employees of political subdivisions,
procedures for the development and promulgation of standards, including
standards for protection of employees against new and unforeseen
hazards; and procedures for prompt restraint or elimination of imminent
danger situations.
(b)(1) The plan includes proposed draft legislation to be considered
by the Washington Legislature during its 1973 legislative session
creating a new chapter in title 49, Revised Code of Washington and
repealing existing provisions, to bring it into conformity with the
requirements of part 1902. Under the proposed legislation the Department
of Labor and Industries will have full authority to enforce and
administer laws respecting safety and health of employees in all
workplaces of the State. The legislation further proposes to bring the
State into conformity in areas such as variances and protection of
employees from hazards.
(2) The legislation is also intended to insure inspections in
response to complaints; give employer and employee representatives an
opportunity to accompany inspectors in order to aid inspections;
notification of employees or their representatives when no compliance
action is taken as a result of alleged violations, including informal
review; notification of employees of their protections and obligations;
protection of employees against discharge or discrimination in terms and
conditions of employment; adequate safeguards to protect trade secrets;
provision for prompt notice to employers and employees of alleged
violations of standards and abatement requirements; effective sanctions
against employers for violations of standards and orders; employer right
of review to the Board of Industrial Insurance Appeals and then to the
courts, and employee participation in review proceedings. The plan also
proposes to develop a program to encourage voluntary compliance by
employers and employees, including provision for on-site consultations.
(c) The plan includes a statement of the Governor's support for the
legislation and a legal opinion from the State attorney general that the
legislation will meet the requirements of the Occupational Safety and
Health Act of 1970 and is consistent with the Constitution and laws of
Washington. The plan sets out goals and provides a timetable for
bringing it into full conformity with part 1902 upon enactment of the
proposed legislation.
(d) The Washington plan includes the following documents as of the
date of approval:
(1) The plan description documents including draft legislation and
appendices in two volumes;
(2) Appendix 18, Standards Comparison;
(3) Letter from William C. Jacobs, Director, Department of Labor and
Industries to James W. Lake, Assistant Regional Director, OSHA, August
11, 1972, submitting justifications for discretionary sanctions for
serious violations and changing section 18(5) of WISHA to conform to the
mandatory civil penalty for posting violations under OSHA;
(4) Letter from John E. Hillier, Supervisor of Safety, Department of
Labor and Industries to Thomas C. Brown, Director, Office of Federal and
State Operations, August 19, 1972, submitting justifications on the
sanction system and the review procedure in the Washington plan;
(5) Letter from William C. Jacobs to Thomas C. Brown, September 19,
1972,
[[Page 38]]
justifying the sanction system as proposed by Washington;
(6) Letter from John E. Hillier to Thomas C. Brown, October 2, 1972,
providing a detailed explanation of the procedure for review of
citations proposed by Washington;
(7) Letter from Stephen C. Way, Assistant Attorney General to Thomas
C. Brown, October 19, 1972, clarifying several issues raised during the
review process including revision in the draft legislation;
(8) Letter from Stephen C. Way to the Assistant Secretary, January
5, 1973, clarifying most of the remaining issues raised during the
review process;
(9) Letter from William C. Jacobs to the Assistant Secretary,
January 12, 1973, revising the penalty structure in the draft
legislation.
(e) The public comments will also be available for inspection and
copying with the plan documents.
Sec. 1952.121 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations:
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue NW., Room N3700,
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, Suite 715, 1111 Third Avenue,
Seattle, Washington, 98101-3212;
Office of the Director, Washington Department of Labor and Industries,
General Administration Building, P.O. Box 44001, Olympia, Washington
98504-4001; and
Office of the Director, Washington Department of Labor and Industries,
General Administration Building, 7273 Linderson Way, SW., Tumwater,
Washington, 98502.
[65 FR 36620, June 9, 2000]
Sec. 1952.122 Level of Federal enforcement.
(a) Pursuant to Sec. Sec. 1902.20(b)(1)(iii) and 1954.3 of this
chapter under which an agreement has been entered into with Washington,
effective May 30, 1975, and amended several times effective October 2,
1979, May 29, 1981, April 3, 1987, and October 27, 1989; and based on a
determination that Washington is operational in the issues covered by
the Washington occupational safety and health plan, discretionary
Federal enforcement authority under section 18(e) of the Act (29 U.S.C.
667(e)) will not be initiated with regard to Federal occupational safety
and health standards in issues covered under 29 CFR Parts 1910 and 1926,
except as provided in this section. The U.S. Department of Labor will
continue to exercise authority, among other things, with regard to:
(1) Enforcement of new Federal standards until the State adopts a
comparable standard;
(2) Enforcement of all Federal standards, current and future, in the
maritime issues covered by 29 CFR Parts 1915, 1917, 1918, and 1919
(shipyards, marine terminals, longshoring, and gear certification), and
enforcement of general industry and construction standards (29 CFR Parts
1910 and 1926) appropriate to hazards found in these employments, as
they relate to employment under the exclusive jurisdiction of the
Federal government on the navigable waters of the United States,
including but not limited to dry docks or graving docks, marine railways
or similar conveyances (e.g., syncrolifts and elevator lifts), fuel
operations, drilling platforms or rigs, dredging and pile driving, and
diving;
(3) Complaints and violations of the discrimination provisions of
section 11(c) of the Act (29 U.S.C. 660(c));
(4) Enforcement in situations where the State is refused entry and
is unable to obtain a warrant or enforce its right of entry;
(5) Enforcement of unique and complex standards as determined by the
Assistant Secretary;
(6) Enforcement in situations when the State is unable to exercise
its enforcement authority fully or effectively;
(7) Enforcement of occupational safety and health standards within
the borders of all military reservations;
(8) Enforcement at establishments of employers who are federally
recognized Indian Tribes or enrolled members of these Tribes--including
establishments of the Yakama Indian Nation and Colville Confederated
Tribes, which were previously excluded by the State
[[Page 39]]
in 1987 and 1989 respectively--where such establishments are located
within the borders of Indian reservations, or on lands outside these
reservations that are held in trust by the Federal government for these
Tribes. (Non-member private sector or State and local government
employers located within a reservation or on Trust lands, and member
employers located outside the territorial boundaries of a reservation or
Trust lands, remain the responsibility of the State.);
(9) Investigations and inspections for the purpose of evaluation of
the Washington plan under sections 18(e) and (f) of the Act (29 U.S.C.
667(e) and (f)); and
(10) Enforcement of occupational safety and health standards with
regard to all Federal government employers and employees; and the U.S.
Postal Service (USPS), including USPS employees, and contract employees
and contractor-operated facilities engaged in USPS mail operations.
(b) The OSHA Regional Administrator will make a prompt
recommendation for the resumption of the exercise of Federal enforcement
authority under section 18(e) of the Act (29 U.S.C. 667(e)) whenever,
and to the degree, necessary to assure occupational safety and health
protection to employees in Washington.
[65 FR 36621, June 9, 2000, as amended at 69 FR 20829, Apr. 19, 2004]
Sec. 1952.123 Developmental schedule.
The Washington State plan is developmental. The following is the
developmental schedule as provided by the plan:
(a) Introduction of the legislation in the 1973 Legislative Session;
(b) Public hearings and promulgation of occupational safety and
health standards within 1 year after the proposed standards are found to
be at least as effective by the Secretary of Labor;
(c) Promulgation and adoption of rules and regulations concerning
procedures for assuming all obligations and functions arising from the
legislation within 1 year of its effective date;
(d) Development and implementation of a data processing system
(M.I.S.) 6 months after approval of the plan;
(e) Achievement of training objectives by December 31, 1973;
(f) Upgrading of the Division of Safety personnel following
legislative action on recommendations submitted to the 1973 Legislature.
Sec. 1952.124 Completion of developmental steps and certification.
(a) In accordance with the requirements of Sec. 1952.123(a) the
Washington Industrial Safety and Health Act of 1973, hereinafter
referred to as WISHA (S.B. 2386, RCW chapter 49.17), signed by the
Governor on March 9, 1973, effective on June 7, 1973, was approved July
3, 1974 (39 FR 25326).
(b) In accordance with the requirements of Sec. 1952.10, the
Washington State Poster submitted on October 6, 1975, was approved by
the Assistant Secretary on December 17, 1975. In accordance with the
State's formal assurance, the poster was revised, effective June 1,
1982, to specify that public employees can only file discrimination
complaints with the State because Federal jurisdiction under section
11(c) of the Act does not apply to State public employees. This revised
poster was approved by the Assistant Secretary on August 3, 1983.
(c) The Washington State Compliance Operations Manual, modeled after
the Federal Field Operations Manual, was developed by the State and was
approved by the Assistant Secretary on March 19, 1976. The manual was
subsequently revised on July 23, October 20, and December 1980, and was
approved by the Assistant Secretary on January 26, 1982. A March 1,
1983, revision to the manual which provided clarification of the
difference between temporary and permanent variances in accordance with
State formal assurances was approved by the Assistant Secretary on
August 3, 1983.
(d) In accordance with Sec. 1952.123(c), Washington regulations
covering Reassumption of Jurisdiction were adopted by June 7, 1974, and
were approved by the Assistant Secretary on March 19, 1976.
(e) In accordance with Sec. 1952.123(e) Washington has completed
the training as described in this section.
(f) In accordance with Sec. 1952.123(d) Washington has developed
and implemented a computerized Management Information System.
[[Page 40]]
(g) In accordance with Sec. 1952.123(f) Washington has completed
the upgrading of salaries of safety personnel.
(h) In accordance with Sec. 1952.123(c) Washington has adopted
rules and regulations covering recordkeeping and reporting requirements.
(i) An industrial hygiene operations manual, effective March 1,
1980, with revisions effective July 1 and September 21, 1981, modeled
after the Federal manual was approved by the Assistant Secretary on
January 26, 1982.
(j) In accordance with Sec. 1952.123(c), the Washington Department
of Labor and Industries adopted administrative regulations providing
procedures for conduct and scheduling of inspections, extension of
abatement dates, variances, employee complaints of hazards and
discrimination, posting of citations and notices, effective May 14,
1975, and revisions effective December 31, 1980, and July 22, 1981.
Likewise, the Washington Board of Industrial Insurance Appeals adopted
rules effective April 4, 1975, governing practice and procedure for
contested cases with revision effective March 26, 1976. These
regulations and rules were approved by the Assistant Secretary on
January 26, 1982. In accordance with State formal assurances the State
added provision to the regulations effective July 11, 1982, to require
posting of redetermination notices, settlements, notices related to
appeals; deleting an incorrect reference to administrative hearing
procedures used in workers compensation cases; requiring settlement
agreements to address abatement dates and penalty payments; and deleting
a requirement to put discrimination complaints in writing. These changes
were approved by the Assistant Secretary on August 3, 1983.
(k) In accordance with Sec. 1902.34 of this chapter, the Washington
occupational safety and health plan was certified effective January 26,
1982, as having completed all developmental steps specified in the plan
as approved on January 26, 1973 on or before January 26, 1976. This
certification attests to structural completion, but does not render
judgment on adequacy of performance.
[40 FR 59345, Dec. 23, 1975, as amended at 41 FR 12655, Mar. 26, 1976;
41 FR 17549, Apr. 27, 1976; 41 FR 23672, June 11, 1976; 41 FR 51016,
Nov. 19, 1976; 47 FR 5889, 5891, Feb. 9, 1982; 48 FR 37025, Aug. 16,
1983]
Sec. 1952.125 Changes to approved plans.
(a) In accordance with part 1953 of this chapter, the following
Washington plan changes were approved by the Assistant Secretary on
August 4, 1980.
(b) In accordance with subpart E of part 1953 of this chapter, the
Assistant Secretary has approved the participation of the Washington
Department of Labor and Industries in its November 17, 1989, agreement
with the Colville Confederated Tribes, concerning an internal
occupational safety and health program on the Colville reservation.
Under this agreement, Washington exercises enforcement authority over
non-Indian-owned workplaces under the legal authority set forth in its
State plan. (Federal OSHA will exercise enforcement authority over
Indian-owned or Tribal workplaces, as provided in 29 CFR 1952.122.)
(c) Legislation. (1) On March 29, 1994, the Assistant Secretary
approved Washington's revised statutory penalty levels which are the
same as the revised Federal penalty levels contained in section 17 of
the Act as amended on November 5, 1990.
[45 FR 53459, Aug. 12, 1980, as amended at 55 FR 37467, Sept. 12, 1990;
59 FR 14555, Mar. 29, 1994; 67 FR 60129, Sept. 25, 2002]
Subparts G-H [Reserved]
Subpart I_North Carolina
Sec. 1952.150 Description of the plan as initially approved.
(a) The Department of Labor has been designated by the Governor of
North Carolina to administer the plan throughout the State. The
Department of Labor has entered into an agreement with the State Board
of Health whereby the State Board of Health is to assist the Department
of Labor in the administration and enforcement of occupational health
standards. However,
[[Page 41]]
full authority for the promulgation and enforcement of occupational
safety and health standards remains with the Department of Labor. The
plan defines the covered occupational safety and health issues as
defined by the Secretary of Labor in Sec. 1902.2(c)(1) of this chapter.
Moreover, it is understood that the plan will cover all employers and
employees in the State except those whose working conditions are not
covered by the Federal act by virtue of section 4(b)(1) thereof,
dockside maritime and domestic workers. The Department of Labor is
currently exercising statewide inspection authority to enforce many
State standards. The plan describes procedures for the development and
promulgation of additional laws, and orders in all places of employment
in the State; the procedures for prompt restraint or elimination of
imminent danger conditions; and procedures for inspections in response
to complaints.
(b) The plan includes proposed draft legislation to be considered by
the North Carolina General Assembly during its 1973 session. Such
legislation is designed to implement major portions of the plan and to
bring it into conformity with the requirements of part 1902 of this
chapter.
(c) Under this legislation, all occupational safety and health
standards and amendments thereto which have been promulgated by the
Secretary of Labor, except those found in parts 1915, 1916, 1917, and
1918 of this chapter (ship repairing, shipbuilding, shipbreaking, and
longshoring) will be adopted upon ratification of the proposed
legislation. Enforcement of such standards will take place 90 days
thereafter.
(d) The legislation will give the Department of Labor full authority
to administer and enforce all laws, rules and orders protecting employee
safety and health in all places of employment in the State. It also
proposes to bring the plan into conformity in procedures for providing
prompt and effective standards for the protection of employees against
new and unforeseen hazards and for furnishing information to employees
on hazards, precautions, symptoms, and emergency treatment; and
procedures for variances.
(e) The proposed legislation will insure employer and employee
representatives an opportunity to accompany inspectors and to call
attention to possible violations before, during, and after inspections;
protection of employees against discharge or discrimination in terms and
conditions of employment; notice to employees of their protections and
obligations; adequate safeguards to protect trade secrets; prompt notice
to employers and employees of alleged violations of standards and
abatement requirements; effective sanctions against employers; and
employer's right to review of alleged violations, abatement periods, and
proposed penalties with opportunity for employee participation in the
review proceedings.
(f) The Plan also provides for the development of a program to
encourage voluntary compliance by employers and employees.
(g) The Plan includes a statement of the Governor's support for the
proposed legislation and a statement of legal opinion that it will meet
the requirements of the Occupational Safety and Health Act of 1970, and
is consistent with the constitution and laws of North Carolina. The Plan
sets out goals and provides a timetable for bringing it into full
conformity with part 1902 upon enactment of the proposed legislation by
the State legislature.
(h) The North Carolina Plan includes the following documents as of
the date of approval:
(1) The Plan description document with appendixes.
(2) Telegram from the Governor of North Carolina, James E.
Holshouser, Jr., expressing his full support for the Occupational Safety
and Health Act of North Carolina and his anticipation of its passage
during the 1973 session of the North Carolina General Assembly.
(3) Letter from W. C. Creel, Commissioner, North Carolina Department
of Labor, to Mr. Thomas C. Brown, Director, Federal and State
Operations, clarifying several issues raised during the review process.
(4) Also available for inspection and copying with the Plan
documents will
[[Page 42]]
be the public comments received during the review process.
[38 FR 3042, Feb. 1, 1973, as amended at 51 FR 2488, Jan. 17, 1986]
Sec. 1952.151 Developmental schedule.
The North Carolina Plan is developmental. The following is the
schedule of the developmental steps provided by the Plan:
(a) It is estimated that the draft bill will be enacted by April 1,
1973.
(b) The Federal standards will be adopted on the date the bill is
ratified.
(c) A refresher course for inspectors will begin sixty (60) days
after the enactment of the draft bill.
(d) Merit system examinations of current department of labor
personnel will be completed within sixty (60) days after Federal
acceptance of the State Plan.
(e) The hiring of new personnel in both the department of labor and
the State board of health will begin thirty (30) days after the
department is assured that State and Federal funds are available.
Tentative plans provide for both agencies to be fully staffed within six
(6) months after the enactment of the bill.
(f) All new personnel will receive official OSHA training in the
National Institute of Training. Employment dates will generally
correspond to dates established for the Institute schools.
(g) Employers and employees will be notified of the availability of
consultative services within ninety (90) days after ratification of the
draft bill.
(h) The Department of Labor will initiate a developmental plan for a
``Management Information System'' on the date of Plan approval. This
program is to be fully implemented in ninety (90) days after enactment
of the proposed legislation.
(i) The enforcement of standards will begin ninety (90) days after
ratification of the draft bill.
(j) A State Compliance Operations Manual is to be completed ninety
(90) days after ratification of the draft bill.
(k) The Commissioner will begin issuing administrative ``rules and
regulations'' when necessary as stated in the draft bill ninety (90)
days after ratification of the draft bill. Meanwhile, the Federal rules
and regulations will be adopted and applied until the State rules and
regulations are acceptable.
(l) Safety programs for State employees will begin one (1) year and
ninety (90) days after ratification of the draft bill, with full
implementation scheduled a year later.
(m) Safety programs for large counties and municipalities with over
10,000 population will be initiated ninety (90) days after draft bill
ratification. Full implementation will occur one (1) year later.
(n) Safety programs for other counties and municipalities with 4,000
to 10,000 population will be initiated within two (2) years and ninety
(90) days after Plan grant is approved. Full implementation will occur
three (3) years after grant award.
(o) Safety programs for towns and other governing units having
between 1,000 and 4,000 population will be initiated within two (2)
years and ninety (90) days after Plan grant is approved, with full
implementation within three years after grant award.
(p) A State ``Safety and Health'' poster will be prepared within
ninety (90) days after ratification of the draft bill.
(q) The State of North Carolina will be fully operational with
respect to agriculture 1 year and 90 days after enactment of the draft
bill.
[38 FR 3042, Feb. 1, 1973. Redesignated at 51 FR 2488, Jan. 17, 1986]
Sec. 1952.152 Completion of developmental steps and certification.
(a) In accordance with Sec. 1952.153(a) the Occupational Safety and
Health Act of North Carolina (S.B. 342, Chapter 295) was enacted by the
State legislature on May 1, 1973, and became effective on July 1, 1973.
(b) In accordance with Sec. 1952.153(b), the North Carolina
occupational safety and health standards identical to Federal standards
(thru 12-3-74) have been promulgated and approved, as revised, by the
Assistant Regional Director on March 11, 1975 (40 FR 11420).
(c)(1) In accordance with Sec. 1952.153(p) and the requirements of
29 CFR 1952.10, the North Carolina poster for private employers was
approved by the Assistant Secretary on April 17, 1975.
[[Page 43]]
(2) In accordance with Sec. 1952.153(p) and the requirements of 29
CFR 1952.10, the North Carolina poster for public employees was approved
by the Assistant Secretary on April 20, 1976.
(d) In accordance with Sec. 1952.153(q) full coverage of
agricultural workers by the North Carolina Department of Labor began on
April 1, 1974.
(e) The State plan has been amended to include an Affirmative Action
Plan in which the State outlines its policy of equal employment
opportunity.
(f) In accordance with Sec. 1952.153(c) all North Carolina
compliance personnel have completed refresher training courses.
(g) In accordance with Sec. 1952.153(d) all occupational safety and
health personnel in the North Carolina Department of Labor are covered
by the State merit system which the U.S. Civil Service Commission (by
letter dated January 22, 1976) has found to be in substantial conformity
with the ``Standards for a Merit System of Personel Administration.''
Agreement with the North Carolina Department of Human Resources
specifies that all health personnel cooperating in the State
occupational safety and health program are likewise covered by the State
merit system.
(h) In accordance with Sec. 1952.153(f) all North Carolina
compliance personnel have attended basic training courses at the OSHA
Institute in Chicago.
(i) In accordance with Sec. 1952.153(g) the North Carolina
Department of Labor has publicly disseminated information on the
availability of consultative services.
(j) In accordance with Sec. 1952.153(h) a manual Management
Information System which provides the quarterly statistical reports
required by the Assistant Secretary as well as internal management data
has been developed and is fully operational.
(k) In accordance with Sec. 1952.153(i) State enforcement of
standards began on July 1, 1973.
(l) In accordance with Sec. 1952.153(k) the State has promulgated
the following administrative ``rules and regulations'':
(1) Regulation 7B.0100: Inspections, Citations and Proposed
Penalties.
(2) Regulation 7B.0300: Recording and Reporting of Occupational
Injuries and Illnesses.
(3) Regulation 7B.0400: Rules of Practice for Variances.
(4) Regulation 7B.0500: Rules of Procedure for Promulgating,
Modifying or Revoking Occupational Safety and Health Standards.
(5) Regulation 7B.0700: State Advisory Council on Occupational
Safety and Health.
(m) The North Carolina Occupational Safety and Health Review Board
has adopted Rules of Procedure governing its review of contested cases.
(n) In accord with Sec. 1952.153(l), Safety programs for State
employees were initiated and implemented.
(o) In accord with Sec. 1952.153(m), Safety programs for large
counties and municipalities with over 10,000 population were initiated
and implemented.
(p) In accord with Sec. 1952.153(n), Safety programs for other
counties and municipalities with 4,000 to 10,000 population were
initiated and implemented.
(q) In accord with Sec. 1952.153(o), Safety programs for towns and
other governing units having between 1,000 and 4,000 population were
initiated and implemented.
(r) In accord with Sec. 1952.153(e) and Sec. 1902.3(d) the North
Carolina occupational safety and health program has been fully staffed.
(s) In accordance with Sec. 1952.153(j) the State has developed and
amended a Compliance Operations Manual which defines the procedures and
guidelines to be used by the North Carolina compliance staff in carrying
out the goals of the program.
(t) In accordance with Sec. 1902.34 of this chapter, the North
Carolina occupational safety and health plan was certified, effective
October 5, 1976, as having completed on or before March 31, 1976 all
development steps specified in the plan as approved on January 26, 1973.
[40 FR 18429, Apr. 28, 1975, as amended at 41 FR 17547, Apr. 27, 1976;
41 FR 22562, June 4, 1976; 41 FR 41083, Sept. 21, 1976; 41 FR 43897-
43900, 43902, Oct. 5, 1976. Redesignated at 51 FR 2488, Jan. 17, 1986]
[[Page 44]]
Sec. 1952.153 Compliance staffing benchmarks.
Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (``benchmarks'') necessary for a ``fully
effective'' enforcement program were required for each State operating
an approved State plan. In September 1984, North Carolina, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised benchmarks of 50 safety and 27
health compliance officers. After opportunity for public comment and
service on the AFL-CIO, the Assistant Secretary approved these revised
staffing requirements on January 17, 1986. In June 1990, North Carolina
reconsidered the information utilized in the initial revision of its
1980 benchmarks and determined that changes in local conditions and
improved inspection data warranted further revision of its benchmarks to
64 safety inspectors and 50 industrial hygienists. After opportunity for
public comment and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements on June 4, 1996.
[61 FR 28055, June 4, 1996]
Sec. 1952.154 Final approval determination.
(a) In accordance with section 18(e) of the Act and procedures in 29
CFR part 1902, and after determination that the State met the ``fully
effective'' compliance staffing benchmarks as revised in 1984 and 1996
in response to a court order in AFL-CIO v. Marshall, 570 F.2d 1030 (D.C.
Cir. 1978), and was satisfactorily providing reports to OSHA through
participation in the Federal-State Integrated Management Information
System, the Assistant Secretary evaluated actual operations under the
North Carolina State plan for a period of at least one year following
certification of completion of developmental steps (41 FR 43896). Based
on the Biennial Evaluation Report covering the period of October 1,
1993, through September 30, 1995, an 18(e) Evaluation Report covering
the period October 1, 1995, through June 30, 1996, and after opportunity
for public comment, the Assistant Secretary determined that in operation
the State of North Carolina's occupational safety and health program is
at least as effective as the Federal program in providing safe and
healthful employment and places of employment and meets the criteria for
final State plan approval in section 18(e) of the Act and implementing
regulations at 29 CFR part 1902. Accordingly, the North Carolina plan
was granted final approval and concurrent Federal enforcement authority
was relinquished under section 18(e) of the Act effective December 10,
1996.
(b) Except as otherwise noted, the plan which has received final
approval covers all activities of employers and all places of employment
in North Carolina. The plan does not cover Federal government employers
and employees; the U.S. Postal Service (USPS), including USPS employees,
and contract employees and contractor-operated facilities engaged in
USPS mail operations; the American National Red Cross; private sector
maritime activities; employment on Indian reservations; enforcement
relating to any contractors or subcontractors on any Federal
establishment where the land has been ceded to the Federal Government;
railroad employment; and enforcement on military bases.
(c) North Carolina is required to maintain a State program which is
at least as effective as operations under the Federal program; to submit
plan supplements in accordance with 29 CFR part 1953; to allocate
sufficient safety and health enforcement staff to meet the benchmarks
for State staffing established by the U.S. Department of Labor, or any
revisions to those benchmarks; and, to furnish such reports in such form
as the Assistant Secretary may from time to time require.
[61 FR 66601, Dec. 18, 1996, as amended at 65 FR 36621, June 9, 2000; 65
FR 62612, Oct. 19, 2000]
Sec. 1952.155 Level of Federal enforcement.
(a) As a result of the Assistant Secretary's determination granting
final approval to the North Carolina State plan under section 18(e) of
the Act, effective December 10, 1996, occupational safety and health
standards which have
[[Page 45]]
been promulgated under section 6 of the Act do not apply with respect to
issues covered under the North Carolina Plan. This determination also
relinquishes concurrent Federal OSHA authority to issue citations for
violations of such standards under sections 5(a)(2) and 9 of the Act; to
conduct inspections and investigations under section 8 (except those
necessary to conduct evaluation of the plan under section 18(f) and
other inspections, investigations, or proceedings necessary to carry out
Federal responsibilities not specifically preempted by section 18(e));
to conduct enforcement proceedings in contested cases under section 10;
to institute proceedings to correct imminent dangers under section 13;
and to propose civil penalties or initiate criminal proceedings for
violations of the Federal OSH Act under section 17. The Assistant
Secretary retains jurisdiction under the above provisions in any
proceeding commenced under section 9 or 10 before the effective date of
the 18(e) determination.
(b)(1) In accordance with section 18(e), final approval relinquishes
Federal OSHA authority only with regard to occupational safety and
health issues covered by the North Carolina plan. OSHA retains full
authority over issues which are not subject to State enforcement under
the plan. Thus, Federal OSHA retains its authority relative to safety
and health in private sector maritime activities and will continue to
enforce all provisions of the Act, rules or orders, and all Federal
standards, current or future, specifically directed to private sector
maritime activities (occupational safety and health standards comparable
to 29 CFR Parts 1915, shipyard employment; 1917, marine terminals; 1918,
longshoring; and 1919; gear certification, as well as provisions of
general industry and construction standards (29 CFR Parts 1910 and 1926)
appropriate to hazards found in these employments); employment on Indian
reservations; enforcement relating to any contractors or subcontractors
on any Federal establishment where the land has been ceded to the
Federal Government; railroad employment, not otherwise regulated by
another Federal agency; and enforcement on military bases. Federal
jurisdiction is also retained with respect to Federal government
employers and employees; the U.S. Postal Service (USPS), including USPS
employees, and contract employees and contractor-operated facilities
engaged in USPS mail operations; and the American National Red Cross.
(2) In addition, any hazard, industry, geographical area, operation
or facility over which the State is unable to effectively exercise
jurisdiction for reasons which OSHA determines are not related to the
required performance or structure of the plan shall be deemed to be an
issue not covered by the State plan which has received final approval,
and shall be subject to Federal enforcement. Where enforcement
jurisdiction is shared between Federal and State authorities for a
particular area, project, or facility, in the interest of administrative
practicability Federal jurisdiction may be assumed over the entire
project or facility. In any of the aforementioned circumstances, Federal
enforcement authority may be exercised after consultation with the State
designated agency.
(c) Federal authority under provisions of the Act not listed in
section 18(e) is unaffected by final approval of the North Carolina
State plan. Thus, for example, the Assistant Secretary retains his
authority under section 11(c) of the Act with regard to complaints
alleging discrimination against employees because of the exercise of any
right afforded to the employee by the Act, although such complaints may
be referred to the State for investigation. The Assistant Secretary also
retains his authority under section 6 of the Act to promulgate, modify
or revoke occupational safety and health standards which address the
working conditions of all employees, including those in States which
have received an affirmative 18(e) determination, although such
standards may not be Federally applied. In the event that the State's
18(e) status is subsequently withdrawn and Federal authority reinstated,
all Federal standards, including any standards promulgated or modified
during the 18(e) period, would be Federally enforceable in that State.
(d) As required by section 18(f) of the Act, OSHA will continue to
monitor
[[Page 46]]
the operations of the North Carolina State program to assure that the
provisions of the State plan are substantially complied with and that
the program remains at least as effective as the Federal program.
Failure by the State to comply with its obligations may result in the
revocation of the final approval determination under section 18(e),
resumption of Federal enforcement, and/or proceedings for withdrawal of
plan approval.
[61 FR 66601, Dec. 18, 1996, as ameded at 65 FR 36621, June 9, 2000; 65
FR 62612, Oct. 19, 2000]
Sec. 1952.156 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations:
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue NW, Room N3700,
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, Atlanta Federal Center, 61
Forsyth Street, SW, Room 6T50, Atlanta, Georgia 30303; and
Office of the Commissioner, North Carolina Department of Labor, 4 West
Edenton Street, Raleigh, North Carolina 27601-1092.
[65 FR 36621, June 9, 2000]
Sec. 1952.157 Changes to approved plan.
(a) Legislation. (1) On March 29, 1994, the Assistant Secretary
approved North Carolina's revised statutory penalty levels which are the
same as the revised Federal penalty levels contained in section 17 of
the Act as amended on November 5, 1990.
(2) [Reserved]
(b) The Voluntary Protection Program. On June 24, 1994, the
Assistant Secretary approved North Carolina's plan supplement, which is
generally identical to the Federal STAR Voluntary Protection Program.
North Carolina's ``Carolina'' VVP is limited to the STAR Program, and
excludes the MERIT and DEMONSTRATION Programs. Also, injury rates must
be at or below 50 percent of the State injury average rather than the
National injury average.
[59 FR 39257, Aug. 2, 1994]
Subpart J_Iowa
Sec. 1952.160 Description of the plan as initially approved.
(a)(1) The plan identifies the Bureau of Labor as the State agency
designated to administer the plan throughout the State. Its
responsibilities include both occupational safety and occupational
health, the latter on a developmental basis. The plan defines the
covered occupational safety and health issues as defined by the
Secretary of Labor in 29 CFR 1902.2(c)(i). Under existing occupational
safety and health legislation, effective July 1, 1972, Iowa has adopted
as interim standards all the occupational safety and health standards
and amendments thereto which had been promulgated by the Secretary of
Labor, except those found in 29 CFR parts 1915, 1916, 1917 and 1918
(Ship repairing, ship building, ship breaking and longshoring). Hearings
have been held on the adoption, as permanent standards, of the standards
in 29 CFR parts 1910 and 1926. Under its existing legislation, the
Bureau of Labor has exercised statewide inspection authority to enforce
State standards which are identical to Federal standards. The
legislation covers all employers including the State and its political
subdivisions and gives the Iowa Bureau of Labor full authority to
administer and enforce all laws, rules, and orders protecting employee
safety and health in all places of employment in the State.
(2) The legislation contains procedures for the promulgation of
standards, including standards for the prompt protection of employees
against new and unforeseen hazards; furnishing information to employees
on hazards, precautions, symptoms, and emergency treatment; procedures
for granting temporary and permanent variances; and for the protection
of employees from hazards. The law provides for inspections including
inspections in response to complaints; ensures employer and employee
representatives an opportunity to accompany inspectors and call
attention to possible violations before, during and after inspections;
protection of employees against discharge or discrimination in terms or
conditions of employment through
[[Page 47]]
court suits brought by the Bureau of Labor; notice to employees of their
protections and obligations under the State law; imminent danger
abatement through court injunctions; safeguards to protect trade
secrets; prompt notice to employers and employees of alleged violations
of standards and abatement requirements; effective sanctions against
employers; employer right to review of alleged violations, abatement
periods, and proposed penalties with an opportunity for employee
participation as parties; and employee review of any citation issued to
the employee, in review proceedings before the independent Review
Commission.
(3) The plan is developmental in the establishment of a compliance
program for agriculture, mercantile and service employees; development
of an occupational health program; developing a management information
system; and hiring and training of staff under the existing State merit
system.
(b) Included in the plan is a statement of the Governor's support
for the plan and a statement of legal opinion that the legislation will
meet the requirements of the Occupational Safety and Health Act of 1970
and is consistent with the Constitution and laws of Iowa. The plan sets
out goals and provides a timetable for bringing it into full conformity
with part 1902 at the end of three years after the commencement of
operations under the plan.
(c) The plan includes the following documents as of the date of
approval:
(1) The plan document with appendices;
(2) Letters from Jerry L. Addy, Commissioner of Labor, dated January
2, 1973, and March 21, 1973, with clarifications and modifications of
the plan;
(3) Iowa has also submitted the following regulations adopted by the
State:
(i) Chapter 3 of the Iowa Bureau of Labor Administrative Rules
dealing with inspections, citations, and proposed penalties, adopted
July 25, 1972;
(ii) Chapter 4 of the Iowa Bureau of Labor Administrative Rules
dealing with recording and reporting occupational injuries and illnesses
adopted July 11, 1973, and amended July 25, 1972;
(iii) Chapter 5 of the Iowa Bureau of Labor Administrative Rules
dealing with rules of practice for variances, limitations, variations,
tolerances, and exemptions adopted July 25, 1972, and amended October 5,
1972.
These adopted rules and regulations which were not part of the plan as
originally submitted will be evaluated in accordance with the review of
completions of developmental steps in State plans.
[37 FR 19370, July 20, 1973, as amended at 50 FR 27243, July 2, 1985]
Sec. 1952.161 Developmental schedule.
The Iowa State plan is developmental. The following is the
developmental schedule as amended and provided by the plan:
(a) Enabling legislation becomes effective (Chapter 88 of Iowa
Code)--July 1972.
(b) Corrective amendments to Chapter 88 of Iowa Code become
effective--July 1975.
(c) Adoption of Federal Standards as interim State standards--July
1972.
(d) Promulgation of Federal Standards as permanent State standards--
July 1973.
(e) Development of training program for employers and employees--
October 1974.
(f) Complete hiring of additional staff--April 1975.
(g) Basic training of staff--May 1975.
(h) Development of approved Manual MIS--July 1972.
(i) Commencement of compliance activities--July 1972.
(j) Development of compliance programs in Agriculture, Mercantile,
and Services--August 1975.
(k) Development of on-site consultation program--September 1975.
(l) Development of State poster--August 1975.
[41 FR 18836, May 7, 1976. Redesignated at 50 FR 27243, July 2, 1985]
Sec. 1952.162 Completion of developmental steps and certification.
(a) In accordance with the requirements of Sec. 1952.10, the Iowa
State poster was approved by the Assistant Secretary on August 26, 1975.
(b) In accordance with the requirements of Sec. 1952.163(b), the
Iowa Occupational Safety and Health Act of 1972
[[Page 48]]
(Iowa S.F. 1218--Chapter 88) is amended by Iowa Act S.F. 92, with an
effective date of July 1, 1975.
(c) In accordance with the commitment contained in Sec.
1952.163(a), the State of Iowa enacted occupational safety and health
enabling legislation which became effective on July 1, 1972.
(d) In accordance with the commitment contained in Sec.
1952.163(f), the State of Iowa, as of April 24, 1974, hired a sufficient
number of qualified safety and health personnel under the approved Iowa
Merit Employment Department system.
(e) In accordance with the commitment contained in Sec.
1952.163(g), all basic training of Iowa compliance personnel was
completed as of May 9, 1975.
(f) In accordance with the commitment contained in Sec.
1952.163(e), a program of education and training of employers and
employees was developed with local community colleges as of October
1974.
(g) In accordance with the commitment contained in Sec.
1952.163(h), the Iowa Bureau of Labor developed an approved manual
Management Information System as of July 1972.
(h) In accordance with the commitment contained in Sec.
1952.163(k), the Iowa Bureau of Labor initiated an approved program of
on-site consultation as of September 1975.
(i) In accordance with the commitment contained in Sec.
1952.163(c), the State of Iowa adopted Federal standards as interim
State standards under chapter 88 of the Iowa Code, effective on July 1,
1972.
(j) In accordance with the commitment contained in Sec.
1952.163(d), the State of Iowa promulgated Federal occupational safety
and health standards (29 CFR parts 1910 and 1926) as permanent State
Standards as of August 16, 1973.
(k) In accordance with the commitment contained in Sec.
1952.163(i), the Iowa Bureau of Labor began its compliance activities in
July 1973.
(l) In accordance with the commitment contained in Sec.
1952.163(j), the Iowa Bureau of Labor implemented compliance programs in
the agriculture, mercantile, and service issues by July 1975.
(m) In accordance with Sec. 1902.34 of this chapter, the Iowa
safety and health plan program was certified on September 14, 1976 as
having completed all developmental steps in its plan with regard to
those occupational safety and health issues specified in the plan on or
before July 20, 1976.
(n) Amendment to Chapter 4, Recording and Reporting Occupational
Injuries and Illnesses. Clarifications of the Iowa recordkeeping and
reporting rules.
(o) Amendment to Chapter 6, IOSH Consultative Services and Training.
Detailed procedures for safety consultants when they find a serious or
imminent danger hazard.
(p) Modifications to the Iowa Plan. Minor revisions to the Iowa plan
dealing with present staffing, position statements, legislative changes,
and current responsibilities of divisions in the Iowa Bureau of Labor.
[40 FR 40157, Sept. 2, 1975, as amended at 41 FR 23671, June 11, 1976;
41 FR 39028, Sept. 14, 1976; 44 FR 11067, Feb. 27, 1979. Redesignated
and amended at 50 FR 27243, July 2, 1985]
Sec. 1952.163 Compliance staffing benchmarks.
Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984, Iowa, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised compliance staffing benchmarks
of 16 safety and 13 health compliance officers. After opportunity for
public comment and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements effective July 2, 1985.
[50 FR 27243, July 2, 1985]
Sec. 1952.164 Final approval determination.
(a) In accordance with section 18(e) of the Act and procedures in 29
CFR part 1902, and after determination that the State met the ``fully
effective'' compliance staffing benchmarks as revised in 1984 in
response to a Court Order in AFL-CIO v. Marshall (CA 74-406), and was
satisfactorily providing reports to OSHA through participation in the
[[Page 49]]
Federal-State Unified Management Information System, the Assistant
Secretary evaluated actual operations under the Iowa State plan for a
period of at least one year following certification of completion of
developmental steps (41 FR 39027). Based on the 18(e) Evaluation Report
for the period of October 1982 through March 1984, and after opportunity
for public comment, the Assistant Secretary determined that in
operation, the State of Iowa occupational safety and health program is
at least as effective as the Federal program in providing safe and
healthful employment and places of employment and meets the criteria for
final State plan approval in section 18(e) of the Act and implementing
regulations at 29 CFR part 1902. Accordingly, the Iowa plan was granted
final approval and concurrent Federal enforcement authority was
relinquished under section 18(e) of the Act effective July 2, 1985.
(b) Except as otherwise noted, the plan which has received final
approval covers all activities of employers and all places of employment
in Iowa. The plan does not cover private sector maritime employment;
Federal government-owned, contractor-operated military/munitions
facilities; Federal government employers and employees; the U.S. Postal
Service (USPS), including USPS employees, and contract employees and
contractor-operated facilities engaged in USPS mail operations; bridge
construction projects spanning the Mississippi and Missouri Rivers
between Iowa and other States; the enforcement of the field sanitation
standard, 29 CFR 1928.110, and the enforcement of the temporary labor
camps standard, 29 CFR 1910.142, with respect to any agricultural
establishment where employees are engaged in ``agricultural employment''
within the meaning of the Migrant and Seasonal Agricultural Worker
Protection Act, 29 U.S.C. 1802(3), regardless of the number of
employees, including employees engaged in hand packing of produce into
containers, whether done on the ground, on a moving machine, or in a
temporary packing shed, except that Iowa retains enforcement
responsibility over agricultural temporary labor camps for employees
engaged in egg, poultry, or red meat production, or the post-harvest
processing of agricultural or horticultural commodities.
(c) Iowa is required to maintain a State program which is at least
as effective as operations under the Federal program; to submit plan
supplements in accordance with 29 CFR part 1953; to allocate sufficient
safety and health enforcement staff to meet the benchmarks for State
staffing established by the U.S. Department of Labor, or any revisions
to those benchmarks; and, to furnish such reports in such form as the
Assistant Secretary may from time to time require.
[50 FR 27243, July 2, 1985, as amended at 62 FR 2561, Jan. 17, 1997; 65
FR 36622, June 9, 2000]
Sec. 1952.165 Level of Federal enforcement.
(a) As a result of the Assistant Secretary's determination granting
final approval of the Iowa plan under section 18(e) of the Act,
effective July 2, 1985, occupational safety and health standards which
have been promulgated under section 6 of the Act do not apply with
respect to issues covered under the Iowa plan. This determination also
relinquishes concurrent Federal OSHA authority to issue citations for
violations of such standards under section 5(a)(2) and 9 of the Act; to
conduct inspections and investigations under section 8 (except those
necessary to conduct evaluation of the plan under section 18(f) and
other inspections, investigations, or proceedings necessary to carry out
Federal responsibilities not specifically preempted by section 18(e));
to conduct enforcement proceedings in contested cases under section 10;
to institute proceedings to correct imminent dangers under section 13;
and to propose civil penalties or initiate criminal proceedings for
violations of the Federal Act under section 17. The Assistant Secretary
retains jurisdiction under the above provisions in any proceeding
commenced under section 9 or 10 before the effective date of the 18(e)
determination.
(b)(1) In accordance with section 18(e), final approval relinquishes
Federal OSHA authority only with regard to occupational safety and
health issues covered by the Iowa plan. OSHA
[[Page 50]]
retains full authority over issues which are not subject to State
enforcement under the plan. Thus, Federal OSHA retains its authority
relative to safety and health in private sector maritime activities and
will continue to enforce all provisions of the Act, rules or orders, and
all Federal standards, current or future, specifically directed to
maritime employment (29 CFR Part 1915, shipyard employment; Part 1917,
marine terminals; Part 1918, longshoring; Part 1919, gear
certification), as well as provisions of general industry and
construction standards (29 CFR Parts 1910 and 1926) appropriate to
hazards found in these employments; Federal government-owned,
contractor-operated military/munitions facilities; bridge construction
projects spanning the Mississippi and Missouri Rivers between Iowa and
other States. Federal jurisdiction is retained and exercised by the
Employment Standards Administration, U.S. Department of Labor,
(Secretary's Order 5-96, dated December 27, 1996) with respect to the
field sanitation standard, 29 CFR 1928.110, and the enforcement of the
temporary labor camps standard, 29 CFR 1910.142, in agriculture, as
described in Sec. 1952.164(b). Federal OSHA will also retain authority
for coverage of all Federal government employers and employees; and of
the U.S. Postal Service (USPS), including USPS employees, and contract
employees and contractor-operated facilities engaged in USPS mail
operations.
(2) In addition, any hazard, industry, geographical area, operation
or facility over which the State is unable to effectively exercise
jurisdiction for reasons not related to the required performance or
structure of the plan shall be deemed to be an issue not covered by the
finally approved plan, and shall be subject to Federal enforcement.
Where enforcement jurisdiction is shared between Federal and State
authorities for a particular area, project, or facility, in the interest
of administrative practicability, Federal jurisdiction may be assumed
over the entire project or facility. In either of the two aforementioned
circumstances, Federal enforcement may be exercised immediately upon
agreement between Federal and State OSHA.
(c) Federal authority under provisions of the Act not listed in
section 18(e) is unaffected by final approval of the plan. Thus, for
example, the Assistant Secretary retains his authority under section
11(c) of the Act with regard to complaints alleging discrimination
against employees because of the exercise of any right afforded to the
employee by the Act, although such complaints may be referred to the
State for investigation. The Assistant Secretary also retains his
authority under section 6 of the Act to promulgate, modify or revoke
occupational safety and health standards which address the working
conditions of all employees, including those in States which have
received an affirmative 18(e) determination, although such standards may
not be Federally applied. In the event that the State's 18(e) status is
subsequently withdrawn and Federal authority reinstated, all Federal
standards, including any standards promulgated or modified during the
18(e) period, would be federally enforceable in that State.
(d) As required by section 18(f) of the Act, OSHA will continue to
monitor the operations of the Iowa State program to assure that the
provisions of the State plan are substantially complied with and that
the program remains at least as effective as the Federal program.
Failure by the State to comply with its obligations may result in the
revocation of the final determination under section 18(e), resumption of
Federal enforcement, and/or proceedings for withdrawal of plan approval.
[50 FR 27243, July 2, 1985, as amended at 62 FR 2561, Jan. 17, 1997; 65
FR 36622, June 9, 2000]
Sec. 1952.166 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations:
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue NW, Room N3700,
Washington, DC 20210;
[[Page 51]]
Office of the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, City Center Square, 1100 Main
Street, Suite 800, Kansas City, Missouri 64105; and
Office of the Commissioner, Iowa Division of Labor , 1000 E. Grand
Avenue, Des Moines, Iowa 50319.
[65 FR 36622, June 9, 2000]
Sec. 1952.167 Changes to approved plans.
(a) Legislation. (1) On March 29, 1994, the Assistant Secretary
approved Iowa's revised statutory penalty levels which are the same as
the revised Federal penalty levels contained in section 17 of the Act as
amended on November 5, 1990.
(2) [Reserved]
(b) Temporary labor camps/field sanitation. Effective February 3,
1997, the Assistant Secretary approved Iowa's plan amendment, dated
August 2, 1996, relinquishing coverage for the issues of field
sanitation (29 CFR 1928.110) and temporary labor camps (29 CFR 1910.142)
in agriculture (except for agricultural temporary labor camps associated
with egg, poultry or red meat production, or the post-harvest processing
of agricultural or horticultural commodities). The Employment Standards
Administration, U.S. Department of Labor, has assumed responsibility for
enforcement of these Federal OSHA standards in agriculture in Iowa
pursuant to Secretary of Labor's Order 5-96, dated December 27, 1996.
[59 FR 14555, Mar. 29, 1994, as amended at 62 FR 2561, Jan. 17, 1997]
Subpart K_California
Sec. 1952.170 Description of the plan.
(a) The State's program will be enforced by the Division of
Industrial Safety of the Department of Industrial Relations of the
California Agriculture and Services Agency. Current safety and health
standards will be continued unless amended by a State occupational
safety and health standards board to be created. This board will take
the amending action necessary to assure that State standards are as
effective as those established under the Federal program. Appeals from
the granting or denial of requests for variances will also come within
the jurisdiction of this board. Administrative adjudications will be the
responsibility of the California Occupational Safety and Health Appeals
Board.
(b) The State program is expected to extend its protection to all
employees in the State (including those employed by it and its political
subdivisions) except those employed by Federal agencies, certain
maritime workers, household domestic service workers, and railroad
workers not employed in railroad shops. (It is assumed that activities
excluded from the Occupational Safety and Health Act's jurisdiction by
section 4(b)(1) (29 U.S.C. 653(b)(1)) will also be excluded from the
State's jurisdiction under this plan.)
(c) The plan includes procedures for providing prompt and effective
standards for the protection of employees against new and unforeseen
hazards and for furnishing information to employees on hazards,
precautions, symptoms, and emergency treatment; and procedures for
variances and the protection of employee from hazards. It provides
employer and employee representatives an opportunity to accompany
inspectors and call attention to possible violations before, during, and
after inspections, protection of employees against discharge or
discrimination in terms and conditions of employment, notice to
employees or their representatives when no compliance action is taken
upon complaints, including informal review, notice to employees of their
protections and obligations, adequate safeguards to protect trade
secrets, prompt notice to employers and employees of alleged violations
of standards and abatement requirements, effective remedies against
employers, and the right to review alleged violations, abatement
periods, and proposed penalties with opportunity for employee
participation in the review proceedings; procedures for prompt restraint
or elimination of imminent danger conditions, and procedures for
inspection in response to complaints.
(d) Based on an analysis of California's standards comparison, the
State's standards corresponding to subparts F and K of this part, and
Sec. 1910.263 of this (chapter) in subpart R of this part, of the OSHA
standards have been determined to be at least as effective. These
[[Page 52]]
State standards contain no product standards corresponding to subpart F
State's developmental schedule provides that the remaining subparts will
be covered by corresponding State standards which are at least as
effective within 1 year of plan approval.
(e) The plan includes a statement of the Governor's support for the
proposed legislation and a statement of legal opinion that it will meet
the requirements of the Occupational Safety and Health Act of 1970, and
is consistent with the constitution and laws of California. The plan
sets out goals and provides a timetable for bringing it into full
conformity with part 1902 of this chapter upon enactment of the proposed
legislation by the State legislature. A merit system of personnel
administration will be used. In addition, efforts to achieve voluntary
compliance by employers and employees will include both on- and off-site
consultations. The plan is supplemented by letters dated March 21, 1973,
and April 10, 1973, from A. J. Reis, Assistant Secretary for
Occupational Safety and Health of the Agriculture and Service Agency of
the State of California.
[38 FR 10719, May 1, 1973]
Sec. 1952.171 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations:
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue NW, Room N3700,
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, 71 Stevenson Street, 4th
Floor, San Francisco, California 94105; and
Office of the Director, California Department of Industrial Relations,
455 Golden Gate Avenue, 10th Floor, San Francisco 94102.
[65 FR 36622, June 9, 2000]
Sec. 1952.172 Level of Federal enforcement.
(a) Pursuant to Sec. Sec. 1902.20(b)(1)(iii) and 1952.3 of this
chapter, under which a revised agreement has been entered into between
Frank Strasheim, OSHA Regional Administrator, and Ron Rinaldi, Director,
California Department of Industrial Relations, effective October 5,
1989, and based on a determination that California is operational in the
issues covered by the California occupational safety and health plan,
discretionary Federal enforcement authority under section 18(e) of the
Act (29 U.S.C. 667(e)) will not be initiated with regard to Federal
occupational safety and health standards in issues covered under 29 CFR
part 1910, 29 CFR part 1926, and 29 CFR part 1928, except as set forth
below.
(b) The U.S. Department of Labor will continue to exercise
authority, among other things, with regard to:
(1) Specific Federal standards which the State has not yet adopted
or with respect to which the State has not amended its existing State
standards when the Federal standard provides a significantly greater
level of worker protection than the corresponding Cal/OSHA standard,
enforcement of new permanent and temporary emergency Federal standards
until such time as the State shall have adopted equivalent standards,
and enforcement of unique and complex standards as determined by the
Assistant Secretary.
(2) The following maritime activities:
(i) Longshore operations on vessels from the shore side of the means
of access to said vehicles.
(ii) Marine vessels construction operations (from the means of
access of the shore).
(iii) All afloat marine ship building and repair from the foot of
the gangway.
(iv) All ship building and repair in graving docks or dry docks.
(v) All ship repairing done in marine railways or similar
conveyances used to haul vessels out of the water.
(vi) All floating fuel operations.
(vii) All afloat dredging and pile driving and similar operations.
(viii) All diving from vessels afloat on the navigable waters.
(ix) All off-shore drilling rigs operating outside the 3-mile limit.
(3) Any hazard, industry, geographical area, operation or facility
over which the State is unable to exercise jurisdiction fully or
effectively.
[[Page 53]]
(4) Private contractors on Federal installations where the Federal
agency claims exclusive Federal jurisdiction, challenges State
jurisdiction and/or refuses entry to the State; such Federal enforcement
will continue at least until the jurisdictional question is resolved at
the National level between OSHA and the cognizant Federal agency.
(5) Complaints filed with Federal OSHA alleging discrimination under
section 11(c) of the OSH Act.
(6) Completion of Federal enforcement actions initiated prior to the
effective date of the agreement.
(7) Situations where the State is refused entry and is unable to
obtain a warrant or enforce the right of entry.
(8) Enforcement in situations where the State temporarily is unable
to exercise its enforcement authority fully or effectively.
(9) Federal government employers and employees; and the U.S. Postal
Service (USPS), including USPS employees, and contract employees and
contractor-operated facilities engaged in USPS mail operations.
(c) As required by section 18(f) of the Act, OSHA will continue to
monitor the operations of the California State program to assure that
the provisions of the State plan are substantially complied with and
that the program remains at least as effective as the Federal program.
The Regional Administrator for Occupational Safety and Health will make
a prompt recommendation for the resumption of the exercise of Federal
enforcement authority under section 18(e) of the Act (29 U.S.C. 667(e))
whenever, and to the degree, necessary to assure occupational safety and
health protection to employees in California.
[55 FR 28613, July 12, 1990, as amended at 65 FR 36622, June 9, 2000]
Sec. 1952.173 Developmental schedule.
(a) Within 1 year following plan approval, legislation will be
enacted authorizing complete implementation of the plan and enforcement
rules and regulations will be promulgated, and an operations manual be
completed.
(b) By October 31, 1975, present standards will be amended or new
standards promulgated which are as effective and comprehensive as those
set forth in chapter XVII of this title 29 of the Code of Federal
Regulations;
(c) An exception to paragraphs (a) and (b) of this section exists
relative to radiation machines and other non-Atomic Energy Act sources
of radiation. The standards and enforcement program in this area will be
developed within 2 years of plan approval.
(d) Inter-agency agreements to provide technical support to the
program will be fully functioning within 1 year of plan approval.
(e) Inservice training plans for enforcement personnel will be
developed within 18 months of plan approval.
(f) A program of consultation with employers and employees will be
functioning within 6 months of plan approval.
(g) Within 3 years of plan approval all developmental steps will be
fully implemented.
(h) The Inspection Scheduling System will be fully implemented and
in operation March 31, 1975.
[38 FR 10719, May 1, 1973, as amended at 40 FR 18429, Apr. 28, 1975; 40
FR 40156, Sept. 2, 1975]
Sec. 1952.174 Completion of developmental steps and certification.
(a)(1) In accordance with Sec. 1952.173(a), The California
Occupational Safety and Health Act (Assembly Bill No. 150) was enacted
in September 1973 and filed with the California Secretary of State
October 2, 1973.
(2) The following difference between the program described in Sec.
1952.170(a) and the program authorized by the State law is approved:
Authority to grant or deny temporary variances rests with the Division
of Industrial Safety, and such authority for permanent variances is with
the Occupational Safety and Health Standards Board. The Board hears
appeals from the Division of Industrial Safety's decisions on temporary
variances.
(b) In accordance with Sec. 1952.173(d) formal interagency
agreements were negotiated and signed between the Department of
Industrial Relations and the State Department of Health (June 28, 1973)
and between the State Department of Industrial Relations and the State
Fire Marshal (August 14, 1973).
[[Page 54]]
(c) In accordance with Sec. 1952.173(f), a program of consultation
with employers and employees was fully functioning in January 1974.
(d) In accordance with the requirements of Sec. 1952.10, the
California State poster was approved by the Assistant Secretary on
August 27, 1975.
(e) The Occupational Safety and Health Standards Board began
functioning in January 1974.
(f) The initial major training and education of employers, employees
and the general public was completed by 1974.
(g) In accordance with Sec. 1952.173(a), recordkeeping and
reporting requirements were extended to State and local governments
effective January 1, 1975.
(h) The Management Information System was established by November
1974.
(i) The Occupational Safety and Health Appeals Board began
functioning in early 1974. The Rules of Procedure for the Board were
approved by the Assistant Secretary on November 19, 1975.
(j) In accordance with Sec. 1952.173(a), enforcement rules and
regulations were promulgated by January 1974, and were approved by the
Assistant Secretary on September 28, 1976.
(k) Recordkeeping and reporting requirements for private employers
were promulgated by November 1974, and were approved by the Assistant
Secretary on September 28, 1976.
(l) In accordance with Sec. 1952.173(h), the Inspection Scheduling
System was fully implemented and in operation by June 1975.
(m) In accordance with Sec. 1952.173(a), an operations manual was
published, and was approved by the Assistant Secretary on September 28,
1976.
(n) In accordance with Sec. 1952.173(e), in-service training
Programs for safety and health enforcement personnel were implemented
within 18 months of plan approval.
(o) Enforcement of standards pertaining to temporary labor camps was
implemented in March 1977.
(p) In accordance with Sec. 1903.34 of this chapter, the California
occupational safety and health plan was certified, effective August 12,
1977, as having completed all developmental steps specified in the plan
as approved on April 24, 1973, on or before June 1, 1976, with the
exception that temporary labor camp standards development and
enforcement program was completed on March 11, 1977.
[40 FR 18427, Apr. 28, 1975, as amended at 40 FR 40156, Sept. 2, 1975;
40 FR 54426, Nov. 24, 1975; 41 FR 43405, Oct. 1, 1976; 41 FR 51013, Nov.
19, 1976; 42 FR 37549, July 22, 1977; 42 FR 41858, Aug. 19, 1977]
Sec. 1952.175 Changes to approved plans.
(a) In accordance with part 1953 of this chapter, the California
carcinogen program implemented on January 1, 1977, was approved by the
Assistant Secretary on March 6, 1978.
(b) On January 1, 1978, the California Department of Industrial
Relations became the agency designated to administer the California
Occupational Safety and Health Plan.
(c) In accordance with part 1953 of this chapter, California amended
its employer recordkeeping and reporting requirements effective November
4, 1978, so as to provide employee access to the employer's log and
summary of occupational injuries and illnesses.
(d) In accordance with part 1953 of this chapter, California's
liaison with the Occupational Health Centers, implemented on April 25,
1979, was approved by the Assistant Secretary on July 25, 1980.
(e) In accordance with part 1953 of this chapter, the California
Hazard Alert System, implemented in July 1979, was approved by the
Assistant Secretary on July 25, 1980.
(f) In accordance with part 1953 of this chapter, the revised
stratification of the Safety Engineer Series, adopted by California on
July 1, 1979, was approved by the Assistant Secretary on January 12,
1981.
(g) In accordance with part 1953 of this chapter, California's Small
Employer Voluntary Compliance Program, implemented on March 1, 1981, was
approved by the Assistant Secretary on August 2, 1983.
(h) In accordance with part 1953 of this chapter, the California
Cooperative Self-Inspection Program was approved by the Assistant
Secretary on August 1, 1986.
[[Page 55]]
(i) Legislation. (1) On March 29, 1994, the Assistant Secretary
approved California's revised statutory penalty levels which are the
same as the revised Federal penalty levels contained in section 17 of
the Act as amended on November 5, 1990.
[43 FR 9807, Mar. 10, 1978, as amended at 44 FR 36385, June 22, 1979; 45
FR 8594, Feb. 8, 1980; 45 FR 51766, Aug. 5, 1980; 46 FR 3861, Jan. 16,
1981; 48 FR 34951, Aug. 2, 1983; 51 FR 27535, Aug. 1, 1986; 59 FR 14556,
Mar. 29, 1994; 67 FR 60129, Sept. 25, 2002]
Subparts L-M [Reserved]
Subpart N_Minnesota
Sec. 1952.200 Description of the plan as initially approved.
(a) The Department of Labor and Industry is the State agency
designated by the Governor to administer the plan throughout the State.
The plan defines the covered occupational safety and health issues as
defined by the Secretary of Labor in 29 CFR 1902.2(c)(1). The
commissioner of the Department of Labor and Industry adopted Federal
standards promulgated as of October 1972, effective in Minnesota,
February 1973. The commissioner will continue to adopt Federal standards
and will retain those Minnesota standards not covered by Federal
standards. The plan contains a list of the Federal standards adopted and
the State standards that will be retained. These standards will be
enforced according to current legislative authority in Minnesota prior
to the effective date of Minnesota's enabling legislation submitted as
part of the plan.
(b)(1) The plan includes legislation enacted by the Minnesota
legislature during its 1973 session. Under the legislation the
Department of Labor and Industry will have full authority to enforce and
administer laws respecting safety and health of employees in all
workplaces of the State, including coverage of public employees, with
the exception of maritime workers in the areas of exclusive Federal
jurisdiction, employees of the United States, and employees whose
working conditions are regulated by Federal agencies other than the U.S.
Department of Labor under the provisions of section 4(b)(1) of the
Occupational Safety and Health Act of 1970.
(2) The legislation further proposed to bring the plan into
conformity with the requirements of 29 CFR part 1902 in areas such as
procedures for granting or denying temporary and permanent variances by
the commissioner; protection of employees from hazards; procedures for
the development and promulgation of standards by the commissioner,
including emergency temporary standards; and procedures for prompt
restraint or elimination of imminent danger situations by issuance of a
``red-tag'' order effective for 3 days as well as by court injunction.
(3) The legislation is also intended to insure inspections in
response to complaints; give employer and employee representatives an
opportunity to accompany inspectors in order to aid inspections and that
loss of any privilege or payment to an employee as a result of aiding
such inspection would constitute discrimination; notification of
employees or their representatives where no compliance action is taken
as a result of alleged violations, including informal review;
notification of employees of their protections and obligations;
protection of employees against discharge or discrimination in terms and
conditions of employment by filing complaints with the commissioner and
hearings by the review commission; adequate safeguards to protect trade
secrets; provision for prompt notice to employers and employees of
alleged violations of standards and abatement requirements through the
issuance and posting of citations; a system of sanctions against
employers for violation of standards; employer right of review and
employee participation in review proceedings, before an independent
review commission; and coverage of employees of the State and political
subdivisions in the same manner as private employees.
(c) Included in the plan is a statement of the Governor's support
for the legislation and a statement of legal opinion that it will meet
the requirements of the Occupational Safety and Health Act of 1970 and
is consistent with the constitution and laws of Minnesota. The plan sets
out goals and provides a timetable for bringing it
[[Page 56]]
into full conformity with part 1902 at the end of 3 years after
commencement of operations under the plan. Personnel will be employed
under the existing State merit system and the voluntary compliance
program for onsite consultation for private and public employers meets
the conditions set forth in the issues discussed in the Washington
decision (38 FR 2421, January 26, 1973).
(d) The plan includes the following documents as of the date of
approval:
(1) The plan document and appendices;
(2) Revised legislation, submitted January 25, 1973;
(3) Compliance manual and supplements to the plan document, February
15, 1973;
(4) Letters from the Department of Labor and Industry dated February
8, 1973, and April 9, 1973.
[38 FR 15077, June 8, 1973, as amended at 50 FR 30831, July 30, 1985]
Sec. 1952.201 Developmental schedule.
(a) Retraining of present occupational safety and health personnel
during March-May 1973;
(b) Training sessions for public employers and employees during
April-June 1973;
(c) Effective date of legislation, August 1, 1973;
(d) Regulations on variances, August 1973;
(e) Management information system, August 1973;
(f) Staff increases in Department of Labor and Industry and
Department of Health 1973-74;
(g) Voluntary compliance program implemented by January 1975;
(h) Coverage and enforcement of standards regarding agriculture,
July 1975.
[38 FR 15077, June 8, 1973. Redesignated at 50 FR 30831, July 30, 1985]
Sec. 1952.202 Completion of developmental steps and certification.
(a) In accordance with the requirements of Sec. 1952.10, the
Minnesota State poster was approved by the Assistant Secretary on March
7, 1975.
(b) In accordance with Sec. 1952.203(g), the Minnesota voluntary
compliance program became effective on January 1, 1975, and was approved
by the Assistant Secretary on April 24, 1975.
(c) State occupational safety and health personnel were retrained
during March-May 1973.
(d) Training sessions for public employers and employees were held
during April-June 1973.
(e) The Minnesota enabling legislation became effective on August 1,
1973. In addition, amendments to the legislation which concerned
employee discrimination complaints and violations became effective on
July 1, 1975, and a second amendment concerning the definition of a
serious violation, posting of citations and penalties, right of
employees to contest a citation and penalty, and furnishing copies of
citations and notices of penalties to employer representatives and, in
the case of a fatality, to the next of kin or a designated
representative, became effective on August 1, 1975.
(f) Regulations on variances were promulgated on February 20, 1974,
and were approved with assurances by the Assistant Secretary on August
31, 1976.
(g) The management information system became operable in August
1973.
(h) Coverage and enforcement of agricultural standards commenced on
July 1, 1975.
(i) The Rules of Procedure of the Minnesota Occupational Safety and
Health Review Commission, chapter 20, Minnesota Occupational Safety and
Health Code, and regulations concerning inspections, citations, and
proposed penalties, chapter 21, Minnesota Occupational Safety and Health
Code, were approved by the Assistant Secretary on August 31, 1976.
(j) The downward revision of the projected increase in personnel for
fiscal year 1976 due to a lesser than anticipated increase of funding by
the Minnesota legislature, was approved by the Assistant Secretary as
meeting current required staffing on August 31, 1976.
(k) The State poster approved on March 25, 1975 (40 FR 13211) which
was revised in response to legislative amendments described above, to
provide that citations and notices of penalties must be posted at or
near the place of the alleged violation for 15 days or until the
violation is corrected,
[[Page 57]]
whichever is later, and which lists additional Minnesota area offices,
was approved by the Assistant Secretary on August 31, 1976.
(l) In accordance with Sec. 1902.34 of this chapter, the Minnesota
occupational safety and health plan was certified, effective September
28, 1976, as having completed all developmental steps specified in the
plan as approved on May 29, 1973, on or before June 30, 1976.
[40 FR 13212, Mar. 25, 1975, as amended at 40 FR 18996, May 1, 1975.
Redesignated at 50 FR 30831, July 30, 1985]
Sec. 1952.203 Compliance staffing benchmarks.
Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984 Minnesota, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised compliance staffing benchmarks
of 31 safety and 12 health compliance officers. After opportunity for
public comment and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements on July 30, 1985.
[50 FR 30832, July 30, 1985]
Sec. 1952.204 Final approval determination.
(a) In accordance with section 18(e) of the Act and procedures in 29
CFR part 1902, and after determination that the State met the ``fully
effective'' compliance staffing benchmarks as revised in 1984 in
response to a Court Order in AFL-CIO v. Marshall (CA 74-406), and was
satisfactorily providing reports to OSHA through participation in the
Federal-State Unified Management Information System, the Assistant
Secretary evaluated actual operations under the Minnesota State plan for
a period of at least one year following certification of completion of
developmental steps (41 FR 42659). Based on the 18(e) Evaluation Report
for the period of October 1982 through March 1984, and after opportunity
for public comment, the Assistant Secretary determined that in operation
the State of Minnesota's occupational safety and health program is at
least as effective as the Federal program in providing safe and
healthful employment and places of employment and meets the criteria for
final State plan approval in section 18(e) of the Act and implementing
regulations at 29 CFR part 1902. Accordingly, the Minnesota plan was
granted final approval, and concurrent Federal enforcement authority was
relinquished under section 18(e) of the Act effective July 30, 1985.
(b) Except as otherwise noted, the plan which has received final
approval covers all activities of employers and all places of employment
in Minnesota. The plan does not cover private sector offshore maritime
employment on the navigable waters of the United States; employment at
the Twin Cities Army Ammunition Plant; Federal government employers and
employees; the U.S. Postal Service (USPS), including USPS employees, and
contract employees and contractor-operated facilities engaged in USPS
mail operations; any tribal or private sector employment within any
Indian reservation in the State; the enforcement of the field sanitation
standard, 29 CFR 1928.110, and the enforcement of the temporary labor
camps standard, 29 CFR 1910.142, with respect to any agricultural
establishment where employees are engaged in ``agricultural employment''
within the meaning of the Migrant and Seasonal Agricultural Worker
Protection Act, 29 U.S.C. 1802(3), regardless of the number of
employees, including employees engaged in hand packing of produce into
containers, whether done on the ground, on a moving machine, or in a
temporary packing shed, except that Minnesota retains enforcement
responsibility over agricultural temporary labor camps for employees
engaged in egg, poultry, or red meat production, or the post-harvest
processing of agricultural or horticultural commodities.
(c) Minnesota is required to maintain a State program which is at
least as effective as operations under the Federal program; to submit
plan supplements in accordance with 29 CFR part 1953; to allocate
sufficient safety and health enforcement staff to meet the benchmarks
for State staffing established by
[[Page 58]]
the U.S. Department of Labor, or any revisions to those benchmarks; and,
to furnish such reports in such form as the Assistant Secretary may from
time to time require.
[50 FR 30832, July 30, 1985, as amended at 62 FR 2561, Jan. 17, 1997; 65
FR 36622, June 9, 2000]
Sec. 1952.205 Level of Federal enforcement.
(a) As a result of the Assistant Secretary's determination granting
final approval to the Minnesota plan under section 18(e) of the Act,
effective July 30, 1985, occupational safety and health standards which
have been promulgated under section 6 of the Act do not apply with
respect to issues covered under the Minnesota plan. This determination
also relinquishes concurrent Federal OSHA authority to issue citations
for violations of such standards under sections 5(a)(2) and 9 of the
Act; to conduct inspections and investigations under section 8 (except
those necessary to conduct evaluation of the plan under section 18(f)
and other inspections, investigations, or proceedings necessary to carry
out Federal responsibilities not specifically preempted by section
18(e)); to conduct enforcement proceedings in contested cases under
section 10; to institute proceedings to correct imminent dangers under
section 13; and to propose civil penalties or initiate criminal
proceedings for violations of the Federal Act under section 17. The
Assistant Secretary retains jurisdiction under the above provisions in
any proceeding commenced under section 9 or 10 before the effective date
of the 18(e) determination.
(b)(1) In accordance with section 18(e), final approval relinquishes
Federal OSHA authority only with regard to occupational safety and
health issues covered by the Minnesota plan. OSHA retains full authority
over issues which are not subject to State enforcement under the plan.
Thus, Federal OSHA retains its authority relative to safety and health
in private sector offshore maritime activities and will continue to
enforce all provisions of the Act, rules or orders, and all Federal
standards, current or future, specifically directed to maritime
employment (29 CFR Part 1915, shipyard employment; Part 1917, marine
terminals; Part 1918, longshoring; Part 1919, gear certification) as
well as provisions of general industry and construction standards (29
CFR Parts 1910 and 1926) appropriate to hazards found in these
employments, as they relate to employment under the exclusive
jurisdiction of the Federal government on the navigable waters of the
United States. Federal jurisdiction is retained and exercised by the
Employment Standards Administration, U.S. Department of Labor,
(Secretary's Order 5-96, dated December 27, 1996) with respect to the
field sanitation standard, 29 CFR 1928.110, and the enforcement of the
temporary labor camps standard, 29 CFR 1910.142, in agriculture, as
described in Sec. 1952.204(b). Federal jurisdiction is also retained
over the Twin Cities Army Ammunition Plant; over Federal government
employers and employees; over any tribal or private sector employment
within any Indian reservation in the State; and over the U.S. Postal
Service (USPS), including USPS employees, and contract employees and
contractor-operated facilities engaged in USPS mail operations.
(2) In addition, any hazard, industry, geographical area, operation
or facility over which the State is unable to effectively exercise
jurisdiction for reasons not related to the required performance or
structure of the plan shall be deemed to be an issue not covered by the
finally approved plan, and shall be subject to Federal enforcement.
Where enforcement jurisdiction is shared between Federal and State
authorities for a particular area, project, or facility, in the interest
of administrative practicability, Federal jurisdiction may be assumed
over the entire project or facility. In either of the two aforementioned
circumstances, Federal enforcement may be exercised immediately upon
agreement between Federal and State OSHA.
(c) Federal authority under provisions of the Act not listed in
section 18(e) is unaffected by final approval of the plan. Thus, for
example, the Assistant Secretary retains his authority under section
11(c) of the Act with regard to complaints alleging discrimination
against employees because of the
[[Page 59]]
exercise of any right afforded to the employee by the Act, although such
complaints may be referred to the State for investigation. The Assistant
Secretary also retains his authority under section 6 of the Act to
promulgate, modify or revoke occupational safety and health standards
which address the working conditions of all employees, including those
in States which have received an affirmative 18(e) determination,
although such standards may not be Federally applied. In the event that
the State's 18(e) status is subsequently withdrawn and Federal authority
reinstated, all Federal standards, including any standards promulgated
or modified during the 18(e) period, would be Federally enforceable in
that State.
(d) As required by section 18(f) of the Act, OSHA will continue to
monitor the operations of the Minnesota State program to assure that the
provisions of the State plan are substantially complied with and that
the program remains at least as effective as the Federal program.
Failure by the State to comply with its obligations may result in the
revocation of the final determination under section 18(e), resumption of
Federal enforcement, and/or proceedings for withdrawal of plan approval.
[50 FR 30832, July 30, 1985, as amended at 62 FR 2562, Jan. 17, 1997; 65
FR 36623, June 9, 2000]
Sec. 1952.206 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations:
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue NW, Room N3700,
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, 230 S. Dearborn Street, 32nd
Floor, Room 3244, Chicago, Illinois 60604; and
Office of the Commissioner, Minnesota Department of Labor and Industry,
443 Lafayette Road, St. Paul, Minnesota 55155.
[65 FR 36623, June 9, 2000]
Sec. 1952.207 Changes to approved plans.
(a) Legislation. (1) On March 29, 1994, the Assistant Secretary
approved Minnesota's revised statutory penalty levels which are the same
as the revised Federal penalty levels contained in section 17 of the Act
as amended on November 5, 1990.
(2) [Reserved]
(b) Temporary labor camps/field sanitation. Effective February 3,
1997, the Assistant Secretary approved Minnesota's plan amendment, dated
July 24, 1996, relinquishing coverage for the issues of field sanitation
(29 CFR 1928.110) and temporary labor camps (29 CFR 1910.142) in
agriculture (except for agricultural temporary labor camps associated
with egg, poultry or red meat production, or the post-harvest processing
of agricultural or horticultural commodities). The Employment Standards
Administration, U.S. Department of Labor, has assumed responsibility for
enforcement of these Federal OSHA standards in agriculture in Minnesota
pursuant to Secretary of Labor's Order 5-96, dated December 27, 1996.
[59 FR 14556, Mar. 29, 1994, as amended at 62 FR 2562, Jan. 17, 1997]
Subpart O_Maryland
Sec. 1952.210 Description of the plan as initially approved.
(a) The Division of Labor and Industry in the Department of
Licensing and Regulation is the State agency designated by the Governor
to administer the plan throughout the State. The plan defines the
covered occupational safety and health issues on the basis of Major
Groups in the Standard Industrial Classification (SIC) Manual of the
Office of Management and Budget of the Executive Office of the
President. The Commissioner of the Division of Labor and industry
promulgated the Federal standards existing as of February 2, 1973. These
standards were effective in Maryland as of March 8, 1973, and they will
be enforced according to current State legislative authority prior to
the effective date of Maryland's enabling legislation, July 1, 1973.
Maryland also intends to adopt those Federal standards applicable to
ship repairing, ship building, ship breaking
[[Page 60]]
and longshoring except where prohibited by exclusive Federal maritime
jurisdiction. Subsequent revisions to Federal standards will be
considered by the State Occupational Safety and Health Advisory Board
which will make recommendations on adoption of at least as effective
standards to the Commissioner within 6 months after Federal
promulgation. Maryland also includes in its plan State boiler and
elevator standards where applicable.
(b)(1) The plan included draft legislation which has been passed by
the State legislature and signed by the Governor. The legislation as
enacted has been included as a supplement to the plan. Under the
legislation, effective July 1, 1973, the Division of Labor and Industry
in the Department of Licensing and Regulation has full authority to
enforce and administer laws respecting safety and health of employees in
all workplaces of the State, including coverage of public employees,
with the exception of maritime workers in the areas of exclusive Federal
jurisdiction; employees of the United States; and employees whose
working conditions are protected under enumerated Federal laws.
(2) The legislation brings the plan into conformity with the
requirements of 29 CFR part 1902 in areas such as procedures for
granting or denying temporary and permanent variances to rules,
regulations or standards by the Commissioner; protection of employees
from hazards including provision for medical examinations made available
by the employer or at his cost; procedures for the development of
standards by the Occupational Safety and Health Advisory Board;
promulgation of these standards as recommended by the Commissioner;
promulgation of emergency temporary standards by the Commissioner with
referral to the Board to develop a permanent standard; procedures for
prompt restraint or elimination of imminent danger situations by
issuance of a ``red-tag'' order with court review as well as by court
injunction.
(3) The legislation provides for inspections in response to
complaints; gives employer and employee representatives an opportunity
to accompany inspectors in order to aid inspections; notification of
employees or their representatives when no compliance action is taken as
a result of alleged violations, including informal review; protection of
employees against discharge or discrimination in terms and conditions of
employment by filing complaints with the Commissioner who will seek
court action; adequate safeguards to protect trade secrets; provision
for prompt notice to employers and employees of alleged violations of
standards and abatement requirements through the issuance and posting of
citations; a system of sanctions against employers for violations of
standards; employer right of review and employee participation in review
proceedings before the Commissioner with subsequent judicial review; and
coverage of employees of the State and political subdivisions in a
separate program supervised by the Commissioner in accordance with the
requirements described in the North Carolina decision (38 FR 3041).
(c) Included in the plan is a statement of legal opinion that the
law, which was supported by the Governor in accordance with the
requirements of part 1902, meets the requirements of the Occupational
Safety and Health Act of 1970 and is consistent with the Constitution
and laws of Maryland. The plan sets out goals and provides a timetable
for bringing it into full conformity with part 1902 at the end of three
years after the commencement of operations under the plan. Personnel
will be employed under the existing State merit system with the
revisions in qualifications as stated in supplements to the plan, and
the voluntary compliance program for on-site consultation meets the
conditions set forth in the issues discussed in the Washington decision
(38 FR 2421).
(d) The plan includes the following documents as of the date of
approval.
(1) The plan document in two volumes.
(2) Maryland Occupational Safety and Health Act of 1973, effective
July 1, 1973.
(3) ``A Program for Control of Occupational Health Hazards in
Maryland'' by Johns Hopkins University Department of Environmental
Medicine.
[[Page 61]]
(4) Letters from the Division of Labor and Industry dated February
9, 1973; March 6, 1973; March 22, 1973; May 2, 1973 and May 21, 1973.
(5) Maryland's Administrative Procedure Act Article 41 sections 244
et seq.
[38 FR 17837, July 5, 1973, as amended at 50 FR 29219, July 18, 1985]
Sec. 1952.211 Developmental schedule.
(a) Occupational health study accepted and implementation begun
July, 1973;
(b) Compliance Manual developed by July, 1973;
(c) Management Information System, December, 1975;
(d) Training in compliance procedures by August, 1973;
(e) Promulgation of standard-setting procedures, August, 1973;
(f) Inspection and enforcement program, except as provided in
paragraph (k), in September, 1973;
(g) Staff of hearing examiners and review procedures set up in
September, 1973;
(h) Variance procedures and emergency temporary standard-setting
procedures promulgated October, 1973;
(i) Review of appeal procedures to see if it should be continued or
modified, July, 1974;
(j) Review of job qualifications within one year of plan approval;
(k) Inspection and enforcement of agriculture standards by December,
1974;
(l) Fully operational occupational health program, July, 1975;
(m) Fully implemented public employees program, December, 1975;
[38 FR 17837, July 5, 1973, as amended at 41 FR 45564, Oct. 15, 1976.
Redesignated at 50 FR 29219, July 18, 1985]
Sec. 1952.212 Completion of developmental steps and certification.
(a) In accordance with part 1953 of this chapter, the Maryland
occupational safety and health standards were approved by OSHA on
October 3, 1974.
(b) In accordance with the requirements of 29 CFR 1952.10, the
Maryland State poster was approved by the Assistant Secretary on June 6,
1975.
(c) In accordance with the commitment expressed in Sec.
1952.213(l), the State of Maryland developed and implemented an
occupational health plan by December 31, 1975.
(d) In accordance with the commitment expressed in Sec.
1952.213(n), the designee developed a fully operational Management
Information System by May 1, 1975.
(e) In accordance with 29 CFR 1952.213(d), training of Maryland
compliance personnel in compliance procedure was completed by December
31, 1975.
(f) In accordance with 29 CFR 1952.213(f), the Maryland inspection
and enforcement program was implemented by September 1973.
(g) In accordance with 29 CFR 1952.213(j), review of the appeal
procedures to see if they should be continued or modified was conducted
by the State by May 1975.
(h) In accordance with 29 CFR 1952.213(b), Maryland completed
development of a Compliance Manual.
(i) In accordance with 29 CFR 1952.213(e), the State has promulgated
acceptable standard-setting procedures.
(j) In accordance with 29 CFR 1952.213(h), Maryland promulgated
acceptable variance procedures and emergency temporary standard-setting
procedures.
(k) In accordance with 29 CFR 1952.213(j), review of the job
qualifications of State personnel was conducted by the State.
(l) In accordance with 29 CFR 1952.213(m), the State of Maryland has
developed and implemented a safety and health program for public
employees
(m) In accordance with 29 CFR 1952.213(a), the State submitted an
occupational health study, and the State's occupational health plan is
being implemented.
(n) In accordance with 29 CFR 1952.213(g), the State established a
staff of hearing examiners and review procedures.
(o) In accordance with 29 CFR 1952.213(k), agricultural standards
are being enforced by the Maryland Department of Labor and Industry.
(p) In accordance with Sec. 1902.34 of this chapter, the Maryland
occupational safety and health plan was certified effective February 15,
1980, as having
[[Page 62]]
completed all developmental steps specified in the plan as approved on
July 5, 1973, on or before August 31, 1976. This certification attests
to structural completion, but does not render judgment on adequacy of
performance.
[40 FR 25207, June 13, 1975, as amended at 41 FR 45564, Oct. 15, 1976;
42 FR 10988, Feb. 25, 1977; 44 FR 28326, 28327, May 15, 1979; 45 FR
10337, Feb. 15, 1980. Redesignated at 50 FR 29219, July 18, 1985, as
amended at 67 FR 60129, Sept. 25, 2002]
Sec. 1952.213 Compliance staffing benchmarks.
Under the terms of the 1978 Court Order in AFL-CIO v. Marshall
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984 Maryland, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised compliance staffing benchmarks
of 36 safety and 18 health compliance officers. After opportunity for
public comment and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements on July 18, 1985.
[50 FR 29219, July 18, 1985]
Sec. 1952.214 Final approval determination.
(a) In accordance with section 18(e) of the Act and procedures in 29
CFR part 1902, and after determination that the State met the ``fully
effective'' compliance staffing benchmarks as revised in 1984 in
response to a Court Order in AFL-CIO v. Marshall (CA 74-406), and was
satisfactorily providing reports to OSHA through participation in the
Federal-State Unified Management Information System, the Assistant
Secretary evaluated actual operations under the Maryland State plan for
a period of at least one year following certification of completion of
developmental steps (45 FR 10335). Based on the 18(e) Evaluation Report
for the period of October 1982 through March 1984, and after opportunity
for public comment, the Assistant Secretary determined that in operation
the State of Maryland's occupational safety and health program is at
least as effective as the Federal program in providing safe and
healthful employment and places of employment and meets the criteria for
final State plan approval in section 18(e) of the Act and implementing
regulations at 29 CFR part 1902. Accordingly, the Maryland plan was
granted final approval and concurrent Federal enforcement authority was
relinquished under section 18(e) of the Act effective July 18, 1985.
(b) Except as otherwise noted, the plan which has received final
approval covers all activities of employers and all places of employment
in Maryland. The plan does not cover private sector maritime employment;
Federal government employers and employees; the U.S. Postal Service
(USPS), including USPS employees, and contract employees and contractor-
operated facilities engaged in USPS mail operations; and employment on
military bases.
(c) Maryland is required to maintain a State program which is at
least as effective as operations under the Federal program; to submit
plan supplements in accordance with 29 CFR part 1953; to allocate
sufficient safety and health enforcement staff to meet the benchmarks
for State staffing established by the U.S. Department of Labor, or any
revisions to those benchmarks; and, to furnish such reports in such form
as the Assistant Secretary may from time to time require.
[50 FR 29220, July 18, 1985, as amended at 65 FR 36623, June 9, 2000]
Sec. 1952.215 Level of Federal enforcement.
(a) As a result of the Assistant Secretary's determination granting
final approval to the Maryland plan under section 18(e) of the Act,
effective July 18, 1985, occupational safety and health standards which
have been promulgated under section 6 of the Act do not apply with
respect to issues covered under the Maryland plan. This determination
also relinquishes concurrent Federal OSHA authority to issue citations
for violations of such standards under sections 5(a)(2) and 9 of the
Act; to conduct inspections and investigations under section 8 (except
those necessary to conduct evaluation of the
[[Page 63]]
plan under section 18(b) and other inspections, investigations, or
proceedings necessary to carry out Federal responsibilities not
specifically preempted by section 18(e)); to conduct enforcement
proceedings in contested cases under section 10; to institute
proceedings to correct imminent dangers under section 13; and to propose
civil penalties or initiate criminal proceedings for violations of the
Federal Act under section 17. The Assistant Secretary retains
jurisdiction under the above provisions in any proceeding commenced
under section 9 or 10 before the effective date of the 18(e)
determination.
(b)(1) In accordance with section 18(e), final approval relinquishes
Federal OSHA authority only with regard to occupational safety and
health issues covered by the Maryland plan. OSHA retains full authority
over issues which are not subject to State enforcement under the plan.
Thus, Federal OSHA retains its authority relative to safety and health
in private sector maritime activities and will continue to enforce all
provisions of the Act, rules or orders, and all Federal standards,
current or future, specifically directed to private sector maritime
employment (29 CFR Part 1915, shipyard employment; Part 1917, marine
terminals; Part 1918, longshoring; Part 1919, gear certification), as
well as provisions of general industry and construction standards (29
CFR Parts 1910 and 1926) appropriate to hazards found in these
employments; and employment on military bases. Federal jurisdiction is
also retained with respect to Federal government employers and
employees; and the U.S. Postal Service (USPS), including USPS employees,
and contract employees and contractor-operated facilities engaged in
USPS mail operations.
(2) In addition, any hazard, industry, geographical area, operation
or facility over which the State is unable to effectively exercise
jurisdiction for reasons not related to the required performance or
structure of the plan shall be deemed to be an issue not covered by the
finally approved plan, and shall be subject to Federal enforcement.
Where enforcement jurisdiction is shared between Federal and State
authorities for a particular area, project, or facility, in the interest
of administrative practicability Federal jurisdiction may be assumed
over the entire project or facility. In either of the two aforementioned
circumstances, Federal enforcement may be exercised immediately upon
agreement between Federal and State OSHA.
(c) Federal authority under provisions of the Act not listed in
section 18(e) is unaffected by final approval of the plan. Thus, for
example, the Assistant Secretary retains his authority under section
11(c) of the Act with regard to complaints alleging discrimination
against employees because of the exercise of any right afforded to the
employee by the Act, although such complaints may be referred to the
State for investigation. The Assistant Secretary also retains his
authority under section 6 of the Act to promulgate, modify or revoke
occupational safety and health standards which address the working
conditions of all employees, including those in States which have
received an affirmative 18(e) determination, although such standards may
not be Federally applied. In the event that the State's 18(e) status is
subsequently withdrawn and Federal authority reinstated, all Federal
standards, including any standards promulgated or modified during the
18(e) period, would be Federally enforceable in that State.
(d) As required by section 18(f) of the Act, OSHA will continue to
monitor the operations of the Maryland State program to assure that the
provisions of the State plan are subtantially complied with and that the
program remains at least as effective as the Federal program. Failure by
the State to comply with its obligations may result in the revocation of
the final determination under section 18(e), resumption of Federal
enforcement, and/or proceedings for withdrawal of plan approval.
[50 FR 29220, July 18, 1985, as amended at 65 FR 36623, June 9, 2000]
Sec. 1952.216 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected
[[Page 64]]
and copied during normal business hours at the following locations:
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue NW, Room N3700,
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, The Curtis Center, 170 South
Independence Mall West--Suite 740 West, Philadelphia, Pennsylvania
19106-3309; and
Office of the Commissioner, Maryland Division of Labor and Industry,
Department of Labor, Licensing and Regulation, 1100 N. Eutaw Street,
Room 613, Baltimore, Maryland 21201-2206.
[65 FR 36623, June 9, 2000]
Sec. 1952.217 Changes to approved plans.
(a) Legislation. (1) On March 29, 1994, the Assistant Secretary
approved Maryland's revised statutory penalty levels which are the same
as the revised Federal penalty levels contained in section 17 of the Act
as amended on November 5, 1990.
(2) [Reserved]
(b) [Reserved]
[59 FR 14556, Mar. 29, 1994]
Subpart P_Tennessee
Sec. 1952.220 Description of the plan as initially approved.
(a) The plan identifies the Department of Labor and the Department
of Health as the agencies designated to administer the plan throughout
the State. It adopts the definition of occupational safety and health
issues expressed in Sec. 1902.2(c)(1) of this chapter. All standards,
except those found in 29 CFR parts 1915, 1916, 1917, and 1918 (ship
repairing, ship building, ship breaking and longshoring) will be adopted
and enforced immediately upon approval of the plan by the Assistant
Secretary.
(b)(1) The plan includes legislation passed by the Tennessee
Legislature during its 1972 session which became effective July 1, 1972.
Under the law, the Department of Labor and the Department of Public
Health will have full authority to enforce and administer laws
respecting safety and health of employees in all workplaces of the State
with the exception of employees of the United States or employees
protected under other Federal occupational safety and health laws such
as the Atomic Energy Act of 1959 (42 U.S.C. 2011 et seq.). The Federal
Coal Mine Safety Act of 1969 (30 U.S.C. 801), the Federal Metal and
Nonmetallic Mine Safety Act (30 U.S.C. 721 et seq.) railroad employees
covered by the Federal Safety Appliances Act (45 U.S.C. 1 et seq.) and
the Federal Railroad Safety Act (45 U.S.C. 421 et seq.), the
Longshoremen's and Harbor Workers' Compensation Act, as amended (33
U.S.C. 901 et seq.), domestic workers, and any employee engaged in
agriculture who is employed on a family farm. The Act further provides
for the protection of employees from hazards, procedures for the
development and promulgation of standards, including standards for
protection of employees against new and unforeseen hazards; procedures
for prompt restraint or elimination of imminent danger situations.
(2) The Act also insures inspections in response to complaints;
employer and employee representatives an opportunity to accompany
inspectors in order to aid inspections; notification of employees or
their representative when no compliance action is taken as a result of
alleged violations, including informal review; notification of employees
of their protections and obligations; adequate safeguards to protect
trade secrets; provisions for prompt notice to employers and employees
of alleged violations of standards and abatement requirements; a system
of sanctions against employers for violations of standards; employer
right of review with employee participation in review proceedings, and
coverage of employees of political subdivisions. Legislation which
became effective on April 5, 1973, providing for ``stop orders'' for
cases of imminent danger situations is also included.
(c)(1) The plan further includes proposed amendments submitted by
the State which will be presented to the 1974 session of the State
legislature to bring its Occupational Safety and Health Act into
conformity with the requirements of 29 CFR part 1902. These amendments
pertain to such areas as permanent variances, employee protection
against discharge or
[[Page 65]]
discrimination in terms and conditions of employment, imminent danger
situations, sanctions, and walkaround. A statement of the Governor's
support for the proposed amandments and a statement of legal opinion
that they will meet the requirements of the Occupational Safety and
Health Act of 1970 and is consistent with the Constitution and laws of
the State are included in the plan.
(2) The plan provides a comprehensive description of personnel
employed under the State's merit system and assurances of sufficient
resources. The plan further sets out goals and provides a timetable to
bring it into full conformity with the requirements of part 1902 of this
chapter.
(d) The Tennessee plan includes the following documents as of the
date of approval:
(1) The plan description documents including the Tennessee
Occupational Safety and Health Act, the proposed amendments to the Act
and appendices in three (3) volumes;
(2) Letter from Ben O. Gibbs, Commissioner of Labor to Henry J.
Baker, Project Officer, Office of State and Federal Operations, February
14, 1973, submitting additions and deletions to the plan.
(3) Letter from Edward C. Nichols, Jr., Staff Attorney for the
Department of Labor, to Henry Baker, May 30, 1973, submitting a ``red
tag'' provision which was signed into law by the Governor of Tennessee
on April 5, 1973.
(4) Letter from Ben O. Gibbs, Commissioner of Labor and Eugene W.
Fowinkle, Commissioner of Public Health, to Thomas C. Brown, Director,
Office of Federal and State Operations, June 15, 1973, submitting
proposed amendments and clarifications to the plan.
(e) The public comments will also be available for inspection and
copying with the plan documents.
[38 FR 17840, July 5, 1973, as amended at 50 FR 29669, July 22, 1985]
Sec. 1952.221 Developmental schedule.
The Tennessee state plan is developmental. The following is the
developmental schedule as provided by the plan:
(a) Formal adoption of Federal standards immediately upon approval
of State plan. (Existing State standards were repealed by the enabling
legislation). Enforcement of standards commences immediately upon
promulgation.
(b) Amendments to legislation to be submitted to 1974 State
legislative session.
(c) Regulations for recordkeeping and reporting will be promulgated
upon plan approval.
(d) Regulations for inspections, citations, and proposed penalties
will be promulgated immediately upon plan approval.
(e) Variances regulations will be promulgated within 60 days of plan
approval.
(f) Manual Management data system operational July 1, 1973.
Automated Management data system operational January 1, 1974.
[38 FR 17840, July 5, 1973. Redesignated at 50 FR 29669, July 22, 1985]
Sec. 1952.222 Completed developmental steps.
(a) In accordance with Sec. 1952.223(b), the Tennessee Occupational
Safety and Health Act of 1972 was amended by Chapter 585, Public Acts of
1974, on March 20, 1974, with an effective date of July 1, 1974 and
approved by the Secretary of Labor in August 15, 1975 (40 FR 36556).
Further State-initiated amendments to the Act transferring all
occupational safety and health responsibility to the Commissioner of
Labor were promulgated effective July 1, 1977, and approved by the
Assistant Secretary on May 3, 1978.
(b) In accordance with Sec. 1952.223(d), regulations governing
inspections, citations, and proposed penalties were originally
promulgated by the Commissioner of Labor on July 2, 1973 (effective July
13, 1973) and approved by the Assistant Secretary on August 15, 1975 (40
FR 36556). These regulations were subsequently codified as Tennessee
Department of Labor Chapter 0800-1-4 and reapproved by the Assistant
Secretary, as amended, on May 3, 1978. The Tennessee Commissioner of
Public Health promulgated parallel regulations on April 3, 1974
(effective May 3, 1974) which were also approved on August 15,
[[Page 66]]
1975. These Department of Public Health regulations became inoperative
on July 1, 1977.
(c) In accordance with Sec. 1952.223(e), regulations governing
temporary variances were promulgated by the Commissioner of Labor on
July 2, 1973 (effective July 13, 1973) and approved by the Assistant
Secretary on August 15, 1975, (40 FR 36566). These regulations, which
were subsequently codified as Tennessee Department of Labor Chapter
0800-1-2, were expanded to include permanent variances, and amended in
response to Federal comment, and reapproved by the Assistant Secretary
on May 3, 1978. The Commissioner of Public Health promulgated
regulations dealing with temporary variances on April 3, 1974,
(effective May 3, 1974) which were also approved by the Secretary on
August 15, 1975. These Department of Public Health regulations became
inoperative on July 1, 1977.
(d) In accordance with the requirements of 29 CFR 1952.10, the
Tennessee occupational safety and health poster for private employers
and local government employers choosing to be treated as private
employers was approved by the Assistant Secretary on August 15, 1975. In
addition, a Tennessee occupational safety and health poster for public
employees was approved by the Assistant Secretary on May 3, 1978.
(e) In accordance with Sec. 1952.223(a) the Tennessee occupational
safety and health standards identical to Federal standards (through
December 26, 1974) have been promulgated and approved, as revised, by
the Assistant Regional Director on March 31, 1975 (40 FR 14383).
(f) In accordance with Sec. 1952.223(f) Tennessee implemented a
manual management information system in July 1973, and converted to an
automated system in July 1975.
(g) In accordance with plan commitments, regulations governing
Occupational Safety and Health Recordkeeping and Reporting (Chapter
0800-1-3) were promulgated by the Tennessee Department of Labor on June
10, 1974, and subsequently amended on April 15, 1976, July 14, 1977,
August 15, 1977 and February 13, 1978. These regulations, which contain
requirements essentially identical to the Federal 29 CFR part 1904, were
approved by the Assistant Secretary on May 3, 1978.
(h) In accordance with plan commitments, the Tennessee Occupational
Safety and Health Review Commission promulgated regulations governing
its operation on May 5, 1974 (Chapters 1030-1 through 1030-7). These
regulations were subsequently amended in response to Federal comment on
February 13, 1978, and approved by the Assistant Secretary on May 3,
1978.
(i) In accordance with plan commitments, Tennessee revised its
original Compliance Operations Manual on May 19, 1975. The manual which
was subsequently amended in response to Federal comment and to reflect
all Federal procedures in effect as of December 1, 1976, was approved by
the Assistant Secretary on May 3, 1978.
(j) In accordance with State plan commitments, a Tennessee Public
Employee plan and implementing regulations (Tennessee Department of
Labor Chapter 0800-1-5) have been adopted and were approved by the
Assistant Secretary on May 3, 1978.
(k) In accordance with Sec. 1902.34 of this chapter, the Tennessee
occupational safety and health plan received certification, effective
May 3, 1978, as having completed all developmental steps specified in
its plan as approved on June 28, 1973, on or before July 1, 1976.
[40 FR 36567, Aug. 21, 1975, as amended at 42 FR 58747, Nov. 11, 1977;
43 FR 20982-20986, May 16, 1978. Redesignated at 50 FR 29669, July 22,
1985]
Sec. 1952.223 Compliance staffing benchmarks.
Under the terms of the 1978 Court Order in AFL-CIO v. Marshall
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984 Tennessee, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised compliance staffing benchmarks
of 22 safety and 14 health compliance officers. After opportunity for
public comment and service on the
[[Page 67]]
AFL-CIO, the Assistant Secretary approved these revised staffing
requirements on July 22, 1985.
[50 FR 29669, July 22, 1985]
Sec. 1952.224 Final approval determination.
(a) In accordance with section 18(e) of the Act and procedures in 29
CFR part 1902, and after determination that the State met the ``fully
effective'' compliance staffing benchmarks as revised in 1984 in
response to a Court Order in AFL-CIO v. Marshall (CA 74-406), and was
satisfactorily providing reports to OSHA through participation in the
Federal-State Unified Management Information System, the Assistant
Secretary evaluated actual operations under the Tennessee State plan for
a period of at least one year following certification of completion of
developmental steps (43 FR 20980). Based on the 18(e) Evaluation Report
for the period of October 1982 through March 1984, and after opportunity
for public comment, the Assistant Secretary determined that in operation
the State of Tennessee's occupational safety health program is at least
as effective as the Federal program in providing safe and healthful
employment and places of employment and meets the criteria for final
State plan approval in section 18(e) of the Act and implementing
regulations at 29 CFR part 1902. Accordingly, the Tennessee plan was
granted final approval and concurrent Federal enforcement authority was
relinquished under section 18(e) of the Act effective July 22, 1985.
(b) Except as otherwise noted, the plan which has received final
approval covers all activities of employers and all places of employment
in Tennessee. The plan does not cover private sector maritime
employment; Federal government employers and employees; the U.S. Postal
Service (USPS), including USPS employees, and contract employees and
contractor-operated facilities engaged in USPS mail operations; railroad
employment; employment at Tennessee Valley Authority facilities and on
military bases, as well as any other properties ceded to the United
States Government.
(c) Tennessee is required to maintain a State program which is at
least as effective as operations under the Federal program; to submit
plan supplements in accordance with 29 CFR part 1953; to allocate
sufficient safety and health enforcement staff to meet the benchmarks
for State staffing established by the U.S. Department of Labor, or any
revisions to those benchmarks; and, to furnish such reports in such form
as the Assistant Secretary may from time to time require.
[50 FR 29669, July 22, 1985, as amended at 65 FR 36624, June 9, 2000]
Sec. 1952.225 Level of Federal enforcement.
(a) As a result of the Assistant Secretary's determination granting
final approval to the Tennessee plan under section 18(e) of the Act,
effective July 22, 1985, occupational safety and health standards which
have been promulgated under section 6 of the Act do not apply with
respect to issues covered under the Tennessee plan. This determination
also relinquishes concurrent Federal OSHA authority to issue citations
for violations of such standards under sections 5(a)(2) and 9 of the
Act; to conduct inspections and investigations under section 8 (except
those necessary to conduct evaluation of the plan under section 18(b)
and other inspections, investigations, or proceedings necessary to carry
out Federal responsibilities not specifically preempted by section
18(e)); to conduct enforcement proceedings in contested cases under
section 10; to institute proceedings to correct imminent dangers under
section 13; and to propose civil penalties or initiate criminal
proceedings for violations of the Federal Act under section 17. The
Assistant Secretary retains jurisdiction under the above provisions in
any proceeding commenced under section 9 or 10 before the effective date
of the 18(e) determination.
(b)(1) In accordance with section 18(e), final approval relinquishes
Federal OSHA authority only with regard to occupational safety and
health issues covered by the Tennessee plan. OSHA retains full authority
over issues which are not subject to State enforcement under the plan.
Thus, Federal OSHA retains its authority relative to safety and health
in private sector
[[Page 68]]
maritime activities and will continue to enforce all provisions of the
Act, rules or orders, and all Federal standards, current or future,
specifically directed to maritime employment (29 CFR Part 1915, shipyard
employment; Part 1917, marine terminals; Part 1918, longshoring; Part
1919, gear certification) as well as provisions of general industry and
construction standards (29 CFR Parts 1910 and 1926) appropriate to
hazards found in these employments; railroad employment, not otherwise
regulated by another Federal agency; employment at Tennessee Valley
Authority facilities and on military bases. Federal jurisdiction is also
retained with respect to Federal government employers and employees, and
the U.S. Postal Service (USPS), including USPS employees, and contract
employees and contractor-operated facilities engaged in USPS mail
operations.
(2) In addition, any hazard, industry, geographical area, operation
or facility over which the State is unable to effectively exercise
jurisdiction for reasons not related to the required performance or
structure of the plan shall be deemed to be an issue not covered by the
finally approved plan, and shall be subject to federal enforcement.
Where enforcement jurisdiction is shared between Federal and State
authorities for a particular area, project, or facility, in the interest
of administrative practicability Federal jurisdiction may be assumed
over the entire project or facility. In either of the two aforementioned
circumstances, Federal enforcement may be exercised immediately upon
agreement between Federal and State OSHA.
(c) Federal authority under provisions of the Act not listed in
section 18(e) is unaffected by final approval of the plan. Thus, for
example, the Assistant Secretary retains his authority under section
11(c) of the Act with regard to complaints alleging discrimination
against employees because of the exercise of any right afforded to the
employee by the Act, although such complaints may be referred to the
State for investigation. The Assistant Secretary also retains his
authority under section 6 of the Act to promulgate, modify or revoke
occupational safety and health standards which address the working
conditions of all employees, including those in States which have
received an affirmative 18(e) determination, although such standards may
not be federally applied. In the event that the State's 18(e) status is
subsequently withdrawn and Federal authority reinstated, all Federal
standards, including any standards promulgated or modified during the
18(e) period, would be federally enforceable in that State.
(d) As required by section 18(f) of the Act, OSHA will continue to
monitor the operations of the Tennessee State program to assure that the
provisions of the State plan are substantially complied with and that
the program remains at least as effective as the Federal program.
Failure by the State to comply with its obligations may result in the
revocation of the final determination under section 18(e), resumption of
Federal enforcement, and/or proceedings for withdrawal of plan approval.
[50 FR 29670, July 22, 1985, as amended at 65 FR 36624, June 9, 2000]
Sec. 1952.226 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations:
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue NW, Room N3700,
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, Atlanta Federal Center, 61
Forsyth Street, SW, Room 6T50, Atlanta, Georgia 30303; and
Office of the Commissioner, Tennessee Department of Labor, 710 James
Robertson Parkway, Nashville, Tennessee 37243-0659.
[65 FR 36624, June 9, 2000]
Sec. 1952.227 Changes to approved plans.
(a) Legislation. (1) On March 29, 1994, the Assistant Secretary
approved Tennessee's revised statutory penalty levels which are the same
as the revised Federal penalty levels contained in section 17 of the Act
as amended on November 5, 1990.
(2) [Reserved]
[[Page 69]]
(b) The Voluntary Protection Program. On October 24, 1996, the
Assistant Secretary approved Tennessee's plan supplement, which is
generally identical to the Federal Voluntary Protection Program, with
the exception that the State's VPP is limited to the ``Star'' level
participation for general industry firms.
[59 FR 14556, Mar. 29, 1994, as amended at 61 FR 55099, Oct. 24, 1996]
Subpart Q_Kentucky
Source: 50 FR 24896, June 13, 1985, unless otherwise noted.
Sec. 1952.230 Description of the plan as initially approved.
(a) The plan designates the Department of Labor as the agency
responsible for administering the Plan throughout the State. It proposes
to define the occupational safety and health issue covered by it as
defined by the Secretary of Labor in Sec. 1902.2(c)(1) of this chapter.
All occupational safety and health standards promulgated by the United
States Secretary of Labor have been adopted under the Plan as well as a
certain standard deemed to be ``as effective as'' the Federal standard,
except those found in parts 1915, 1916, 1917 and 1918 of this chapter
(ship repairing, ship building, ship breaking and longshoring). All
Federal standards adopted by the State became effective on December 29,
1972.
(b) Within the plan there is enabling legislation revising chapter
338 of the Kentucky Revised Statutes which became law on March 27, 1972;
as well as legislation enacted and approved in a Special Session of the
Legislature in 1972 amending the enabling legislation. The law as
enacted and modified gives the Department of Labor, Division of
Occupational Safety and Health, the statutory authority to implement an
occupational safety and health plan modeled after the Federal Act. There
are provisions within it granting the Commissioner of Labor the
authority to inspect workplaces and to issue citations for the abatement
of violations and there is also included a prohibition against advance
notice of such inspections. The law is also intended to insure employer
and employee representatives an opportunity to accompany inspectors and
to call attention to possible violations; notification of employees or
their representatives when no compliance action is taken as a result of
employee alleged violations; protection of employees against
discrimination in terms and conditions of employment; and adequate
safeguards to protect trade secrets. There is provision made for the
prompt restraint of imminent danger situations and a system of penalties
for violation of the statute. There are also provisions creating the
Kentucky Occupational Safety and Health Standards Board and the Kentucky
Occupational Safety and Health Review Board. The Law has further
provision that the Department of Labor will enter into an agreement with
the Public Service Commission (PSC) which shall serve as the State
agency in the administration of all matters relating to occupational
safety and health with respect to employees of public utilities.
(c) The plan includes an opinion from the Attorney General that the
Law is consistent with the Constitution of the State. There is also set
forth in the Plan a Time Schedule for the Development of a Public
Employee Program. The Plan also contains a comprehensive description of
personnel employed under the State's merit system as well as its
proposed budget and resources.
(d) The Kentucky plan includes the following documents as of the
date of approval:
(1) The plan description documents, including the Kentucky
Occupational Safety and Health Act, and appendices in three (3) volumes;
(2) Letter for James R. Yocum, Commissioner of the Kentucky
Department of Labor, to Basil A. Needham, Jr., Regional Administrator,
Atlanta, Georgia Office, Occupational Safety and Health Administration,
June 14, 1973, submitting additions and clarifications to the plan.
(3) Letter from James R. Yocum to the Assistant Secretary of Labor,
John H. Stender, July 13, 1973, submitting assurances that the State
will submit certain amendments to the 1974 Session of its Legislature.
[[Page 70]]
(e) The public comments will also be available for inspection and
copying with the plan documents.
[38 FR 20324, July 31, 1973, as amended at 50 FR 24896, June 13, 1985]
Sec. 1952.231 Developmental schedule.
The Kentucky state plan is developmental. The following is the
developmental schedule as provided by the plan:
(a) A comprehensive public employee program will be developed within
three years of plan approval.
(b) Within six months after plan approval, the procedure for the
promulgation of standards will be revised.
(c) An affirmative action program will be submitted to the Assistant
Secretary as well as clearance of possible inconsistencies of the State
Merit System by the Civil Service Commission within six months after
grant approval.
(d) Revision of various regulations, including those pertaining to
employee access to information on their exposure to toxic materials or
harmful physical agents and contests before the Review Commission will
be undertaken within six months after plan approval.
(e) Submission of amendments to KRS chapter 338 in 1974 General
Assembly, to provide temporary variance authority and incorporate in
that chapter penalties for willful violations causing death.
[38 FR 20324, July 31, 1973. Redesignated at 50 FR 24896, June 13, 1985]
Sec. 1952.232 Completion of developmental steps and certification.
(a) In accordance with the requirements of Sec. 1952.10 the
Kentucky Safety and Health Poster for private and public employees was
approved by the Assistant Secretary on May 20, 1976.
(b) Amendments in the Kentucky enabling legislation were enacted to
include (1) a division of occupational safety and health compliance and
a division of education and training (KRS 333.153(a)) and (2) authority
and procedures for granting temporary var i anc es. Penalties for
willful violations causing death of an employee are covered under KRS
chapters 434, 503 and 534.
(c) An amended Kentucky Administrative Procedure Act (KRS chapter
13) provides procedures for promulgation of standards and administrative
regulations including emergency temporary standards.
(d) Kentucky regulations governing recordkeeping and reporting
(parallel to the Federal 29 CFR part 1904), inspections, citations,
proposed penalties (parallel to the Federal 29 CFR part 1903) and
variances (parallel to the Federal 29 CFR part 1905) were initially
approved with the State plan on July 31, 1973. These regulations were
expanded to provide for:
(1) Penalties for failure to correct violations;
(2) Mandatory penalties for failure to post a citation;
(3) Procedures for petition for modification of abatement dates and
(4) Procedures for granting temporary var i anc es.
In addition, Kentucky adopted regulations pertaining to employee access
to information on exposure to toxic materials or harmful physical
agents.
(e) A manual Management Information System was implemented in July,
1975, and converted to an automated system in July, 1977.
(f) The personnel operations of the Kentucky Department of Labor and
the servicing merit system agency have been found to be in substantial
conformity with the ``Standards for a Merit System of Personnel
Administration'' by letter of the Secretary of Labor dated May 17, 1977.
In addition, a Kentucky Department of Labor affirmative action plan to
promote equal employment opportunity has been judged acceptable by the
Regional Office of Personnel Management by letter dated February 12,
1979.
(g) Kentucky revised regulations governing the operation of the
Kentucky Occupational Safety and Health Review Commission were
promulgated in December, 1975.
(h) A revised Kentucky Compliance Manual was initially submitted in
July, 1976, and subsequently amended in response to Federal comment to
reflect changes in Federal procedures through December 20, 1976.
(i) By executive orders 74-374 and 77-573 dated May 15, 1974, and
June 30,
[[Page 71]]
1977, respectively, the Governor of Kentucky made the following changes
in the organization of the Kentucky Occupational Safety and Health
Program:
(1) All occupational health functions except laboratory services
were transferred from Kentucky Department of Human Resources to the
Kentucky Department of Labor.
(2) Responsibilities for coverage of employees of public utilities
were transferred from the Kentucky Public Service Commission to the
Kentucky Department of Labor.
(j) A Kentucky Public Employee plan has been adopted by the State.
(k) In accordance with Sec. 1902.34 of this chapter, the Kentucky
occupational safety and health plan received certification, effective
February 8, 1980, as having completed all developmental steps specified
in its plan as approved on July 31, 1973, on or before July 31, 1976.
This certification attests to structural completion, but does not render
judgment on adequacy of performance.
[41 FR 21774, May 28, 1976, as amended at 41 FR 34252, Aug. 13, 1976; 45
FR 8596, 8598, Feb. 8, 1980. Redesignated at 50 FR 24896, June 13, 1985]
Sec. 1952.233 Compliance staffing benchmarks.
Under the terms of the 1978 Court Order in AFL-CIO v. Marshall
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984 Kentucky, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised compliance staffing benchmarks
of 23 safety and 14 health compliance officers. After opportunity for
public comment and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements on June 13, 1985.
Sec. 1952.234 Final approval determination.
(a) In accordance with section 18(e) of the Act and procedures in 29
CFR part 1902, and after determination that the State met the ``fully
effective'' compliance staffing benchmarks as revised in 1984 in
response to a Court Order in AFL-CIO v. Marshall (CA 74-406), and was
satisfactorily providing reports to OSHA through participation in the
Federal-State Unified Management Information System, the Assistant
Secretary evaluated actual operations under the Kentucky State plan for
a period of at least one year following certification of completion of
developmental steps (45 FR 8596). Based on the 18(e) Effectiveness
Report for the period of October 1982 through March 1984, and after
opportunity for public comment, the Assistant Secretary determined that
in operation the State of Kentucky's occupational safety health program
is at least as effective as the Federal program in providing safe and
healthful employment and places of employment and meets the criteria for
final State plan approval in section 18(e) of the Act and implementing
regulations at 29 CFR part 1902. Accordingly, the Kentucky plan was
granted final approval and concurrent Federal enforcement authority was
relinquished under section 18(e) of the Act effective June 13, 1985.
(b) Except as otherwise noted, the plan which has received final
approval covers all activities of employers and all places of employment
in Kentucky. The plan does not cover private sector maritime employment;
employment at Tennessee Valley Authority facilities; military bases;
properties ceded to the U.S. Government; Federal government employers
and employees; the U.S. Postal Service (USPS), including USPS employees,
and contract employees and contractor-operated facilities engaged in
USPS mail operations; the enforcement of the field sanitation standard,
29 CFR 1928.110, and the enforcement of the temporary labor camps
standard, 29 CFR 1910.142, with respect to any agricultural
establishment where employees are engaged in ``agricultural employment''
within the meaning of the Migrant and Seasonal Agricultural Worker
Protection Act, 29 U.S.C. 1802(3), regardless of the number of
employees, including employees engaged in hand packing of produce into
containers, whether done on the ground, on a moving machine, or in a
temporary packing shed, except that Kentucky retains enforcement
responsibility over agricultural temporary
[[Page 72]]
labor camps for employees engaged in egg, poultry, or red meat
production, or the post-harvest processing of agricultural or
horticultural commodities.
(c) Kentucky is required to maintain a State program which is at
least as effective as operations under the Federal program; to submit
plan supplements in accordance with 29 CFR part 1953; to allocate
sufficient safety and health enforcement staff to meet the benchmarks
for State staffing established by the U.S. Department of Labor, or any
revisions to those benchmarks; and, to furnish such reports in such form
as the Assistant Secretary may from time to time require.
[50 FR 24896, June 13, 1985, as amended at 62 FR 2562, Jan. 17, 1997; 65
FR 36624, June 9, 2000]
Sec. 1952.235 Level of Federal enforcement.
(a) As a result of the Assistant Secretary's determination granting
final approval to the Kentucky plan under section 18(e) of the Act,
effective June 13, 1985, occupational safety and health standards which
have been promulgated under section 6 of the Act do not apply with
respect to issues covered under the Kentucky plan. This determination
also relinquishes concurrent Federal OSHA authority to issue citations
for violations of such standards under sections 5(a)(2) and 9 of the
Act; to conduct inspections and investigations under section 8 (except
those necessary to conduct evaluation of the plan under section 18(b)
and other inspections, investigations, or proceedings necessary to carry
out Federal responsibilities not specifically preempted by section
18(e)); to conduct enforcement proceedings in contested cases under
section 10; to institute proceedings to correct imminent dangers under
section 13; and to propose civil penalties or initiate criminal
proceedings for violations of the Federal Act under section 17. The
Assistant Secretary retains jurisdiction under the above provisions in
any proceeding commenced under section 9 or 10 before the effective date
of the 18(e) determination.
(b)(1) In accordance with section 18(e), final approval relinquishes
Federal OSHA authority only with regard to occupational safety and
health issues covered by the Kentucky plan. OSHA retains full authority
over issues which are not subject to State enforcement under the plan.
Thus, Federal OSHA retains its authority relative to safety and health
in private sector maritime activities and will continue to enforce all
provisions of the Act, rules or orders, and all Federal standards,
current or future, specifically directed to maritime employment (29 CFR
Part 1915, shipyard employment; Part 1917, marine terminals; Part 1918,
longshoring; Part 1919, gear certification) as well as provisions of
general industry and construction standards (29 CFR Parts 1910 and 1926)
appropriate to hazards found in these employments; employment at
Tennessee Valley Authority facilities and on all military bases, as well
as any other properties ceded to the U.S. Government. Federal
jurisdiction is retained and exercised by the Employment Standards
Administration, U.S. Department of Labor, (Secretary's Order 5-96, dated
December 27, 1996) with respect to the field sanitation standard, 29 CFR
1928.110, and the enforcement of the temporary labor camps standard, 29
CFR 1910.142, in agriculture, as described in Sec. 1952.234(b). Federal
jurisdiction is also retained with respect to Federal government
employers and employees; and the U.S. Postal Service (USPS), including
USPS employees, and contract employees and contractor-operated
facilities engaged in USPS mail operations.
(2) In addition, any hazard, industry, geographical area, operation
or facility over which the State is unable to effectively exercise
jurisdiction for reasons not related to the required performance or
structure of the plan shall be deemed to be an issue not covered by the
finally approved plan, and shall be subject to Federal enforcement.
Where enforcement jurisdiction is shared between Federal and State
authorities for a particular area, project, or facility, in the interest
of administrative practicability, Federal jurisdiction may be assumed
over the entire project or facility. In either of the two aforementioned
circumstances, Federal enforcement may be exercised immediately upon
agreement between Federal and State OSHA.
[[Page 73]]
(c) Federal authority under provisions of the Act not listed in
section 18(e) is unaffected by final approval of the plan. Thus, for
example, the Assistant Secretary retains his authority under section
11(c) of the Act with regard to complaints alleging discrimination
against employees because of the exercise of any right afforded to the
employee by the Act, although such complaints may be referred to the
State for investigation. The Assistant Secretary also retains his
authority under section 6 of the Act to promulgate, modify or revoke
occupational safety and health standards which address the working
conditions of all employees, including those in States which have
received an affirmative 18(e) determination, although such standards may
not be Federally applied. In the event that the State's 18(e) status is
subsequently withdrawn and Federal authority reinstated, all Federal
standards, including any standards promulgated or modified during the
18(e) period, would be Federally enforceable in that State.
(d) As required by section 18(f) of the Act, OSHA will continue to
monitor the operations of the Kentucky State program to assure that the
provisions of the State plan are substantially complied with and that
the program remains at least as effective as the Federal program.
Failure by the State to comply with its obligations may result in the
revocation of the final determination under section 18(e), resumption of
Federal enforcement, and/or proceedings for withdrawal of plan approval.
[50 FR 24896, June 13, 1985, as amended at 62 FR 2562, Jan. 17, 1997; 65
FR 36624, June 9, 2000]
Sec. 1952.236 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations:
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue NW, Room N3700,
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, Atlanta Federal Center, 61
Forsyth Street, SW., Room 6T50, Atlanta, Georgia 30303; and
Office of the Secretary, Kentucky Labor Cabinet, 1047 U.S. Highway 127
South, Suite 4, Frankfort, Kentucky 40601.
[65 FR 36625, June 9, 2000]
Sec. 1952.237 Changes to approved plans.
(a) Legislation. (1) On March 29, 1994, the Assistant Secretary
approved Kentucky's revised statutory penalty levels which are the same
as the revised Federal penalty levels contained in section 17 of the Act
as amended on November 5, 1990.
(2) [Reserved]
(b) The Voluntary Protection Program. On October 24, 1996, the
Assistant Secretary approved Kentucky's plan supplement, which is
generally identical to the Federal Voluntary Protection Program, with
the exception that the State's VPP is limited to the ``Star'' level
participation for general industry firms.
(c) Temporary labor camps/field sanitation. Effective February 3,
1997, the Assistant Secretary approved Kentucky's plan amendment, dated
July 29, 1996, relinquishing coverage for the issues of field sanitation
(29 CFR 1928.110) and temporary labor camps (29 CFR 1910.142) in
agriculture (except for agricultural temporary labor camps associated
with egg, poultry or red meat production, or the post-harvest processing
of agricultural or horticultural commodities.) The Employment Standards
Administration, U.S. Department of Labor, has assumed responsibility for
enforcement of these Federal OSHA standards in agriculture in Kentucky
pursuant to Secretary of Labor's Order 5-96, dated December 27, 1996.
[59 FR 14556, Mar. 29, 1994, as amended at 61 FR 55099, Oct. 24, 1996;
62 FR 2563, Jan. 17, 1997]
Subpart R_Alaska
Sec. 1952.240 Description of the plan as initially approved.
(a) The Department of Labor is the State agency designated by the
Governor to administer the plan throughout the State. The plan defines
the covered occupational safety and health issues as defined by the
Secretary of
[[Page 74]]
Labor in Sec. 1902.2(c)(1) of this chapter under four major codes for
general safety, industrial housing, electrical hazards, and occupational
health and environmental controls. The plan also includes vertical
special industry codes for construction, wood products, petroleum, and
fishing. Appendix G of the plan contains a time-table for adoption of
the standards beginning with the effective date of the grant approved
under section 23(g) of the Act. The timetable requires from 6 to 36
months for completion of the standard-setting process with most of the
standards to be adopted within 6 months of the effective date of the
grant.
(b)(1) The plan included draft legislation which has been passed by
the State legislature and signed by the Governor amending chapter 18 of
the Alaska Statutes. Under the legislation, effective July 24, 1973, the
Department of Labor has full authority to enforce and administer laws
respecting safety and health of employees in all workplaces of the
State, including coverage of public employees, with the exceptions of
maritime workers in the area of exclusive Federal jurisdiction;
employees of the United States; employees protected by State agencies
under the Atomic Energy Act of 1954, (42 U.S.C. 2021); and employees
whose working conditions are regulated by Federal agencies other than
the U.S. Department of Labor under the provisions of section 4(b)(1) of
the Occupational Safety and Health Act of 1970. (84 Stat. 1592, 29
U.S.C. 653(b)(1)).
(2) The legislation brings the plan into conformity with the
requirements of part 1902 of this chapter in areas such as procedures
for granting or denying permanent and temporary variances to standards
by the Commissioner; protection of employees from hazards; promulgation
of standards by the Commissioner prescribing requirements ``at least as
effective'' as the requirements for Federal Standards including medical
examinations and monitoring and measuring of hazards; imminent danger
abatement by administrative order and court injunction; protection of
employees against discharge or discrimination in terms or conditions of
employment by filing complaints with the Commissioner who will seek
court action through the State Attorney General; and adequate safeguards
to protect trade secrets.
(3) The legislation provides for inspections, including inspections
in response to complaints; gives employers and employee representatives
an opportunity to accompany inspectors in order to aid inspections and
provides for payment to employees for time spent in aiding an
inspection; notification of employees or their representatives when no
compliance action is taken as a result of an alleged violation,
including informal review; notification of employees of their
protections and obligations through legislative requirements on posting;
provision for prompt notice to employers and employees of alleged
violations of standards, and abatement requirements, through the
issuance and posting of citations; a system of sanctions against
employers for violations of standards; employer right of review to the
Occupational Safety and Health Review Board; and employee participation
in the review procedure with compensation for time spent by the
employee.
(c) Included in the plan is a statement of legal opinion that the
law, which was supported by the Governor in accordance with the
requirements of part 1902 of this chapter, is consistent with the
Constitution and laws of Alaska. The plan sets out goals and provides a
timetable for bringing it into full conformity with part 1902 of this
chapter at the end of three years after commencement of operations under
the plan. Personnel will be employed under the existing State merit
system and the voluntary compliance program for on-site consultation
meets the conditions set forth in the Washington decision (38 FR 2421).
The plan also includes the State Administrative Procedure Act which
authorizes the Commissioner to promulgate emergency temporary standards
and issue rules and regulations necessary for the implementation of the
safety and health law.
(d) The plan includes the following documents as of the date of
approval:
(1) The plan document and appendices A through V.
[[Page 75]]
(2) Alaska legislation as enacted amending chapter 18 of the Alaska
Statutes.
(3) Letters from the Commissioner of Labor dated May 25, 1973, June
15, 1973, and July 10, 1973.
[38 FR 21630, Aug. 10, 1973, as amended at 49 FR 38261, Sept. 28, 1984]
Sec. 1952.241 Developmental schedule.
The Alaska plan is developmental. The Schedule of developmental
steps (described in the plan as revised in letters dated September 17,
1975, February 10, 1976, and April 15, 1976, from Edmond N. Orbeck,
Commissioner, Alaska Department of Labor, to James Lake, Regional
Administrator for Occupational Safety and Health) follows:
(a) Promulgation of occupational safety and health standards, as
effective as corresponding Federal standards promulgated under chapter
XVII of title 29, Code of Federal Regulations by September 1976.
(b) A Compliance Operations Manual for the guidance of compliance
personnel will be developed and printed by February 1, 1974.
(c) A Management Information System (MIS) will be developed by
October 1, 1974.
(d) An interim training schedule (appendix M) will be initiated by
April 1, 1974. An extended training plan of substantially permanent form
will be developed and adopted by October 1, 1976.
(e) Complete hiring of industrial health staff by October 1, 1976.
(f) Provide for an Industrial Health laboratory capacity by October
1, 1976.
(g) Adoption of the following regulations by January 30, 1975:
(1) Recordkeeping and Reporting;
(2) Variances;
(3) Exceptions to the prohibitions against advance notice (such
exceptions to be no broader than those contained in 29 CFR part 1903);
(4) Clarification of the appropriate parties for employers to notify
in order to file a notice of contest;
(5) A definition of imminent danger that mirrors the Federal
definition;
(6) A regulation to allow affected employees to participate as
parties in hearings.
[41 FR 56315, Dec. 28, 1976. Redesignated at 49 FR 38261, Sept. 28,
1984]
Sec. 1952.242 Completed developmental steps.
(a) In accordance with Sec. 1952.243(d) Alaska completed its
interim training program by April 1, 1974, and has developed and adopted
an extended training program by October 1, 1976 (41 FR 36206).
(b) In accordance with Sec. 1952.243(c) Alaska has developed and
implemented a manual Management Information System by October 1, 1974
(41 FR 36206).
(c) In accordance with the requirements of Sec. 1952.10 the Alaska
Safety and Health Poster for private and public employees was approved
by the Assistant Secretary on September 28, 1976 (41 FR 43405).
(d) In accordance with Sec. 1952.243(e) Alaska has completed hiring
of its industrial health staff by October 1, 1976 (41 FR 52556).
(e) In accordance with Sec. 1952.243(f) Alaska has provided for an
Industrial Health Laboratory capacity by October 1, 1976 (41 FR 36206).
(f) In accordance with Sec. 1952.243(g) Alaska has adopted
regulations covering inspections, citations, and proposed penalties,
Alaska Occupational Safety and Health Review Board procedures; recording
and reporting occupational injuries and illnesses; variances; and
consulting and training which were approved by the Assistant Secretary
on August 2, 1977.
(g) In accordance with Sec. 1952.243(b) Alaska has developed a
Compliance Manual which is modeled after the Federal Field Operations
Manual and was approved by the Assistant Secretary on August 2, 1977.
(h) In accordance with Sec. 1902.34 of this chapter, the Alaska
occupational safety and health plan was certified, effective September
9, 1977, as having completed on or before October 1, 1976, all
developmental steps specified in the plan as approved on July 31, 1973.
[41 FR 56315, Dec. 28, 1976, as amended at 42 FR 40196, Aug, 9, 1977; 42
FR 45907, Sept 13, 1977. Redesignated at 49 FR 38261, Sept. 28, 1984]
Sec. 1952.243 Final approval determination.
(a) In accordance with section 18(e) of the Act and procedures in 29
CFR part 1902, and after a determination that
[[Page 76]]
the State met the ``fully effective'' compliance staffing benchmarks as
established in 1980 in response to a Court Order in AFL-CIO v. Marshall,
(CA 74-406), and was satisfactorily providing reports to OSHA through
participation in the Federal-State Unified Management Information,
System, the Assistant Secretary evaluated actual operations under the
Alaska State plan for a period of at least one year following
certification of completion of developmental steps (Sept. 9, 1977, 42 FR
54905). Based on the Evaluation Report for FY 1983 and available FY 1984
data, and after opportunity for public comment and an informal public
hearing held on June 7, 1984 in Anchorage, Alaska, the Assistant
Secretary determined that in actual operations, the State of Alaska
occupational safety and health program is at least as effective as the
Federal program in providing safe and healthful employment and places of
employment and meets the criteria for final States plan approval in
section 18(e) of the Act and implementing regulations at 29 CFR part
1902. Accordingly, the Alaska plan was granted final approval and
concurrent Federal enforcement authority was relinquised under section
18(e) of the Act effective September 26, 1984.
(b) Except as otherwise noted, the plan which has received final
approval covers all activities of employers and all places of employment
in Alaska. The plan does not cover:
(1) Private sector maritime employment;
(2) Worksites located on the navigable waters, including artificial
islands;
(3) Native health care facilities that are Federally owned and
contractor operated, including those owned by the U.S. Department of the
Interior--Indian Health Service, the U.S. Department of Defense, or the
U.S. Department of Commerce--National Oceanic and Atmospheric
Administration, and operated by Tribal organizations under contract with
the Indian Health Service;
(4) Operations of private sector employers within the Metlakatla
Indian Community on the Annette Islands;
(5) Operations of private sector employers within Denali (Mount
McKinley) National Park;
(6) Operations of private contractors at Cape Lisburne Long Range
Missile Base, Point Lay Short Range Missile Base, Eareckson Air Station
on Shemya Island, Fort Greeley Missile Defense in Delta Junction, the
U.S. Coast Guard Integrated Support Commands in Kodiak and Ketchikan,
the U.S. Coast Guard Air Station in Sitka, and the U.S. Coast Guard 17th
District Command in Juneau;
(7) Federal government employers and employees;
(8) The U.S. Postal Service (USPS), including USPS employees, and
contract employees and contractor-operated facilities engaged in USPS
mail operations; or
(9) The enforcement of the field sanitation standard, 29 CFR
1928.110, and the enforcement of the temporary labor camps standard, 29
CFR 1910.142, with respect to any agricultural establishment where
employees are engaged in ``agricultural employment'' within the meaning
of the Migrant and Seasonal Agricultural Worker Protection Act, 29
U.S.C. 1802(3), regardless of the number of employees, including
employees engaged in hand packing of produce into containers, whether
done on the ground, on a moving machine, or in a temporary packing shed,
except that Alaska retains enforcement responsibility over agricultural
temporary labor camps for employees engaged in egg, poultry, or red meat
production, or the post-harvest processing of agricultural or
horticultural commodities.
(c) Alaska is required: To maintain a State program which is at
least as effective as operations under the Federal program; to submit
plan supplements in accordance with 29 CFR part 1953; to allocate
sufficient safety and health enforcement staff to meet the benchmarks
for State staffing established by the U.S. Department of Labor, or any
revisions to those benchmarks; and, to furnish such reports in such form
as
[[Page 77]]
the Assistant Secretary may from time to time require.
[49 FR 38261, Sept. 28, 1984, as amended at 54 FR 115, Jan. 4, 1989; 62
FR 2563, Jan. 17, 1997; 65 FR 36625, June 9, 2000; 69 FR 20827, Apr. 19,
2004]
Sec. 1952.244 Level of Federal enforcement.
(a) As a result of the Assistant Secretary's determination granting
final approval to the Alaska plan under section 18(e) of the Act,
effective September 26, 1984, occupational safety and health standards
which have been promulgated under section 6 of the Act do not apply with
respect to issues covered under the Alaska plan. This determination also
relinquishes concurrent Federal OSHA authority to issue citations for
violation of such standards under sections 5(a)(2) and 9 of the Act; to
conduct inspections and investigations under section 8 (except those
necessary to conduct evaluation of the plan under section 18(b) and
other inspections, investigations, or proceedings necessary to carry out
Federal responsibilities not specifically preempted by section 18(e));
to conduct enforcement proceedings in contested cases under section 10;
to institute proceedings to correct imminent dangers under section 13;
and to propose civil penalties or inititate criminal proceedings for
violations of the Federal Act under section 17. The Assistant Secretary
may retain jurisdiction under the above provisions in any proceeding
commenced under section 9 or 10 before the effective date of the 18(e)
determination.
(b) In accordance with section 18(e), final approval relinquishes
Federal OSHA authority only with regard to occupational safety and
health issues covered by the Alaska plan. OSHA retains full authority
over issues which are not subject to State enforcement under the plan.
(1) Federal OSHA retains its authority relative to safety and health
in private sector maritime activities and will continue to enforce all
provisions of the Act, rules or orders, and all Federal standards,
current or future, specifically directed to maritime employment (29 CFR
Part 1915, shipyard employment; Part 1917, marine terminals; Part 1918,
longshoring; Part 1919, gear certification) as well as provisions of
general industry and construction standards (29 CFR Parts 1910 and 1926)
appropriate to hazards found in these employments.
(2) Federal jurisdiction will be retained over marine-related
private sector employment at worksites on the navigable waters, such as
floating seafood processing plants, marine construction, employments on
artificial islands, and diving operations in accordance with section
4(b)(1) of the Act.
(3) Federal jurisdiction is also retained and exercised by the
Employment Standards Administration, U.S. Department of Labor
(Secretary's Order 5-96, December 27, 1996) with respect to the field
sanitation standard, 29 CFR 1928.110, and the enforcement of the
temporary labor camps standard, 29 CFR 1910.142, in agriculture, as
described in Sec. 1952.243(b).
(4) Federal jurisdiction is also retained for Native health care
facilities that are Federally owned and contractor operated, including
those owned by the U.S. Department of the Interior, Indian Health
Service; the U.S. Department of Defense; or the U.S. Department of
Commerce, National Oceanic and Atmospheric Administration; and operated
by Tribal organizations under contract with the Indian Health Service.
However, the State retains jurisdiction over construction and contract
maintenance activities at these facilities with the exception of the
Metlakatla Indian Community, Annette Island Service Unit, which is
entirely under Federal jurisdiction. (The State also retains
jurisdiction over Native health care facilities that are leased or owned
by Tribal organizations, except for the Metlakatla Indian Community.)
(5) Federal jurisdiction is also retained with regard to the
operations of private contractors at Cape Lisburne Long Range Missile
Base, Point Lay Short Range Missile Base, Eareckson Air Station on
Shemya Island, Fort Greeley Missile Defense in Delta Junction, the U.S.
Coast Guard Integrated Support Commands in Kodiak and Ketchikan, the
U.S. Coast Guard Air Station in Sitka, and the U.S. Coast
[[Page 78]]
Guard 17th District Command in Juneau.
(6) Federal jurisdiction is also retained for private sector
worksites located within the Annette Islands Reserve of the Metlakatla
Indian Community, for private sector worksites located within the Denali
(Mount McKinley) National Park, for Federal government employers, and
for the U.S. Portal Service (USPS), including USPS employees, and
contract employees and contractor-operated facilities engaged in USPS
mail operations.
(c) Federal authority under provisions of the Act not listed in
section 18(e) is unaffected by final approval of the plan. Thus, for
example, the Assistant Secretary retains his authority under section
11(c) of the Act with regard to complaints alleging discrimination
against employees because of the exercise of any right afforded to the
employee by the Act, although such complaints may be referred to the
State for investigation. The Assistant Secretary also retains his
authority under section 6 of the Act to promulgate, modify or revoke
occupational safety and health standards which address the working
conditions of all employees, including those in States which have
received an affirmative 18(e) determination, although such standards may
not be Federally applied. In the event that the State's 18(e) status is
subsequently withdrawn and Federal authority reinstated, all Federal
standards, including any standards promulgated or modified during the
18(e) period, would be Federally enforceable in that State.
(d) As required by section 18(f) of the Act, OSHA will continue to
monitor the operations of the Alaska State program to assure that the
provisions of the State plan are substantially complied with and that
the program remains at least as effective as the Federal program.
Failure by the State to comply with its obligations may result in the
revocation of the final determination under section 18(e), resumption of
Federal enforcement, and/or proceedings for withdrawal of plan approval.
[49 FR 38261, Sept. 28, 1984, as amended at 54 FR 115, Jan. 4, 1989; 62
FR 2563, Jan. 17, 1997; 65 FR 36625, June 9, 2000; 69 FR 20827, Apr. 19,
2004]
Sec. 1952.245 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations:
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue NW, Room N3700,
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, Suite 715, 1111 Third Avenue,
Seattle, Washington, 98101-3212; and
Office of the Commissioner, Alaska Department of Labor, 1111 W. 8th
Street, Room 306, P.O. Box 24119, Juneau, Alaska 99802-1149.
[65 FR 36625, June 9, 2000]
Sec. 1952.246 Changes to approved plans.
(a) In accordance with part 1953 of this chapter, the following
Alaska plan changes were approved by the Assistant Secretary:
(1) The State submitted a revised field operations manual patterned
after and responsive to modifications to the Federal field operations
manual in effect February 11, 1985 which superseded its earlier approved
manual. The Assistant Secretary approved the manual on October 24, 1985.
(2) The State submitted an industrial hygiene technical manual
patterned after and responsive to modifications to the Federal manual in
effect October 29, 1984. The Assistant Secretary approved the manual on
October 24, 1985.
(3) The State submitted an inspection scheduling system patterned
after and responsive to the Federal system in effect October 29, 1984.
The Assistant Secretary approved the supplement on October 24, 1985.
[[Page 79]]
(4) The State submitted an amendment to its legislation and field
procedures which provided for issuance of an onsite notice of violations
which serves to require correction of other than serious violations in
lieu of a citation. The Assistant Secretary approved these changes on
October 24, 1985.
(5) The State submitted several changes on its administrative and
review rules concerning personal sampling, ex parte warrants, petition
to modify abatement dates, withdrawal of contest, recordkeeping
penalties and exemptions, exemption from scheduled inspections after
consultation, renaming the division of the State agency directly
enforcing standards, and the address for filing contests. The Assistant
Secretary approved these changes on October 24, 1985.
(b) Legislation. (1) On March 29, 1994, the Assistant Secretary
approved Alaska's revised statutory penalty levels which are the same as
the revised Federal penalty levels contained in section 17 of the Act as
amended on November 5, 1990.
(2) [Reserved]
(c) Temporary labor camps/field sanitation. Effective February 3,
1997, the Assistant Secretary approved Alaska's plan amendment, dated
October 1, 1996, relinquishing coverage for the issues of field
sanitation (29 CFR 1928.110) and temporary labor camps (29 CFR 1910.142)
in agriculture (except for agricultural temporary labor camps associated
with egg, poultry or red meat production, or the post-harvest processing
of agricultural or horticultural commodities.) The Employment Standards
Administration, U.S. Department of Labor, has assumed responsibility for
enforcement of these Federal OSHA standards in agriculture in Alaska
pursuant to Secretary of Labor's Order 5-96, dated December 27, 1996.
[50 FR 43133, Oct. 24, 1985, as amended at 59 FR 14556, Mar. 29, 1994;
59 FR 50793, Oct. 5, 1994; 62 FR 2563, Jan. 17, 1997]
Subpart S [Reserved]
Subpart T_Michigan
Sec. 1952.260 Description of the plan as initially approved.
(a) The plan identifies the Michigan Department of Labor and the
Department of Public Health as the agencies to be responsible for
administering the plan throughout the State. The Department of Labor
will be responsible for promulgating and enforcing general safety and
construction safety standards while the Department of Public Health will
be responsible for the promulgation and enforcement of occupational
health standards. Two independent commissions within the Department of
Labor, the Construction Safety Commission and the Occupational Safety
Standards Commission will promulgate general and construction safety
standards while the Director of Public Health will promulgate health
standards. Applications for variances to standards will be handled by
the two Departments. Administrative adjudications will be the
responsibility of the Occupational Safety Compliance and Appeals Board,
the Construction Safety Compliance and Appeals Board, and the
Occupational Health Review Commission.
(b) The State program is expected to extend its protection to all
employees in the State (including those employed by it and its political
subdivisions) except those employed by Federal agencies, maritime
workers, household domestic workers, and mine workers.
(c) The Plan provides that the State agencies will have full
authority to administer and to enforce all laws, rules and orders
protecting employee safety and health in all places of employment in the
State. It also proposes procedures for providing prompt and effective
standards for the protection of employees against new and unforseen
hazards, and for furnishing information to employees on hazards,
precautions, symptoms, and emergency treatment, and procedures for
variances and the protection of employees from hazards. It further,
provides employer and employee representatives an opportunity
[[Page 80]]
to accompany inspectors and call attention to possible violations
before, during and after inspections, protection of employees against
discharge or discrimination in terms and conditions of employment,
notice to employees or their representatives when no compliance action
is taken upon complaints, including informal review, notice to employees
of their protections and obligations, adequate safeguards to protect
trade secrets, prompt notice to employers and employees of alleged
violations of standards and abatement requirements, effective remedies
against employers, and the right to review alleged violations, abatement
periods, and proposed penalties with opportunity for employee
participation in the review proceeding, procedures for prompt restraint
or elimination of imminent danger conditions, provision for the issuance
of cease operation orders in cases where employers fail to comply with
final orders for abatement, and provision for inspections in response to
complaints.
(d) The State intends to promulgate standards for all of the issues
contained in 29 CFR parts 1910 and 1926 with the exception of Ship
Repairing (Sec. 1910.13), Shipbuilding (Sec. 1910.14), Shipbreaking
(Sec. 1910.15) and Long shor ing (Sec. 1910.16), which standards are
to be as effective as Federal standards. Michigan had originally not
intended to promulgate a standard covering coop er age machinery
comparable to 29 CFR 1910.214, but it has now provided assurances that
it will prom ul gate such standard if the hazards covered by the Federal
coop er age standard are found to exist in Michigan. The State has
already prom ul gat ed standards as effective as subparts F, K, M, Q and
S and the remaining subparts are to be covered by State standards which
are to be prom ul gat ed by June 1975.
(e) The Plan includes a statement of the Governor's support for the
proposed legislation and a statement of legal opinion that it will meet
the requirements of the Occupational Safety and Health Act of 1970, and
is consistent with the Constitution and laws of Michigan. The Plan sets
out goals and provides a timetable for bringing it into full conformity
with part 1902 of this title upon enactment of the proposed legislation
by the State legislature. A merit system of personnel administration
will be used. In addition, health and safety education and training
programs are to be carried on for the benefit of employers and
employees. The Department of Labor will also be conducting a Safety
Director Program wherein companies which are found to have high injury
incident rates will be assisted in developing safety programs.
[38 FR 27391, Oct. 3, 1973, as amended at 60 FR 20193, Apr. 25, 1995]
Sec. 1952.261 Developmental schedule.
(a) Enactment of the Michigan Occupational Safety and Health Act by
December 1973.
(b) Promulgation of occupational safety and health standards as
effective and comprehensive as those set forth in chapter XVII of this
title 29 of the Code of Federal Regulations by June 1975.
(c) Completion of the Michigan Compliance Manual within one year
after passage of the state legislation.
(d) Promulgation of regulations similar to parts 1903, 1905, and
2200 of this title within one year after passage of the state
legislation.
(e) Promulgation of 29 CFR part 1904 as a State regulation,
including any amendments to part 1904, within one (1) year following
passage of the proposed legislation.
(f) Development of a new coordination agreement between the Michigan
Departments of Labor and Public Health within three months following the
passage of the proposed state legislation.
(g) Implementation of the state's public employee program within one
year following passage of the proposed legislation.
(h) Within three years of plan approval all developmental steps will
be fully implemented.
This certification attests to structural completion, but does not render
judgment on adequacy of performance.
[38 FR 27391, Oct. 3, 1973, as amended at 46 FR 3865, Jan. 16, 1981.
Redesignated and amended at 60 FR 20193, Apr. 25, 1995]
[[Page 81]]
Sec. 1952.262 Completion of developmental steps and certification.
(a) In accordance with Sec. 1952.263(a), the Michigan Occupational
Safety and Health Act was enacted on June 18, 1974 and is effective
January 1, 1975. This legislation, Act 154 of Michigan Public Acts of
1974, was submitted to the Assistant Secretary on June 19, 1974 and
approved on February 21, 1975.
(b) In accordance with Sec. 1952.263(f) the Michigan Department of
Labor and the Michigan Department of Public Health have entered into a
new interagency agreement on September 23, 1974. The agreement was
submitted to the Assistant Secretary on October 28, 1974, and approved
on February 21, 1975.
(c) In accordance with the requirements of Sec. 1952.10, the
Michigan State poster was approved by the Assistant Secretary on
September 22, 1975.
(d) In accordance with Sec. 1952.263(g) Michigan's public employee
program was implemented with an effective date of July 1, 1975, and
approved by the Assistant Secretary on October 17, 1977.
(e) In accordance with Sec. 1952.263(d), Procedural Rules for the
granting of Variances, Regulations for Inspections and Investigations,
Citations, and Proposed Penalties and Procedural Rules for the Board of
Health and Safety Compliance and Appeals, were approved by the Assistant
Secretary on January 12, 1981.
(f) In accordance with prior commitments, the Michigan Occupational
Safety and Health Act as amended by Act 149 of the Public Acts of 1979,
was approved by the Assistant Secretary on January 12, 1981.
(g) In accordance with Sec. 1952.263(c), Manuals for Compliance
Operations of the Michigan Department of Labor and Public Health were
approved by the Assistant Secretary on January 13, 1981.
(h) In accordance with Sec. 1952.263(e), Rules for Recording and
Reporting of Occupational Injuries and Illnesses, were approved by the
Assistant Secretary on January 13, 1981.
(i) In accordance with Sec. 1902.34 of this chapter, the Michigan
occupational safety and health plan was certified effective January 13,
1981 as having completed all developmental steps specified in the plan
as approved on September 24, 1973, on or before September 24, 1976.
[40 FR 8556, Feb. 28, 1975, as amended at 40 FR 44132, Sept. 25, 1975;
42 FR 57123, Nov. 1, 1977; 46 FR 3862, 3863, Jan. 16, 1981. Redesignated
and amended at 60 FR 20193, Apr. 25, 1995]
Sec. 1952.263 Compliance staffing benchmarks.
Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (``benchmarks'') necessary for a ``fully
effective'' enforcement program were required for each State operating
an approved State plan. In 1992, Michigan completed, in conjunction with
OSHA, a reassessment of the levels initially established in 1980 and
proposed revised benchmarks of 56 safety and 45 health compliance
officers. After opportunity for public comment and service on the AFL-
CIO, the Assistant Secretary approved these revised staffing
requirements on April 20, 1995.
[60 FR 20193, Apr. 25, 1995]
Sec. 1952.264 [Reserved]
Sec. 1952.265 Level of Federal enforcement.
Pursuant to Sec. Sec. 1902.20(b)(1)(iii) and 1954.3 of this chapter
under which an agreement has been entered into with Michigan, effective
January 6, 1977, and based on a determination that Michigan is
operational in the issues covered by the Michigan occupational safety
and health plan, discretionary Federal enforcement activity under
section 18(e) of the Act (29 U.S.C. 667(e)) will not be initiated with
regard to Federal occupational safety and health standards in issues
covered under 29 CFR Parts 1910 and 1926, except as provided in this
section. The U.S. Department of Labor will continue to exercise
authority, among other things, with regard to: Complaints filed with the
U.S. Department of Labor about violations of the discrimination
provisions of section 11(c) of the Act (29 U.S.C. 660(c)); Federal
standards promulgated subsequent to the agreement where necessary to
protect employees, as in the case of temporary emergency standards
promulgated under section 6(c) of the
[[Page 82]]
Act (29 U.S.C. 655(c)), in the issues covered under the plan and the
agreement until such time as Michigan shall have adopted equivalent
standards in accordance with subpart C of 29 CFR Part 1953; private
sector maritime activities and will continue to enforce all provisions
of the Act, rules or orders, and all Federal standards, current or
future, specifically directed to maritime employment (29 CFR Part 1915,
shipyard employment; Part 1917, marine terminals; Part 1918,
longshoring; Part 1919, gear certification) as well as provisions of
general industry and construction standards (29 CFR Parts 1910 and 1926)
appropriate to hazards found in these employments; which issues have
been specifically excluded from coverage under the Michigan plan; and
investigations and inspections for the purpose of the evaluation of the
Michigan plan under sections 18(e) and (f) of the Act (29 U.S.C. 667(e)
and (f)). Federal OSHA will also retain authority for coverage of
Federal government employers and employees; and of the U.S. Postal
Service (USPS), including USPS employees, and contract employees and
contractor-operated facilities engaged in USPS mail operations. The OSHA
Regional Administrator will make a prompt recommendation for the
resumption of the exercise of Federal enforcement authority under
section 18(e) of the Act (29 U.S.C. 667(e)) whenever, and to the degree,
necessary to assure occupational safety and health protection to
employees in Michigan.
[65 FR 36626, June 9, 2000]
Sec. 1952.266 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations:
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue, NW, Room N3700,
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, 230 S. Dearborn Street, 32nd
Floor, Room 3244, Chicago, Illinois 60604;
Office of the Director, Michigan Department of Consumer and Industry
Services, 4th Floor, Law Building, 525 West Ottawa Street, Lansing,
Michigan 48933 (Mailing address: P.O. Box 30004, Lansing, Michigan
48909).
[65 FR 36626, June 9, 2000]
Sec. 1952.267 Changes to approved plans.
(a) Legislation. (1) On March 29, 1994, the Assistant Secretary
approved Michigan's revised statutory penalty levels which are the same
as the revised Federal penalty levels contained in section 17 of the Act
as amended on November 5, 1990.
(2) [Reserved]
(b) [Reserved]
[59 FR 14556, Mar. 29, 1994. Redesignated at 60 FR 20193, Apr. 25, 1995]
Subpart U_Vermont
Source: 38 FR 28659, Oct. 16, 1973, unless otherwise noted.
Sec. 1952.270 Description of the plan.
(a) The State's program will be administered and enforced by the
Department of Labor and Industry. Safety standards are to be promulgated
by the Commissioner of Labor and Industry while the Secretary of the
Agency of Human Services is to promulgate health standards. The Division
of Industrial Hygiene, within the Department of Labor and Industry, will
then have the responsibility of inspecting workplaces for violations of
health standards. However, enforcement of the Vermont Occupational
Safety and Health Act, including the issuance of citations for all
violations, rests with the Department of Labor and Industry.
Administrative adjudications will be the responsibility of an
independent State Occupational Safety and Health Review Board.
(b) The State program will protect all employees within the state
including those employed by the State and its political subdivisions.
Public employees are to be granted the same protections as are afforded
employees in the private sector. Specific administrative procedures for
implementing the plan within the State agencies are to be drafted by the
Vermont Agency of Administration.
[[Page 83]]
(c) Vermont has adopted all Federal standards promulgated before
December 31, 1972. Future permanent Federal standards will be adopted by
the state within one year after promulgation by the Secretary of Labor.
(d) The State enabling legislation became law on July 1, 1972. The
Act sets forth the general authority and scope for implementing the
plan. The plan also contains proposed amendments to the Act which are
designed to bring the legislation into full conformity with section
18(c) of the Federal Act and part 1902. The State has also adopted
regulations patterned after 29 CFR parts 1903, 1904 and 1905.
(e) The Vermont Act and the regulations drafted pursuant to it
provide procedures for prompt and effective standards-setting for the
protection of employees against new and unforeseen hazards and for
furnishing information to employees on hazards, precautions, symptoms,
and emergency treatment; variances; the giving to employer and employee
representatives an opportunity to accompany inspectors and to call
attention to possible violations before, during, and after inspections;
the protection of employees against discharge or discrimination in terms
or conditions of employments; notice to employees or their
representatives when no compliance action is taken upon complaints,
including informal review; notice to employees of their protections and
obligations; adequate safeguards to protect trade secrets; prompt notice
to employers and employees of alleged violations of standards and
abatement requirements; effective sanctions against employers; the right
to review alleged violations, abatement periods, and proposed penalties
with the opportunity for employee participation in the review
proceedings; prompt restraint or elimination of imminent danger
conditions; and the development of a program to encourage voluntary
compliance by employers and employees.
(f) The plan includes a statement of the Governor's support of it
and of the proposed amendments to its legislation. It sets out goals and
provides a timetable for bringing the plan into full conformity with
part 1902. Personnel hired under the state's merit system will carry out
the program.
Sec. 1952.271 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations:
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue, NW, Room N3700,
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, John F. Kennedy Federal
Building, Room E-340, Boston, Massachusetts 02203; and
Office of the Commissioner, Vermont Department of Labor and Industry,
National Life Building-Drawer 20, 120 State Street, Montpelier, Vermont
05620-3401.
[65 FR 36626, June 9, 2000]
Sec. 1952.272 Level of Federal enforcement.
Pursuant to Sec. Sec. 1902.20(b)(1)(iii) and 1954.3 of this chapter
under which an agreement has been entered into with Vermont, effective
February 19, 1975, and based on a determination that Vermont is
operational in issues covered by the Vermont occupational safety and
health plan, discretionary Federal enforcement authority under section
18(e) of the Act (29 U.S.C. 667(e)) will not be initiated with regard to
Federal occupational safety and health standards in issues covered under
29 CFR Parts 1910 and 1926, except as provided in this section. The U.S.
Department of Labor will continue to exercise authority, among other
things, with regard to: Complaints filed with the U.S. Department of
Labor about violations of the discrimination provisions of section 11(c)
of the Act (29 U.S.C. 660(c)); federal standards promulgated subsequent
to the agreement where necessary to protect employees, as in the case of
temporary emergency standards promulgated under section 6(c) of the Act
(29 U.S.C. 665(c)), in the issues covered under the plan and the
agreement until such time as Vermont shall have adopted equivalent
standards in accordance with Subpart C of 29
[[Page 84]]
CFR Part 1953; in private sector offshore maritime activities and will
continue to enforce all provisions of the Act, rules or orders, and all
Federal standards, current or future, specifically directed to maritime
employment (29 CFR Part 1915, shipyard employment; Part 1917, marine
terminals; Part 1918, longshoring; Part 1919, gear certification) as
well as provisions of general industry and construction standards (29
CFR Parts 1910 and 1926) appropriate to hazards found in these
employments, as they relate to employment under the exclusive
jurisdiction of the Federal government on the navigable waters of the
United States, including dry docks, graving docks, and marine railways;
and investigations and inspections for the purpose of the evaluation of
the Vermont plan under sections 18(e) and (f) of the Act (29 U.S.C.
667(e) and (f)). Federal OSHA will also retain authority for coverage of
Federal government employers and employees; and of the U.S. Postal
Service (USPS), including USPS employees, and contract employees and
contractor-operated facilities engaged in USPS mail operations. The OSHA
Regional Administrator will make a prompt recommendation for the
resumption of the exercise of Federal enforcement authority under
Section 18(e) of the Act (29 U.S.C. 667(e)) whenever, and to the degree,
necessary to assure occupational safety and health protection to
employees in Vermont.
[65 FR 36627, June 9, 2000]
Sec. 1952.273 Developmental schedule.
(a) Introduction and enactment of amendments to the Vermont
Occupational Safety and Health Act in the 1974 session of the State
legislature;
(b) Completion of the State's Compliance Manual;
(c) Drafting of rules governing the operation of the Occupational
Safety and Health Review Board;
(d) Development of specific administrative procedures for
implementing the occupational safety and health program within the State
agencies by January 1974;
(e) Development of the State's Voluntary Compliance Program for
Employers and Employees by January 1974;
(f) Appointment of advisory committees for safety and health
standards upon plan approval;
(g) Within three years of plan approval all developmental steps will
be fully implemented.
Sec. 1952.274 Completion of developmental steps and certification.
(a) In accordance with Sec. 1952.273(a), amendments to the Vermont
Occupational Safety and Health Act were passed by the legislature and
signed by the Governor on April 3, 1974.
(b) In accordance with Sec. 1952.273(c), rules governing the
operation of the Occupational Safety and Health Review Board have been
adopted, under section 230 of the Vermont Act, effective January, 1974.
(c) In accordance with 29 CFR 1952.273(f), the Vermont Standards
Advisory Council was established in January 1974.
(d) In accordance with 29 CFR 1952.273(g), the following
developmental steps have been implemented.
(1) The health and safety enforcement program in the State of
Vermont including enforcement of the State's occupational safety and
health standards and regulations, was implemented on November 12, 1973.
(2) The Vermont Occupational Safety and Health Review Board has been
in operation since October 1973, under rules and regulations formally
promulgated on February 4, 1974 and approved on December 16, 1974 (39 FR
44201, December 23, 1974).
(3) Recordkeeping and reporting requirements, as approved on October
1, 1973 (38 FR 28658), were implemented for both the private and public
sectors on November 12, 1973.
(4) Written procedures for coordination between Vermont's Division
of Occupational Safety and Division of Occupational Health were
formulated in June 1975, and revised in September 1975.
(e) In accordance with the requirements of Sec. 1952.10 the Vermont
Safety and Health Poster for private and public employees as amended by
the attachment informing the public of its right to complain about State
program administration, was approved by the
[[Page 85]]
Assistant Secretary on February 9, 1977.
(f) In accordance with 29 CFR 1952.273(b), the State has developed a
Field Operations Manual which defines the procedures and guidelines to
be used by the Vermont compliance staff in carrying out the goals of the
program and other local government workplaces and which has been
approved by the Assistant Secretary on February 22, 1977.
(g) In accordance with 29 CFR 1952.273(d), the State has developed
and implemented a State Agency Program by July 1, 1974 and a Public
Agency (local and municipal) Enforcement Program by November 12, 1973,
which has been approved by the Assistant Secretary on February 22, 1977.
(h) In accordance with 29 CFR 1952.273(e), the State of Vermont has
developed and implemented its voluntary Compliance Program, including a
training program for employers and employees, by February 1974, which
has been approved by the Assistant Secretary as completion of
developmental step on February 22, 1977.
(i) In accordance with 29 CFR 1902.34, the Vermont occupational
safety and health plan was certified, effective as of the date of
publication on March 4, 1977, as having completed all developmental
steps specified in the plan (as approved on October 1, 1973) on or
before September 30, 1976.
[39 FR 44202, Dec. 23, 1974, as amended at 42 FR 2313, Jan. 11, 1977; 42
FR 9169, Feb. 15, 1977; 42 FR 10989, Feb. 25, 1977, 42 FR 12428, Mar. 4,
1977]
Sec. 1952.275 Changes to approved plans.
(a) Legislation. (1) On March 29, 1994, the Assistant Secretary
approved Vermont's revised statutory penalty levels which are the same
as the revised Federal penalty levels contained in section 17 of the Act
as amended on November 5, 1990.
(2) [Reserved]
(b) [Reserved]
[59 FR 14556, Mar. 29, 1994]
Subpart V [Reserved]
Subpart W_Nevada
Sec. 1952.290 Description of the plan as initially approved.
(a) The Nevada Occupational Safety and Health program will be
administered and enforced by the Department of Occupational Safety and
Health of the Nevada Industrial Commission. Administrative adjudications
of proposed penalties will be the responsibility of an independent five
member review board appointed by the Governor.
(b) The program will cover all activities of employees and places of
private and public employment except those involving Federal employment,
highway motor vehicles, and railroads, subject to the exercise of
jurisdiction under other Federal safety and health programs. It requires
employers of one or more employees (including those employed by the
State and its political subdivisions) to furnish them employment and a
place of employment which are free from recognized hazards that are
causing or are likely to cause death or serious physical harm, and to
comply with all occupational safety and health standards promulgated or
issued by the agency. Moreover, all safety and health standards adopted
by the United States Department of Labor shall be deemed Nevada
Occupational Safety and Health standards. The Plan also directs
employees to comply with all occupational safety and health standards
and regulations that are applicable to their own actions and conduct.
(c) The Plan includes procedures for providing prompt and effective
standards for the protection of employees against new and unforeseen
hazards and for furnishing information to employees on hazards,
precautions, symptoms, and emergency treatment; and procedures for the
issuance of variances. It provides employer and employee representatives
an opportunity to accompany inspectors and call attention to possible
violations, before, during, and after inspections; protection of
employees against discharge or discrimination in terms and conditions of
employment; notice to employees or their representatives when no
compliance action is taken upon complaints, including informal review;
notice to employees of their
[[Page 86]]
protections and obligations; adequate safeguards to protect trade
secrets; prompt notice to employers and employees of alleged violations
of standards and abatement requirements; effective remedies against
employers and the right to review alleged violations, abatement periods,
and proposed penalties with opportunity for employee participation in
the review proceedings; procedures for prompt restraint or elimination
of imminent danger conditions, and procedures for inspection in response
to complaints.
(d)(1) The Plan includes a legal opinion that it will meet the
requirements of the Occupational Safety and Health Act of 1970, and is
consistent with the Constitution and laws of the State of Nevada.
(2) A merit system of personnel administration will be used.
(3) The Plan provides a program of education, training, and
consultation for employers and employees.
(4) The Plan is supplemented by the inclusion of implementing
legislation and letters dated July 26, August 10, and November 5, 1973,
and a telegram dated December 5, 1973.
[39 FR 1009, Jan. 4, 1974, as amended at 39 FR 8613, Mar. 6, 1974]
Sec. 1952.291 Developmental schedule.
The following is a summary of the major developmental steps provided
by the plan:
(a) Training of enforcement personnel to be completed--July 1, 1974.
(b) Application of the program to State and local employees to take
effect--July 1, 1974.
(c) Not less than two industrial hygiene experts shall participate
in the program--July 1, 1975.
(d) Proposed amendments to the Nevada Occupational Safety and Health
Act to have been adopted and to take effect--July 1, 1975.
(e) System of recordkeeping and reporting fully developed and
operational--January 1, 1977.
(f) Program to be fully implemented--January 1, 1977.
[39 FR 1009, Jan. 4, 1974. Redesignated at 52 FR 34383, Sept. 11, 1987]
Sec. 1952.292 Completion of developmental steps and certification.
(a) A separate and autonomous on-site consultation program became
effective on July 1, 1975, and was approved by the Assistant Secretary
on February 26, 1976.
(b) In accordance with Sec. 1952.293(c), as amended, the Nevada
health program was submitted on December 3, 1976 and has been
implemented.
(c) In accordance with the requirements of Sec. 1952.10, the Nevada
poster for private employers was approved by the Assistant Secretary on
December 23, 1977.
(d) In accordance with Sec. 1952.293(a), initial training of Nevada
personnel has been completed.
(e) Nevada began participation in the Bureau of Labor Statistics
annual survey of occupational injuries and illnesses on July 19, 1976.
(f) Standards identical to Federal standards promulgated through
January 18, 1977 were adopted by the State and approved by the Regional
Administrator in a notice published in the Federal Register on July 26,
1977 (42 FR 38026).
(g) Regulations concerning the Rules of Occupational Safety and
Health Recordkeeping Requirements were submitted on September 16, 1976,
revised effective January 9, 1981, and approved by the Assistant
Secretary on August 13, 1981.
(h) Regulations concerning the Rules of Procedures of Occupational
Safety and Health Review Commission; Rules of Practice for Variances;
and Rules for Inspections, Citations, and Proposed Penalties were
submitted on June 24, 1975, revised effective January 9, 1981, and
approved by the Assistant Secretary on August 13, 1981.
(i) Regulations concerning the Public Employee Program were
submitted on June 24, 1975, revised effective February 15, 1979, and
approved by the Assistant Secretary on August 13, 1981.
(j) In accordance with the requirements of Sec. 1952.10, the
revised poster was submitted on April 7, 1980, and approved by the
Assistant Secretary on August 13, 1981.
(k) Amendments to the State's legislation were submitted on June 24,
1975 and July 1, 1977, became effective on
[[Page 87]]
July 1, 1975 and July 1, 1977, and approved by the Assistant Secretary
on August 13, 1981.
(l) The Nevada Field Operations Manual was submitted on June 24,
1975, revised to reflect those changes made in the Federal Field
Operations Manual through March, 1981, and approved by the Assistant
Secretary on August 13, 1981.
(m) In accordance with Sec. 1902.34 of this chapter, the Nevada
occupational safety and health plan was certified, effective August 13,
1981 as having completed all developmental steps specified in the plan
as approved on December 28, 1973, on or before January 1, 1977. This
certification attests to structural completion, but does not render
judgment on adequacy of performance.
[41 FR 8955, Mar. 2, 1976, as amended at 42 FR 64627, Dec. 27, 1977; 46
FR 42844, 42846, Aug. 25, 1981. Redesignated at 52 FR 34383, Sept. 11,
1987]
Sec. 1952.293 Compliance staffing benchmarks.
Under the terms of the 1978 Court Order in AFL-CIO v. Marshall
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In July 1986 Nevada, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised compliance staffing benchmarks
of 11 safety and 5 health compliance officers. After opportunity for
public comment and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements on September 2, 1987.
[52 FR 34383, Sept. 11, 1987]
Sec. 1952.294 Final approval determination.
(a) In accordance with section 18(e) of the Act and procedures in 29
CFR Part 1902, and after determination that the State met the ``fully
effective'' compliance staffing benchmarks as revised in 1986 in
response to a court order in AFL-CIO v. Marshall, 570 F.2d 1030 (D.C.
Cir 1978), and was satisfactorily providing reports to OSHA through
participation in the Federal-State Integrated Management Information
System, the Assistant Secretary evaluated actual operations under the
Nevada State plan for a period of at least one year following
certification of completion of developmental steps. Based on an 18(e)
Evaluation Report covering the period July 1, 1995 through March 31,
1999, and after opportunity for public comment, the Assistant Secretary
determined that in operation the State of Nevada's occupational safety
and health program is at least as effective as the Federal program in
providing safe and healthful employment and places of employment and
meets the criteria for final State plan approval in section 18(e) of the
Act and implementing regulations at 29 CFR Part 1902. Accordingly, the
Nevada plan was granted final approval and concurrent Federal
enforcement authority was relinquished under section 18(e) of the Act
effective April 18, 2000.
(b) Except as otherwise noted, the plan which has received final
approval covers all activities of employers and all places of employment
in Nevada. The plan does not cover Federal government employers and
employees; any private sector maritime activities; employment on Indian
land; any contractors or subcontractors on any Federal establishment
where the land is determined to be exclusive Federal jurisdiction; and
the U.S. Postal Service (USPS), including USPS employees, contract
employees, and contractor-operated facilities engaged in USPS mail
operations.
(c) Nevada is required to maintain a State program which is at least
as effective as operations under the Federal program; to submit plan
supplements in accordance with 29 CFR Part 1953; to allocate sufficient
safety and health enforcement staff to meet the benchmarks for State
staffing established by the U.S. Department of Labor, or any revisions
to those benchmarks; and, to furnish such reports in such form as the
Assistant Secretary may from time to time require.
[65 FR 20742, Apr. 18, 2000, as amended at 65 FR 36627, June 9, 2000]
[[Page 88]]
Sec. 1952.295 Level of Federal enforcement.
(a) As a result of the Assistant Secretary's determination granting
final approval to the Nevada State plan under section 18(e) of the Act,
effective April 18, 2000, occupational safety and health standards which
have been promulgated under section 6 of the Act do not apply with
respect to issues covered under the Nevada Plan. This determination also
relinquishes concurrent Federal OSHA authority to issue citations for
violations of such standards under section 5(a)(2) and 9 of the Act; to
conduct inspections and investigations under section 8 (except those
necessary to conduct evaluation of the plan under section 18(f) and
other inspections, investigations, or proceedings necessary to carry out
Federal responsibilities not specifically preempted by section 18(e));
to conduct enforcement proceedings in contested cases under section 10;
to institute proceedings to correct imminent dangers under section 13;
and to propose civil penalties or initiate criminal proceedings for
violations of the Federal OSH Act under section 17. The Assistant
Secretary retains jurisdiction under the above provisions in any
proceeding commenced under section 9 or 10 before the effective date of
the 18(e) determination.
(b)(1) In accordance with section 18(e), final approval relinquishes
Federal OSHA authority only with regard to occupational safety and
health issues covered by the Nevada plan. OSHA retains full authority
over issues which are not subject to State enforcement under the plan.
Thus, Federal OSHA retains its authority relative to safety and health
in private sector maritime activities and will continue to enforce all
provisions of the Act, rules or orders, and all Federal standards,
current or future, specifically directed to any private sector maritime
activities (occupational safety and health standards comparable to 29
CFR Parts 1915, shipyard employment; 1917, marine terminals; 1918,
longshoring; and 1919, gear certification, as well as provisions of
general industry and construction standards (29 CFR Parts 1910 and 1926)
appropriate to hazards found in these employments), employment on Indian
land, and any contractors or subcontractors on any Federal establishment
where the land is determined to be exclusive Federal jurisdiction.
Federal jurisdiction is also retained with respect to Federal government
employers and employees. Federal OSHA will also retain authority for
coverage of the U.S. Postal Service (USPS), including USPS employees,
contract employees, and contractor-operated facilities engaged in USPS
mail operations.
(2) In addition, any hazard, industry, geographical area, operation
or facility over which the State is unable to effectively exercise
jurisdiction for reasons which OSHA determines are not related to the
required performance or structure of the plan shall be deemed to be an
issue not covered by the State plan which has received final approval,
and shall be subject to Federal enforcement. Where enforcement
jurisdiction is shared between Federal and State authorities for a
particular area, project, or facility, in the interest of administrative
practicability Federal jurisdiction may be assumed over the entire
project or facility. In any of the aforementioned circumstances, Federal
enforcement authority may be exercised after consultation with the State
designated agency.
(c) Federal authority under provisions of the Act not listed in
section 18(e) is unaffected by final approval of the Nevada State plan.
Thus, for example, the Assistant Secretary retains his authority under
section 11(c) of the Act with regard to complaints alleging
discrimination against employees because of the exercise of any right
afforded to the employee by the Act, although such complaints may be
referred to the State for investigation. The Assistant Secretary also
retains his authority under section 6 of the Act to promulgate, modify
or revoke occupational safety and health standards which address the
working conditions of all employees, including those in States which
have received an affirmative 18(e) determination, although such
standards may not be Federally applied. In the event that the State's
18(e) status is subsequently withdrawn and Federal authority reinstated,
all Federal standards, including any
[[Page 89]]
standards promulgated or modified during the 18(e) period, would be
Federally enforceable in that State.
(d) As required by section 18(f) of the Act, OSHA will continue to
monitor the operations of the Nevada State program to assure that the
provisions of the State plan are substantially complied with and that
the program remains at least as effective as the Federal program.
Failure by the State to comply with its obligations may result in the
suspension or revocation of the final approval determination under
Section 18(e), resumption of Federal enforcement, and/or proceedings for
withdrawal of plan approval.
[65 FR 20742, Apr. 18, 2000, as amended at 65 FR 36627, June 9, 2000]
Sec. 1952.296 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations: Office of State Programs, Directorate of Federal-State
Operations, Occupational Safety and Health Administration, U.S.
Department of Labor, 200 Constitution Avenue NW, Room N3700, Washington,
DC 20210; Office of the Regional Administrator, Occupational Safety and
Health Administration, Room 415, 71 Stevenson Street, San Francisco,
California 94105; Office of the State Designee, Administrator, Nevada
Division of Industrial Relations, 400 West King Street, Suite 400,
Carson City, Nevada 89703.
[65 FR 20743, Apr. 18, 2000]
Sec. 1952.297 Changes to approved plans.
(a) Legislation. (1) On March 29, 1994, the Assistant Secretary
approved Nevada's revised statutory penalty levels which are the same as
the revised Federal penalty levels contained in section 17 of the Act as
amended on November 5, 1990.
(2) [Reserved]
(b) Notices of violation. The State submitted a procedure for
issuing notices of violation in lieu of citations for certain other than
serious violations which the employer agrees to abate. The procedure as
modified was approved by the Assistant Secretary on August 24, 1995.
(c) Legislation. The State submitted amendments to its Occupational
Safety and Health Act, enacted in 1981, which: provide for notices of
violation in lieu of citations for certain other than serious
violations; delete the authority for temporary variances for other than
new standards; allow the Nevada Occupational Safety and Health Appeals
Board to employ legal counsel; allow penalty collection actions to be
brought in any court of competent jurisdiction; and ensure
confidentiality to employees making statements to the Division of
Occupational Safety and Health. Further amendments, enacted in 1989:
require the maintenance of specific logs relating to complaints; provide
public access to records on complaints, except for confidential
information; provide confidentiality for those employees who file
complaints or make statements, as well as for files relating to open
cases; allow representatives of employees and former employees access to
any records which indicate their exposure to toxic materials or harmful
physical agents; define representative of employees or former employees;
allow health care providers and government employees in the field of
public safety, to file complaints; allow for oral complaints; require
the division to respond to valid complaints of serious violations
immediately and of other violations within 14 days; provide that an
employee who accompanies a compliance officer on the inspection is
entitled to be paid for the time spent, but that only one employee may
accompany the compliance officer during the inspection; allow the
Administrator of the Division of Occupational Safety and Health to issue
an emergency order to restrain an imminent danger situation; and, double
maximum authorized penalty levels. Amendments enacted in 1993 reflect
the new State organizational structural by designating the previous
Divisions as sections in the Division of Industrial Relations of the
Department of Business and Industry. The Assistant Secretary approved
these amendments on August 24, 1995.
[[Page 90]]
(d) Field Operations Manual. The State's Field Operations Manual,
comparable to the Federal Field Operations Manual, through Change 4, was
approved by the Assistant Secretary on August 24, 1995.
(e) Consultation Manual. The State's Training and Consultation
Section Policies and Procedures Manual was approved by the Assistant
Secretary on August 24, 1995.
(f) Occupational Safety and Health Administration Technical Manual.
The State's adoption of the Federal OSHA Technical Manual, through
Change 3, with a cover sheet adapting Federal references to the State's
administrative structure, was approved by the Assistant Secretary on
August 24, 1995.
(g) Pre-construction conferences. A State regulations requiring pre-
construction conferences with the Division of Industrial Relations for
certain types of construction projects was approved by the Assistant
Secretary on August 24, 1995.
(h) Reorganized Plan. The reorganization of the Nevada plan was
approved by the Assistant Secretary on August 24, 1995.
[59 FR 14556, Mar. 29, 1994, as amended at 60 FR 43972, Aug. 24, 1995]
Subpart X [Reserved]
Subpart Y_Hawaii
Sec. 1952.310 Description of the plan as initially approved.
(a) The plan designates the Department of Labor and Industrial
Relations as the agency responsible for administering the plan
throughout the State. It proposes to define the occupational safety and
health issues covered by it as defined by the Secretary of Labor in 29
CFR 1902.2(c)(1). All occupational safety and health standards
promulgated by the U.S. Secretary of Labor will be adopted under the
plan as well as certain standards deemed to be ``as effective as'' the
Federal standards, except those found in 29 CFR parts 1915, 1916, 1917,
and 1918 (ship repairing, shipbuilding, shipbreaking and long shoring).
(b) Within the plan there is the Hawaii Occupational Safety and
Health Law which became law on May 16, 1972. The law as enacted gives
the Department of Labor and Industrial Relations the authority to
inspect workplaces and to issue citations for the abatement of
violations and there is also included a prohibition against advance
notice of such inspections. The law is also intended to insure employer
and employee representatives an opportunity to accompany inspectors and
to call attention to possible violations; notification of employees or
their representatives when no compliance action is taken as a result of
alleged violations; protection of employees against discharge or
discrimination in terms and conditions of employment; adequate
safeguards to protect trade secrets. There is provision made for the
prompt restraint of imminent danger situations and a system of penalties
for violation of the law.
(c) The plan also includes proposed amendments to be considered by
the Hawaii Legislature during its 1974 session amending the Occupational
Safety and Health Law, and related provisions, to bring them into
conformity with the requirements of part 1902.
(d) The Hawaii plan includes the following documents as of the date
of approval:
(1) The plan description documents, including the Hawaii
Occupational Safety and Health Law, the proposed amendments to the Law
and appendices in three (3) volumes;
(2) Letter from Robert K. Hasegawa, Director of the Department of
Labor and Industrial Relations, to Jay Arnoldus, Project Officer, Office
of Federal and State Operations, December 10, 1973, submitting
clarifications to the plan.
(3) Letters from Robert C. Gilkey, Deputy Director of the Department
of Labor and Industrial Relations, to Jay Arnoldus, December 3, 1973 and
December 4, 1973 submitting clarifications and deletion to the plan.
(4) Letters from Robert K. Hasegawa to Gabriel Gillotti, Assistant
Regional Director, January 30, 1973, and June 28, 1973.
(5) Letter from Robert A. Gilkey to John H. Stender, Assistant
Secretary of Labor, October 30, 1973.
[[Page 91]]
(6) Letters from Robert K. Hasegawa to John H. Stender, Assistant
Secretary of Labor, November 7, 1973 and September 14, 1973 submitting
proposed legislative amendments and modifications and clarifications to
the plan.
[39 FR 1012, Jan. 4, 1974, as amended at 49 FR 19192, May 4, 1984]
Sec. 1952.311 Developmental schedule.
(a) Introduction of Legislative amendments to State Legislature
January 1974.
(b) Hearings on standards promulgation March 1974.
(c) Implementation of the Management Information System by December
1975.
(d) Complete implementation of the occupational health program by
July 1975.
(e) Complete State plan implementation December 1976.
[39 FR 1013, Jan. 4, 1974. Redesignated and amended at 39 FR 44752, Dec.
27, 1974; 40 FR 28792, July 9, 1975. Further redesignated at 49 FR
19192, May 4, 1984]
Sec. 1952.312 Completion of developmental steps and certification.
(a) In accordance with Sec. 1952.313(i), specific Legislative
amendments were enacted by the State Legislature and signed by the
Acting Governor on June 7, 1974, and amended by Act 95 of the 1976
Hawaii Legislative Session.
(b) In accordance with Sec. 1952.313(d), as amended, the Hawaii
Occupational Health Plan was submitted to the Assistant Secretary on
April 16, 1974, and approved on December 20, 1974, incorporating
assurances from the State, by letter dated November 19, 1974.
(c) In accordance with Sec. 1952.313(b), as amended, the Hawaii
occupational safety and health standards were promulgated on April 18,
22, 23, 24, and 25, 1975.
(d) In accordance with the requirements of 29 CFR 1952.10, the
Hawaii State poster was approved by the Assistant Secretary on February
4, 1975.
(e) In accordance with 29 CFR 1952.313(d), as amended, the Hawaii
occupational health program was implemented on July 1, 1975.
(f) The Rules of Procedure of the Hawaii Division of Occupational
Safety and Health were promulgated in September, 1972, and revised in
January, 1974. These rules include: Regulations on inspections,
citations, and proposed penalties (chapter 102); regulations for
recording and reporting occupational injuries and illnesses (chapter
103); rules of practice for variances (chapter 104); regulations
concerning administration witnesses and documents in private litigation
(chapter 105); and regulations for promulgating, modifying, or revoking
occupational safety and health standards (chapter 106).
(g) In accordance with 29 CFR 1952.313(c), as amended, the Hawaii
Management Information System was completed and in operation by December
31, 1975.
(h) In accordance with Sec. 1902.34 of this chapter, the Hawaii
occupational safety and health plan was certified, effective April 26,
1978 as having completed all developmental steps specified in the plan
as approved on December 28, 1973, on or before December 31, 1976.
[39 FR 44203, Dec. 23, 1974, as amended at 39 FR 44752, Dec. 27, 1974;
40 FR 6336, Feb. 11, 1975; 41 FR 26218, June 25, 1976; 43 FR 5821, Feb.
10, 1978; 43 FR 19851, May 9, 1978. Redesignated at 49 FR 19192, May 4,
1984]
Sec. 1952.313 Final approval determination.
(a) In accordance with section 18(e) of the Act and procedures in 29
CFR part 1902, and after a determination that the State met the ``fully
effective'' compliance staffing benchmarks established in response to a
Court Order in AFL-CIO v. Marshall, (CA 74-406), and was satisfactorily
providing reports to OSHA through participation in the Federal-State
Unified Management Information System, the Assistant Secretary evaluated
actual operations under the Hawaii State plan for a period of at least
one year following certification of completion of developmental steps
(May 9, 1978, 43 FR 19849). Based on the Evaluation Report for FY 1982
and available FY 1983 data, and after opportunity for public comment and
an informal public hearing held on October 27, 1983, in Honolulu,
Hawaii, the Assistant Secretary determined that in actual operations,
Hawaii is at least as effective as the Federal program in providing safe
and healthful employment and places of employment
[[Page 92]]
and meets the criteria for final State plan approval in section 18(e) of
the Act and implementing regulations at 29 CFR part 1902. Accordingly,
the Hawaii plan was granted final approval and concurrent Federal
enforcement authority was relinquished under section 18(e) of the Act
effective April 30, 1984.
(b) Except as otherwise noted, the plan which has received final
approval covers all activities of employers and all places of employment
in Hawaii. The plan does not cover maritime employment in the private
sector; Federal government employers and employees; enforcement relating
to any contractors or subcontractors on any Federal establishment where
the land is determined to be exclusive Federal jurisdiction; and the
U.S. Postal Service (USPS), including USPS employees, and contract
employees and contractor-operated facilities engaged in USPS mail
operations.
(c) Hawaii is required: To maintain a State program which is at
least as effective as operations under the Federal program; to submit
plan supplements in accordance with 29 CFR part 1953; to allocate
sufficient safety and health enforcement staff to meet the benchmarks
for State staffing established by the U.S. Department of Labor, or any
revisions to those benchmarks; and, to furnish such reports in such form
as the Assistant Secretary may from time to time require.
[49 FR 19192, May 4, 1984, as amended at 65 FR 36627, June 9, 2000]
Sec. 1952.314 Level of Federal enforcement.
(a) As a result of the Assistant Secretary's determination granting
final approval to the Hawaii plan under section 18(e) of the Act,
effective April 30, 1984, occupational safety and health standards which
have been promulgated under section 6 of the Act do not apply with
respect to issues covered under the Hawaii plan. This determination also
relinquishes concurrent Federal OSHA authority to issue citations for
violation of such standards under sections 5(a)(2) and 9 of the Act; to
conduct inspections and investigations under section 8 (except those
necessary to conduct evaluation of the plan under section 18(f), and
other inspections, investigations or proceedings necessary to carry out
Federal responsibilities not specifically preempted by section 18(e));
to conduct enforcement proceedings in contested cases under section 10;
to institute proceedings to correct imminent dangers under section 13;
and to propose civil penalties or initiate criminal proceedings for
violations of the Federal Act under section 17. The Assistant Secretary
may retain jurisdiction under the above provisions in any proceeding
commenced under section 9 or 10 before the effective date of the 18(e)
determination.
(b) In accordance with section 18(e), final approval relinquishes
Federal OSHA authority only with regard to occupational safety and
health issues covered by the Hawaii plan. OSHA retains full authority
over issues which are not subject to State enforcement under the plan.
Thus, Federal OSHA retains its authority relative to safety and health
in private sector maritime activities and will continue to enforce all
provisions of the Act, rules or orders, and all Federal standards,
current or future, specifically directed to maritime employment (29 CFR
Part 1915, shipyard employment; Part 1917, marine terminals; Part 1918,
longshoring; Part 1919, gear certification) as well as provisions of
general industry and construction standards (29 CFR Parts 1910 and 1926)
appropriate to hazards found in these employments. Federal jurisdiction
also remains in effect with respect to Federal government employers and
employees, enforcement relating to any contractors or subcontractors on
any Federal establishment where the land is determined to be exclusive
Federal jurisdiction; and the U.S. Postal Service (USPS), including USPS
employees, and contract employees and contractor-operated facilities
engaged in USPS mail operations.
(c) Federal authority under provisions of the Act not listed in
section 18(e) is unaffected by final approval of the plan. Thus, for
example, the Assistant Secretary retains his authority under section
11(c) of the Act with regard to complaints alleging discrimination
against employees because of the exercise of any right afforded to the
employee by the Act. The Assistant Secretary also retains his authority
[[Page 93]]
under section 6 of the Act to promulgate, modify or revoke occupational
safety and health standards which address the working conditions of all
employees, including those in States which have received an affirmative
18(e) determination, although such standards may not be Federally
applied. In the event that the State's 18(e) status is subsequently
withdrawn and Federal authority reinstated, all Federal standards,
including any standards promulgated or modified during the 18(e) period,
would be Federally enforceable in that State.
(d) As required by section 18(f) of the Act, OSHA will continue to
monitor the operations of the Hawaii State program to assure that the
provisions of the State plan are substantially complied with and that
the program remains at least as effective as the Federal program.
Failure by the State to comply with its obligations may result in the
revocation of the final determination under section 18(e), resumption of
Federal enforcement, and/or proceedings for withdrawal of plan approval.
[49 FR 19192, May 4, 1984, as amended at 65 FR 36627, June 9, 2000]
Sec. 1952.315 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations:
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue, NW, Room N3700,
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, 71 Stevenson Street, 4th
Floor, San Francisco, California 94105; and
Office of the Director, Hawaii Department of Labor and Industrial
Relations, 830 Punchbowl Street, Honolulu, Hawaii 96831.
[65 FR 36628, June 9, 2000]
Sec. 1952.316 Changes to approved plans.
(a) Legislation. (1) On March 29, 1994, the Assistant Secretary
approved Hawaii's revised statutory penalty levels which are the same as
the revised Federal penalty levels contained in section 17 of the Act as
amended on November 5, 1990.
(2) [Reserved]
(b)(1) Regulations. The State's regulation on the Division of
Occupational Safety and Health's Access to Employee Medical Records, and
amendments to State regulations covering the Labor and Industrial
Relations Appeals Board; General Provisions and Definitions; Recording
and Reporting Occupational Injuries and Illnesses; Inspections,
Citations, and Proposed Penalties; and Variances, promulgated by the
State through March 22, 1991, were approved by the Assistant Secretary
on February 20, 1995.
(2) [Reserved]
(c) Legislation. (1) An amendment to the Hawaii Occupational Safety
and Health Law, enacted in 1987, which expands the type of information
that is protected from disclosure in any discovery or civil action
arising out of enforcement or administration of the law, was approved by
the Assistant Secretary on February 20, 1995.
(2) [Reserved]
(d) Consultation Manual. The State's Consultation Policies and
Procedures Manual was approved by the Assistant Secretary on February
20, 1995.
(e) Occupational Safety and Health Administration Technical Manual.
The State's adoption of the Federal OSHA Technical Manual, through
Change 1, was approved by the Assistant Secretary on February 20, 1995.
(f) Reorganized Plan. The reorganization of the Hawaii plan was
approved by the Assistant Secretary on February 20, 1995.
[59 FR 14556, Mar. 29, 1994 as amended at 60 FR 12419, Mar. 7, 1995]
Subpart Z_Indiana
Sec. 1952.320 Description of the plan as initially approved.
(a)(1) The plan identifies the Indiana Division of Labor as the
State agency designated to implement and carry out the State plan.
Within this structure, the Occupational Safety Standards Commission has
the responsibility to adopt standards and dispose of variance
applications; the Commissioner of Labor is charged with the
administration and enforcement of the Act; and
[[Page 94]]
the Board of Safety Review is to conduct and decide contested cases. The
State Board of Health, Industrial Hygiene Division, pursuant to an
agreement with the Division of Labor will provide laboratory services
and will conduct occupational health inspections as scheduled by the
Division of Labor.
(2) The plan defines the covered occupational safety and health
issues as defined by the Secretary of Labor in 29 CFR 1902.2(c)(1).
Further, Indiana has adopted all Federal safety and health standards
contained in 29 CFR parts 1910 and 1926. The State program is to extend
its protection to all employees in the State including those employed by
it and its political subdivisions.
(b) The plan includes existing enabling legislation and the Indiana
Occupational Safety and Health Act (IC 1971, 22-8-1.1 et seq.) as well
as amendments to this Act which were passed and became effective on May
1, 1973. Under the Act as amended the Division of Labor has authority to
administer and enforce the provisions of the State plan.
(c) The legislation provides procedures for the promulgation of
standards; furnishing information to employees on hazardous and toxic
substances; and procedures for granting temporary and permanent
variances. The law also contains procedures for inspections including
inspections in response to complaints; ensures employer and employee
representatives an opportunity to accompany inspectors and to call
attention to possible violations before, during and after inspections;
protection of employees against discharge or discrimination in terms or
conditions of employment through court suits brought by the Attorney
General at the request of the Commissioner; notice to employees of their
protections and obligations under the State law; prompt restraint of
imminent danger situations; safeguard to protect trade secrets; prompt
notice to employers and employees of alleged violations of standards and
abatement requirements; effective sanctions against employers; and
employer right to review of alleged violations, abatement periods, and
proposed penalties with an opportunity for employee participation and
employee right of review of such abatement periods.
(d) The plan also contains a voluntary compliance program. The State
will conduct seminars, conferences and meetings designed for management,
supervisory personnel, employees and union representatives to transmit
information about its safety and health program. These programs are
specifically designed to cover the following areas: general industrial
safety, construction safety, first aid instruction, supervisory safety
training, hazard recognition, Indiana occupational health and safety
laws, federal occupational safety and health laws, State health and
safety standards, injury and illness reporting procedures requirements,
rights and obligations to employers and employees, enforcement programs.
On-site consultation services will be available for employers upon
request as part of the developmental plan.
(e) Also included in the plan are proposed budgets to be devoted to
it as well as descriptions of the job classifications and personnel who
will be carrying out the program. Further, the plan sets out goals and
provides a time table for bringing it into full conformity with 29 CFR
part 1902.
[39 FR 8612, Mar. 6, 1974, as amended at 51 FR 2488, Jan. 17, 1986]
Sec. 1952.321 Developmental schedule.
(a) Proposed legislative amendments to be introduced in the 1974
session of the State legislature;
(b) Refresher Course for inspectors will be completed by September
1, 1974;
(c) A full complement of 69 inspectors will be hired by the end of
the first year of plan operation; the State will add 10 inspectors for
each of the two succeeding years;
(d) Development of a State employee safety program within nine
months following plan approval;
(e) Establishment of the rules of procedure for on-site
consultations within nine months following plan approval;
(f) Within three years of plan approval all developmental steps will
be fully implemented.
[39 FR 8612, Mar. 6, 1974. Redesignated at 51 FR 2488, Jan. 17, 1986]
[[Page 95]]
Sec. 1952.322 Completion of developmental steps and certification.
(a) In accordance with the requirements of Sec. 1952.10, the
Indiana poster was approved for use until Federal enforcement authority
and standards become inapplicable to issues covered under the plan, by
the Assistant Secretary on March 2, 1976.
(b) In accordance with 29 CFR 1952.323(a), Indiana amended the
Indiana Occupational Safety and Health Act (I.C. 22-8-1.1) in 1975,
1977, and 1978. These amendments were approved by the Assistant
Secretary on September 24, 1981.
(c) In accordance with 29 CFR 1952.323(b), Indiana submitted
documentation outlining training and refresher courses for its
compliance staff on May 19, 1975 and May 4, 1981. This supplement was
approved by the Assistant Secretary on September 24, 1981.
(d) In accordance with 29 CFR 1952.323(c), Indiana submitted
documentation on May 4, 1981, showing that it has substantially met its
compliance staffing commitments by providing for 14 health and 70 safety
compliance officers. This supplement was approved by the Assistant
Secretary on September 24, 1981.
(e) In accordance with 29 CFR 1952.323(d), Indiana developed an
occupational safety and health program for public employees on August
25, 1975, and resubmitted a revised program with implementing
regulations on September 5, 1981. These were approved by the Assistant
Secretary on September 24, 1981.
(f) In accordance with 29 CFR 1952.323(e), Indiana promulgated rules
for on-site consultation on March 7, 1975, which were amended on
September 5, 1981. These regulations were approved by the Assistant
Secretary on September 24, 1981.
(g) Indiana submitted its compliance operations manual on August 7,
1975, which was subsequently revised in 1978 and again on June 4, 1980.
The State submitted a revised Industrial Hygiene manual on July 15,
1981. These manuals, which reflect changes in the Federal program
through 1980 were approved by the Assistant Secretary on September 24,
1981.
(h) Indiana promulgated regulations for inspections, safety orders,
and proposed penalties parallel to 29 CFR part 1903 on January 18, 1977
with amendments dated July 29, 1977 and September 5, 1981. These
regulations were approved by the Assistant Secretary on September 24,
1981.
(i) Indiana promulgated regulations for recordkeeping and reporting
of occupational injuries and illnesses parallel to 29 CFR part 1904 on
January 18, 1977, which were amended on September 10, 1979. The State
also revised its recordkeeping and reporting provisions for the public
sector on September 5, 1981. These regulations were approved by the
Assistant Secretary on September 24, 1981.
(j) Indiana promulgated rules for variances, limitations,
variations, tolerances, and exemptions, parallel to 29 CFR part 1905 on
December 17, 1976, which were revised June 3, 1977 and September 5,
1981. These regulations were approved by the Assistant Secretary on
September 24, 1981.
(k) Indiana adopted rules of procedure for the Board of Safety
Review on September 19, 1976, which were subsequently amended on
September 5, 1981. These regulations were approved by the Assistant
Secretary on September 24, 1981.
(l) Indiana deleted coverage of the maritime and longshoring issues
from its plan on June 9, 1981. This supplement was approved by the
Assistant Secretary on September 24, 1981.
(m) Indiana submitted documentation on establishment of its
Management Information System on May 20, 1974. This supplement was
approved by the Assistant Secretary on September 24, 1981.
(n) In accordance with Sec. 1902.34 of this chapter, the Indiana
occupational safety and health plan was certified, effective October 16,
1981 as having completed all developmental steps specified in the plan
as approved on February 25, 1974 on or before February 25, 1977. This
certification attests to structural completion, but does not render
judgment on adequacy of performance.
[46 FR 49119, 49121, Oct. 6, 1981; 47 FR 28918, July 2, 1982.
Redesignated at 51 FR 2488, Jan. 17, 1986]
[[Page 96]]
Sec. 1952.323 Compliance staffing benchmarks.
Under the terms of the 1978 Court Order in AFL-CIO v. Marshall
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984 Indiana, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised compliance staffing benchmarks
of 47 safety and 23 health compliance officers. After opportunity for
public comment and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements on January 17, 1986.
[51 FR 2488, Jan. 17, 1986]
Sec. 1952.324 Final approval determination.
(a) In accordance with section 18(e) of the Act and procedures in 29
CFR part 1902, and after determination that the State met the ``fully
effective'' compliance staffing benchmarks as revised in 1986 in
response to a Court Order in AFL-CIO v. Marshall (CA 74-406), and was
satisfactorily providing reports to OSHA through participation in the
Federal-State Integrated Management Information System, the Assistant
Secretary evaluated actual operations under the Indiana State plan for a
period of at least one year following certification of completion of
developmental steps (46 FR 49119). Based on the 18(e) Evaluation Report
for the period of March 1984 through December 1985, and after
opportunity for public comment, the Assistant Secretary determined that
in operation the State of Indiana's occupational safety and health
program is at least as effective as the Federal program in providing
safe and healthful employment and places of employment and meets the
criteria for final State plan approval in section 18(e) of the Act and
implementing regulations at 29 CFR part 1902. Accordingly, the Indiana
plan was granted final approval, and concurrent Federal enforcement
authority was relinquished under section 18(e) of the Act effective
September 26, 1986.
(b) Except as otherwise noted, the plan which has received final
approval covers all activities of employers and all places of employment
in Indiana. The plan does not cover maritime employment in the private
sector; Federal government employers and employees; the U.S. Postal
Service (USPS), including USPS employees, and contract employees and
contractor-operated facilities engaged in USPS mail operations; the
enforcement of the field sanitation standard, 29 CFR 1928.110, and the
enforcement of the temporary labor camps standard, 29 CFR 1910.142, with
respect to any agricultural establishment where employees are engaged in
``agricultural employment'' within the meaning of the Migrant and
Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1802(3),
regardless of the number of employees, including employees engaged in
hand packing of produce into containers, whether done on the ground, on
a moving machine, or in a temporary packing shed, except that Indiana
retains enforcement responsibility over agricultural temporary labor
camps for employees engaged in egg, poultry, or red meat production, or
the post-harvest processing of agricultural or horticultural
commodities.
(c) Indiana is required to maintain a State program which is at
least as effective as operations under the Federal program; to submit
plan supplements in accordance with 29 CFR part 1953; to allocate
sufficient safety and health enforcement staff to meet the benchmarks
for State staffing established by the U.S. Department of Labor, or any
revisions to those benchmarks; and, to furnish such reports in such form
as the Assistant Secretary may from time to time require.
[51 FR 34215, Sept. 26, 1986, as amended at 62 FR 2564, Jan. 17, 1997;
65 FR 36628, June 9, 2000]
Sec. 1952.325 Level of Federal enforcement.
(a) As a result of the Assistant Secretary's determination granting
final approval to the Indiana plan under section 18(e) of the Act,
effective September 26, 1986, occupational safety and health standards
which have been promulgated under section 6 of the Act
[[Page 97]]
do not apply with respect to issues covered under the Indiana plan. This
determination also relinquishes concurrent Federal OSHA authority to
issue citations for violations of such standards under sections 5 (a)(2)
and 9 of the Act; to conduct inspections and investigations under
section 8 (except those necessary to conduct evaluation of the plan
under section 18(f) and other inspections, investigations, or
proceedings necessary to carry out Federal responsibilities not
specifically preempted by section 18(e)); to conduct enforcement
proceedings in contested cases under section 10; to institute
proceedings to correct imminent dangers under section 13; and to propose
civil penalties or initiate criminal proceedings for violations of the
Federal Act under section 17. The Assistant Secretary retains
jurisdiction under the above provisions in any proceeding commenced
under section 9 or 10 before the effective date of the 18(e)
determination.
(b)(1) In accordance with section 18(e), final approval relinquishes
Federal OSHA authority only with regard to occupational safety and
health issues covered by the Indiana plan. OSHA retains full authority
over issues which are not subject to State enforcement under the plan.
Thus, Federal OSHA retains its authority relative to safety and health
in private sector maritime activities and will continue to enforce all
provisions of the Act, rules or orders, and all Federal standards,
current or future, specifically directed to maritime employment (29 CFR
Part 1915, shipyard employment; Part 1917, marine terminals; Part 1918,
longshoring; Part 1919, gear certification), as well as provisions of
general industry and construction standards (29 CFR Parts 1910 and 1926)
appropriate to hazards found in these employments. Federal jurisdiction
is retained and exercised by the Employment Standards Administration,
U.S. Department of Labor, (Secretary's Order 5-96, dated December 27,
1996) with respect to the field sanitation standard, 29 CFR 1928.110,
and the enforcement of the temporary labor camps standard, 29 CFR
1910.142, in agriculture, as described in Sec. 1952.324(b). Federal
jurisdiction is also retained with respect to Federal government
employers and employees, and the U.S. Postal Service (USPS), including
USPS employees, and contract employees and contractor-operated
facilities engaged in USPS mail operations.
(2) In addition, any hazard, industry, geographical area, operation
or facility over which the State is unable to effectively exercise
jurisdiction for reasons not related to the required performance or
structure of the plan shall be deemed to be an issue not covered by the
plan which has received final approval and shall be subject to Federal
enforcement. Where enforcement jurisdiction is shared between Federal
and State authorities for a particular area, project, or facility, in
the interest of administrative practicability Federal jurisdiction may
be assumed over the entire project or facility. In either of the two
aforementioned circumstances, Federal enforcement may be exercised
immediately upon agreement between Federal OSHA and the State designated
agency.
(c) Federal authority under provisions of the Act not listed in
section 18(e) is unaffected by final approval of the plan. Thus, for
example, the Assistant Secretary retains his authority under section
11(c) of the Act with regard to complaints alleging discrimination
against employees because of the exercise of any right afforded to the
employee by the Act, although such complaints may be referred to the
State for investigation. The Assistant Secretary also retains his
authority under section 6 of the Act to promulgate, modify or revoke
occupational safety and health standards which address the working
conditions of all employees, including those in States which have
received an affirmative 18(e) determination, although such standards may
not be federally applied. In the event that the State's 18(e) status is
subsequently withdrawn and Federal authority reinstated, all Federal
standards, including any standards promulgated or modified during the
18(e) period, would be federally enforceable in that State.
(d) As required by section 18(f) of the Act, OSHA will continue to
monitor the operations of the Indiana State program to assure that the
provisions
[[Page 98]]
of the State plan are substantially complied with and that the program
remains at least as effective as the Federal program. Failure by the
State to comply with its obligations may result in the revocation of the
final determination under section 18(e), resumption of Federal
enforcement, and/or proceedings for withdrawal of plan approval.
[51 FR 34215, Sept. 26, 1986, as amended at 62 FR 2564, Jan. 17, 1997;
65 FR 36628, June 9, 2000]
Sec. 1952.326 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations:
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue, NW, Room N3700,
Washington, DC 20210;
Regional Administrator, Occupational Safety and Health Administration,
U.S. Department of Labor, 230 S. Dearborn Street, 32nd Floor, Room 3244,
Chicago, Illinois 60604; and
Office of the Commissioner, Indiana Department of Labor, State Office
Building, 402 West Washington Street, Room W195, Indianapolis, Indiana
46204.
[65 FR 36628, June 9, 2000]
Sec. 1952.327 Changes to approved plans.
(a) Legislation. (1) On March 29, 1994, the Assistant Secretary
approved Indiana's revised statutory penalty levels which are the same
as the revised Federal penalty levels contained in section 17 of the Act
as amended on November 5, 1990.
(2) [Reserved]
(b) Temporary labor camps/field sanitation. Effective February 3,
1997, the Assistant Secretary approved Indiana's plan amendment, dated
July 9, 1996, relinquishing coverage for the issues of field sanitation
(29 CFR 1928.110) and temporary labor camps (29 CFR 1910.142) in
agriculture (except for agricultural temporary labor camps associated
with egg, poultry or red meat production, or the post-harvest processing
of agricultural or horticultural commodities.) The Employment Standards
Administration, U.S. Department of Labor, has assumed responsibility for
enforcement of these Federal OSHA standards in agriculture in Indiana
pursuant to Secretary of Labor's Order 5-96, dated December 27, 1996.
(c) The Voluntary Protection Program. On October 24, 1996, the
Assistant Secretary approved Indiana's plan supplement which is
generally identical to the Federal Voluntary Protection Program, with
the exception of organizational and position titles.
[59 FR 14556, Mar. 29, 1994, as amended at 61 FR 55099, Oct. 24, 1996;
62 FR 2564, Jan. 17, 1997]
Subpart AA [Reserved]
Subpart BB_Wyoming
Sec. 1952.340 Description of the plan as initially approved.
(a) The plan identifies the Wyoming Occupational Health and Safety
Commission as the agency to be responsible for administering the plan
throughout the State. The Commission will be responsible for
promulgating and enforcing occupational safety and health standards and
deciding contested cases, subject to judicial review.
(b) The State program will protect all employees within the State,
including those employed by the State and its political subdivisions.
Public employees are to be granted the same protections as are afforded
employees in the private sector. The State plan does not cover employees
of the Federal government or those employees whose working conditions
are regulated by Federal agencies other than the U.S. Department of
Labor.
(c) The Wyoming Occupational Health and Safety Act gives the State
agency full authority to administer and to enforce all laws, rules, and
orders protecting employee safety and health in all places of employment
in the State. The legislation provides employer and employee
representatives an opportunity to accompany inspectors before or during
the physical inspection of any workplace for the purpose of aiding such
inspection; adequate safeguards to protect trade secrets; effective
sanctions against employers; protection of employees against discharge
or discrimination; procedures for prompt restraint or elimination of
[[Page 99]]
imminent danger situations; the right to review by employers and
employees of alleged violations, abatement periods and proposed
penalties; and prompt notice to employers and employees of alleged
violations of standards and abatement requirements.
(d) Administrative regulations include procedures for permanent and
temporary variances; notice to employees or their representatives when
no compliance action is taken as a result of a complaint, including
procedures for informal review; information to employees on hazards,
precautions, symptoms and emergency treatment; and training and
education programs for employers and employees, including an on-site
consultation program consistent with the criteria set out in the
Washington Plan decision (38 FR 2421).
(e) The State intends to promulgate Federal standards covering all
of the issues contained in parts 1910 and 1926 of this chapter but will
not cover those found in parts 1915, 1916, 1917, and 1918 of this
chapter (ship repairing, ship building, ship breaking, and long shor
ing). The State also plans to adopt additional vertical standards
relating to oil well drilling and servicing not provided by the Federal
program. Future Federal standards shall be prom ul gat ed by the State
within six months after prom ul ga tion by the Secretary of Labor. In
the case of product standards the State has provided assurances that any
State product standards will be required by compelling local conditions
and will not unduly burden in ter state commerce.
(f) The plan sets out goals and provides a timetable for bringing it
into full conformity with part 1902 of this chapter. All personnel
employed to carry out the plan are to be hired under the Wyoming
Personnel Merit System which conforms to standards established by the
United States Civil Service Commission. The plan also contains a
detailed description of the resources that are to be devoted to it.
[39 FR 15395, May 3, 1974, as amended at 50 FR 26558, June 27, 1985]
Sec. 1952.341 Developmental schedule.
(a) Adoption of Federal standards as State standards by February
1975.
(b) Administrative regulations for recordkeeping and reporting, var
i anc es, posting requirements, employee complaint procedures,
inspections under the Act, employee exposure to toxic materials,
providing information to employees on their exposure to hazards,
personal protective equipment, medical examinations, and monitoring,
safeguarding trade secrets, administrative review of citations, proposed
penalties, and abatement periods, to become effective by June 1, 1974.
(c) Amendments to the Wyoming Administrative Procedure Act to be
submitted to the State Legislature January 1975 and to become effective
by May 1, 1975.
(d) Management Information System to be completed August 1, 1974.
(e) Merit staffing for administration of the program to be completed
by August 15, 1974.
(f) Amendments to the State's Fair Employment Practices Act to be
submitted to the State Legislature which convenes January 14, 1975.
[39 FR 15395, May 3, 1974. Redesignated at 50 FR 26558, June 27, 1985]
Sec. 1952.342 Completion of developmental steps and certification.
(a) In accordance with Sec. 1952.343(a) the State adopted Federal
standards covering all the issues contained in 29 CFR parts 1910
subparts D through S, and 1926 (The State will not cover parts 1915,
1916, 1917, and 1918). (40 FR 8948, Mar. 4, 1975; 41 FR 26767, June 29,
1976.)
(b) In accordance with the requirements of 29 CFR 1952.10 the
Wyoming posters for private and public employees were approved by the
Assistant Secretary on July 14, 1976.
(c) In accordance with Sec. 1952.343(d), Wyoming has developed and
implemented a Management Information System.
(d) The State plan has been amended to include an Affirmative Action
Plan outlining the State's policy of equal employment opportunity.
(e) Guidelines and procedures for implementing the State's safety
and health program for public employees were approved by the Assistant
Secretary on June 1, 1978.
(f) In accordance with Sec. 1952.343(b), Wyoming has promulgated
its rules of
[[Page 100]]
practice and procedure which were approved by the Assistant Secretary on
December 11, 1980.
(g) Legislation revising the enabling law to provide for civil
enforcement of safety and health violations and revised regulations
establishing procedures for review of enforcement actions was approved
by the Assistant Secretary on December 19, 1980. (45 FR 83483)
(h) The State has met its plan commitment for hiring enforcement
staff under an approved merit system for administration of its health
and safety program pursuant to a July 3, 1980 memo from Don Owsley,
Administrator of the Wyoming Occupational Health and Safety Department.
(i) As required by 29 CFR 1902.34(b)(3), the personnel operations of
the Wyoming Occupational Health and Safety Department have been found to
be in substantial conformity with the ``Standards for a Merit System of
Personnel Administration'' by the Office of Personnel Management in a
letter dated October 17, 1980.
(j) In accordance with Sec. 1902.34 of this chapter, the Wyoming
occupational safety and health plan was certified, effective December
30, 1980, as having completed all developmental steps specified in the
plan as approved on April 25, 1974, on or before April 25, 1977. This
certification attests to structural completion, but does not render
judgment on adequacy of performance.
[41 FR 28789, July 13, 1976, as amended at 41 FR 30329, July 23, 1976;
42 FR 45907, Sept. 13, 1977; 43 FR 25424, June 13, 1978; 43 FR 34463,
Aug. 4, 1978; 45 FR 83485, Dec. 19, 1980; 45 FR 85740, Dec. 30, 1980; 47
FR 1290, Jan. 12, 1982. Redesignated at 50 FR 26558, June 27, 1985]
Sec. 1952.343 Compliance staffing benchmarks.
Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
Compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984 Wyoming, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised compliance staffing benchmarks
of 6 safety and 2 health compliance officers. After opportunity for
pulbic comment and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements on June 27, 1985.
[50 FR 26558, June 27, 1985]
Sec. 1952.344 Final approval determination.
(a) In accordance with section 18(e) of the Act and procedures in 29
CFR part 1902, and after a determination that the State met the ``fully
effective'' compliance staffing benchmarks as revised in 1984 in
response to a Court Order in AFL-CIO v. Marshall (CA 74-406), and was
satisfactorily providing reports to OSHA through particiption in the
Federal-State Unified Management Information System, the Assistant
Secretary evaluated actual operations under the Wyoming State plan for a
period of at least one year following certification of completion of
developmental steps (45 FR 85739). Based on the 18(e) Evaluation Report
for the period of October 1982 through March 1984, and after opportunity
for public comment, the Assistant Secretary determined that in operation
the State of Wyoming's occupational safety health program is at least as
effective as the Federal program in providing safe and healthful
employment and places of employment and meets the criteria for final
State plan approval in section 18(e) of the Act and implementing
regulations at 29 CFR part 1902. Accordingly, the Wyoming plan was
granted final approval and concurrent Federal enforcement authority was
relinquished under section 18(e) of the Act effective June 27, 1985.
(b) Except as otherwise noted, the plan which has received final
approval covers all activities of employers and all places of employment
in Wyoming. The plan does not cover private sector maritime employment;
employment on the Warren Air Force Base; Federal government employers
and employees; the U.S. Postal Service (USPS), including USPS employees,
and contract employees and contractor-operated facilities engaged in
USPS mail operations; the enforcement of the field sanitation standard,
29 CFR 1928.110, and the enforcement of the temporary labor camps
standard, 29 CFR 1910.142, with
[[Page 101]]
respect to any agricultural establishment where employees are engaged in
``agricultural employment'' within the meaning of the Migrant and
Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1802(3),
regardless of the number of employees, including employees engaged in
hand packing of produce into containers, whether done on the ground, on
a moving machine, or in a temporary packing shed, except that Wyoming
retains enforcement responsibility over agricultural temporary labor
camps for employees engaged in egg, poultry, or red meat production, or
the post-harvest processing of agricultural or horticultural
commodities.
(c) Wyoming is required to maintain a State program which is at
least as effective as operations under the Federal program; to submit
plan supplements in accordance with 29 CFR part 1953; to allocate
sufficient safety and health enforcement staff to meet the benchmarks
for State staffing established by the U.S. Department of Labor, or any
revisions to those benchmarks; and, to furnish such reports in such form
as the Assistant Secretary may from time to time require.
[50 FR 26558, June 27, 1985, as amended at 62 FR 2564, Jan. 17, 1997; 65
FR 36628, June 9, 2000]
Sec. 1952.345 Level of Federal enforcement.
(a) As a result of the Assistant Secretary's determination granting
final approval of the Wyoming plan under section 18(e) of the Act,
effective June 27, 1985, occupational safety and health standards which
have been promulgated under section 6 of the Act do not apply with
respect to issues covered under the Wyoming plan. This determination
also relinquishes concurrent Federal OSHA authority to issue citations
for violations of such standards under sections 5(a)(2) and 9 of the
Act; to conduct inspections and investigations under section 8 (except
those necessary to conduct evaluation of the plan under section 18(f)
and other inspections, investigations, or proceedings necessary to carry
out Federal responsibilities not specifically preempted by section
18(e)); to conduct enforcement proceedings in contested cases under
section 10; to institute proceedings to correct imminent dangers under
section 13; and to propose civil penalties or initiate criminal
proceedings for violations of the Federal Act under section 17. The
Assistant Secretary retains jurisdiction under the above provisions in
any proceeding commenced under section 9 or 10 before the effective date
of the 18(e) determination.
(b)(1) In accordance with section 18(e), final approval relinquishes
Federal OSHA authority only with regard to occupational safety and
health issues covered by the Wyoming plan. OSHA retains full authority
over issues which are not subject to State enforcement under the plan.
Thus, Federal OSHA retains its authority relative to safety and health
in private sector maritime activities and will continue to enforce all
provisions of the Act, Federal standards, rules, or orders, and all
Federal standards, current or future, specifically directed to maritime
employment (29 CFR Part 1915, shipyard employment; Part 1917, marine
terminals; Part 1918, longshoring; Part 1919, gear certification) as
well as provisions of general industry and construction standards (29
CFR Parts 1910 and 1926) appropriate to hazards found in these
employments. Federal jurisdiction is retained and exercised by the
Employment Standards Administration, U.S. Department of Labor,
(Secretary's Order 5-96, dated December 27, 1996) with respect to the
field sanitation standard, 29 CFR 1928.110, and the enforcement of the
temporary labor camps standard, 29 CFR 1910.142, in agriculture, as
described in Sec. 1952.344(b). Federal jurisdiction is also retained
for employment at Warren Air Force Base; Federal government employers
and employees; and the U.S. Postal Service (USPS), including USPS
employees, and contract employees and contractor-operated facilities
engaged in USPS mail operations.
(2) In addition, any hazard, industry, geographical area, operation
or facility over which the State is unable to effectively exercise
jurisdiction for reasons not related to the required performance or
structure of the plan shall be deemed to be an issue not covered by the
finally approved plan, and shall be subject to Federal enforcement.
Where
[[Page 102]]
enforcement jurisdiction is shared between Federal and State authorities
for a particular area, project, or facility, in the interest of
administrative practicability, Federal jurisdiction may be assumed over
the entire project or facility. In either of the two aforementioned
circumstances, Federal enforcement may be exercised immediately upon
agreement between Federal and State OSHA.
(c) Federal authority under provisions of the Act not listed in
section 18(e) is unaffected by final approval of the plan. Thus, for
example, the Assistant Secretary retains his authority under section
11(c) of the Act with regard to complaints alleging discrimination
against employees because of the exercise of any right afforded to the
employee by the Act, although such complaints may be referred to the
State for investigation. The Assistant Secretary also retains his
authority under section 6 of the Act to promulgate, modify or revoke
occupational safety and health standards which address the working
conditions of all employees, including those in States which have
received an affirmative 18(e) determination, although such standards may
not be Federally applied. In the event that the State's section 18(e)
status is subsequently withdrawn and Federal authority reinstated, all
Federal standards, including any standards promulgated or modified
during the 18(e) period, would be Federally enforceable in that State.
(d) As required by section 18(f) of the Act, OSHA will continue to
monitor the operations of the Wyoming State program to assure that the
provisions of the State plan are substantially complied with and that
the program remains at least as effective as the Federal program.
Failure by the State to comply with its obligations may result in the
revocation of the final determination under section 18(e), resumption of
Federal enforcement, and/or proceedings for withdrawal of plan approval.
[50 FR 26559, June 27, 1985, as amended at 62 FR 2565, Jan. 17, 1997; 65
FR 36628, June 9, 2000]
Sec. 1952.346 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations:
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue, NW, Room N3700,
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, 1999 Broadway Suite 1690,
Denver, Colorado 80202-5716; and
Office of the Assistant Administrator, Worker's Safety and Compensation
Division, Wyoming Department of Employment, Herschler Building, 2nd
Floor East, 122 West 25th Street, Cheyenne, Wyoming 82002.
[65 FR 36629, June 9, 2000]
Sec. 1952.347 Changes to approved plans.
In accordance with part 1953 of this chapter, the following Wyoming
plan changes were approved by the Assistant Secretary:
(a) Legislation. (1) The State submitted amendments to its
Occupational Health and Safety Act (Laws 1983, chapter 172), which
became effective on May 27, 1983, modifying the powers and duties of the
Occupational Health and Safety Commission, abolishing the powers of the
review board and Commission to hear contested cases and establishing an
independent hearing officer to hear contested cases, providing
procedures for hearings and appeals whereby the Commission makes final
administrative decisions in contested cases and the party adversely
affected may appeal to the District Court, making penalties for posting
violations discretionary (although the State guidelines on penalties for
posting violations parallel OSHA's and are set forth in the Wyoming
Operations Manual), requiring written notification to employers of their
right to refuse entry, and creating the Department of Occupational
Health and Safety. The Assistant Secretary approved these amendments on
February 27, 1989.
(2) On March 29, 1994, the Assistant Secretary approved Wyoming's
revised statutory penalty levels which are the
[[Page 103]]
same as the revised Federal penalty levels contained in section 17 of
the Act as amended on November 5, 1990.
(b) Regulations. (1) The State submitted amendments to its Rules of
Practice and Procedure pertaining to contested cases, hearings,
discrimination, and petitions for modification of abatement; and making
the regulations consistent with other statutory changes made to its
Occupational Health and Safety Act which became effective on September
6, 1984, except amendment to Chapter IV, Enforcement which became
effective on March 28, 1985. The Assistant Secretary approved these
amendments on February 27, 1989.
(2) [Reserved]
(c) The Voluntary Protection Program. On October 24, 1996, the
Assistant Secretary approved Wyoming's plan supplement which is
generally identical to the Federal Voluntary Protection Program, with
the exception of organizational and position titles.
(d) Temporary labor camps/field sanitation. Effective February 3,
1997, the Assistant Secretary approved Wyoming's plan amendment, dated
July 19, 1996, relinquishing coverage for the issues of field sanitation
(29 CFR 1928.110) and temporary labor camps (29 CFR 1910.142) in
agriculture (except for agricultural temporary labor camps associated
with egg, poultry or red meat production, or the post-harvest processing
of agricultural or horticultural commodities.) The Employment Standards
Administration, U.S. Department of Labor, has assumed responsibility for
enforcement of these Federal OSHA standards in agriculture in Wyoming
pursuant to Secretary of Labor's Order 5-96, dated December 27, 1996.
[54 FR 9045, Mar. 3, 1989, as amended at 59 FR 14556, Mar. 29, 1994; 61
FR 55099, Oct. 24, 1996; 62 FR 2565, Jan. 17, 1997]
Subpart CC_Arizona
Sec. 1952.350 Description of the plan as initially approved.
(a)(1) The plan identifies the Arizona Industrial Commission,
Division of Occupational Safety and Health, as the State agency
designated to administer the plan throughout the State. It adopts the
definition of occupational safety and health issues expressed in Sec.
1902.2(c)(1) of this chapter. The State intends to adopt all Federal
standards except those found in 29 CFR parts 1915, 1916, 1917 and 1918
(ship repairing, shipbuilding, shipbreaking, and long shor ing) and
those sub parts of parts 1910 and 1926 pertaining to industries which
are not applicable to Arizona. In addition, the State intends to enforce
elevator (ANSI) and boiler pressure vessel (ASME) standards for which
there are no Federal coun ter parts.
(2) The plan provides a description of personnel employed under a
merit system; the coverage of employees of political subdivisions;
procedures for the development and promulgation of standards, including
standards for the protection of employees against new and unforeseen
hazards; and procedures for the prompt restraint or elimination of
imminent danger situations.
(b)(1) The plan includes legislation enacted by the Arizona
Legislature during its 1974 legislative session amending title 23,
article 10 of the Arizona Revised Statutes to bring them into conformity
with the requirements of part 1902 of this chapter. Under the
legislation the Industrial Commission will have full authority to
enforce and administer laws respecting the safety and health of
employees in all workplaces of the State.
(2) The legislation is intended, among other things, to assure
inspections in response to employee complaints; give employer and
employee representatives an opportunity to accompany inspectors in order
to aid inspections; notification of employees or their representatives
when no compliance action is taken as a result of alleged violations;
notification of employees of their protections and obligations;
protection of employees against discharge or discrimination in terms and
conditions of employment; adequate safeguards to protect trade secrets;
sanctions against employers for violations of standards and orders;
employer right of review to an Occupational Safety and Health Review
Board and then the courts, and employee participation in review
proceedings. The plan also proposes a program of voluntary compliance by
employers and employees, including a provision for on-site consultation.
The
[[Page 104]]
State's consultation program should not detract from its enforcement
program and the State has given assurances that it will meet the
conditions set forth in the Washington Decision (38 FR 2421, January 26,
1973).
(c) The Arizona Plan includes the following documents as of the date
of approval:
(1) The plan description documents, in two volumes.
(2) A copy of the enabling legislation as amended and enacted by the
State Legislature in its 1974 Session.
(3) Letters from Donald G. Wiseman, Director of the Division of
Occupational Safety and Health of the Arizona Industrial Commission to
Barry J. White, Associate Assistant Secretary for Regional Programs on
October 15, 18, and 24, 1974 submitting information, clarifications, and
revisions on several issues raised during the review process, including
proposals to be submitted to the Arizona Legislature during its 1975
Session.
[39 FR 39038, Nov. 5, 1974, as amended at 50 FR 25571, June 20, 1985]
Sec. 1952.351 Developmental schedule.
The Arizona State plan is developmental. The following is the
developmental schedule as provided by the plan:
(a) Development of a complete management information and control
system by July 1, 1976.
(b) The formulation and approval of inter-agency agreements with the
Arizona Atomic Energy Commission, the State Health Department and the
Arizona Corporation Commission by March 1, 1975.
(c) Promulgation of variance regulations by July 1, 1977.
(d) The promulgation of recordkeeping regulations by March 1, 1975,
but full implementation of these regulations will not be until July 1,
1976.
(e) The submission of legislative amendments to the Arizona
Legislature during its 1977 Session.
[39 FR 39038, Nov. 5, 1974, as amended at 40 FR 11873, Mar. 14, 1975; 41
FR 56315, Dec. 28, 1976. Redesignated at 50 FR 25571, June 20, 1985]
Sec. 1952.352 Completion of developmental steps and certification.
(a) Implementation of the Arizona occupational safety and health
program began on March 1, 1975.
(b) Inter-agency agreements between the Arizona Industrial
Commission and the Arizona Department of Health Services were finalized
on November 7, 1974, and March 20, 1975.
(c) Regulations concerning inspections, citations and proposed
penalties and the Rules of Procedure for contests before the Governor's
Review Board were promulgated on February 28, 1975.
(d) Recordkeeping and reporting regulations were promulgated on
March 1, 1975; however, these regulations will not be applicable to
public employers until January 1, 1977.
(e) The universe file system for the inspections scheduling system
was completed and implemented on March 12, 1976.
(f) An interagency agreement was entered into between the
Corporation Commission of Arizona and the Industrial Commission on May
7, 1976 and became effective May 10, 1076.
(g) In accordance with the requirements of Sec. 1952.10, the
Arizona State poster was approved by the Assistant Secretary on July 22,
1976.
(h) Arizona occupational safety and health standards comparable to
Federal standards in effect as of July 28, 1974, were promulgated on
February 28, 1975, and were approved by the Regional Administrator
effective August 6, 1976.
(i) In accordance with Sec. 1902.34 of this chapter, the Arizona
occupational safety and health plan was certified, effective September
18, 1981 as having completed all developmental steps specified in the
plan as approved on October 29, 1974, on or before November 1, 1977.
This certification attests to structural completion, but does not render
judgment on adequacy of performance.
(j) Regulations concerning discrimination complaints were
promulgated on September 22, 1977, and were approved by the Assistant
Secretary on November 13, 1980.
(k) Legislative amendments required to bring the Arizona
occupational safety and health law (Arizona Revised Statutes, Chapter
23) into conformity
[[Page 105]]
with Federal requirements were enacted effective August 27, 1977.
[41 FR 31813, July 30, 1976, as amended at 41 FR 34251, Aug. 13, 1976;
41 FR 56316, Dec. 28, 1976; 46 FR 20164, Apr. 3, 1981; 46 FR 32022, June
19, 1981; 46 FR 46322, Sept. 18, 1981. Redesignated at 50 FR 25571, June
20, 1985]
Sec. 1952.353 Compliance staffing benchmarks.
Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984, Arizona in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised compliance staffing benchmarks
of 9 safety and 6 health compliance officers. After opportunity for
public comment and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements on June 20, 1985.
[50 FR 25571, June 20, 1985]
Sec. 1952.354 Final approval determination.
(a) In accordance with section 18(e) of the Act and procedures in 29
CFR part 1902, and after a determination that the State met the ``fully
effective'' compliance staffing benchmarks as revised in 1984 in
response to a Court Order in AFL-CIO v. Marshall, (CA 74-406), and was
satisfactorily providing reports to OSHA through participation in the
Federal-State Unified Management Information System, the Assistant
Secretary evaluated actual operations under the State plan for a period
of at least one year following certification of completion of
developmental steps (46 FR 46320). Based on the 18(e) Evaluation Report
(October 1982-March 1984) and after opportunity for public comment, the
Assistant Secretary determined that, in operation, the State of
Arizona's occupational safety and health program is at least as
effective as the Federal program in providing safe and healthful
employment and places of employment and meets the criteria for final
State plan approval in section 18(e) of the Act and implementing
regulations at 29 CFR part 1902. Accordingly, the Arizona plan was
granted final approval and concurrent Federal enforcement authority was
relinquished under section 18(e) of the Act effective June 20, 1985.
(b) Except as otherwise noted, the plan which has received final
approval covers all activities of employers and all places of employment
in Arizona. The plan does not cover private sector maritime employment;
Federal government employers and employees; enforcement relating to any
contractors or subcontractors on any Federal establishment where the
land is determined to be exclusive Federal jurisdiction; the U.S. Postal
Service (USPS), including USPS employees, and contract employees and
contractor-operated facilities engaged in USPS mail operations; copper
smelters; concrete and asphalt batch plants that are physically
connected to a mine or so interdependent with a mine as to form one
integral enterprise; and Indian reservations.
(c) Arizona is required to maintain a State program which is at
least as effective as operations under the Federal program; to submit
plan supplements in accordance with 29 CFR part 1953; to allocate
sufficient safety and health enforcement staff to meet the benchmarks
for State staffing established by the U.S. Department of Labor, or any
revision to those benchmarks; and, to furnish such reports in such form
as the Assistant Secretary may from time to time require.
[50 FR 25571, June 20, 1985, as amended at 63 FR 53281, Oct. 5, 1998; 65
FR 36629, June 9, 2000]
Sec. 1952.355 Level of Federal enforcement.
(a) As a result of the Assistant Secretary's determination granting
final approval of the Arizona plan under section 18(e) of the Act,
effective June 20, 1985, occupational safety and health standards which
have been promulgated under section 6 of the Act do not apply with
respect to issues covered under the Arizona plan. This determination
also relinquishes concurrent Federal OSHA authority to issue citations
for violation of such standards under sections 5(a)(2) and 9 of the Act;
[[Page 106]]
to conduct inspections and investigations under section 8 (except those
necessary to conduct evaluation of the plan under section 18(f) and
other inspections, investigations, or proceedings necessary to carry out
Federal responsibilities not specifically preempted by section 18(e));
to conduct enforcement proceedings in contested cases under section 10;
to institute proceedings to correct imminent dangers under section 13;
and to propose civil penalties or initiate criminal proceedings for
violations of the Federal Act under section 17. The Assistant Secretary
retains jurisdiction under the above provisions in any proceeding
commenced under section 9 or 10 before the effective date of the 18(e)
determination.
(b)(1) In accordance with section 18(e), final approval relinquishes
Federal OSHA authority only with regard to occupational safety and
health issues covered by the Arizona plan. OSHA retains full authority
over issues which are not subject to State enforcement under the plan.
Thus, Federal OSHA retains its authority relative to safety and health
in private sector maritime activities and will continue to enforce all
provisions of the Act, rules or orders, and all Federal standards,
current or future, specifically directed to maritime employment (29 CFR
Part 1915, shipyard employment; Part 1917, marine terminals; Part 1918,
longshoring; Part 1919, gear certification) as well as provisions of
general industry and construction standards (29 CFR Parts 1910 and 1926)
appropriate to hazards found in these employments. Federal jurisdiction
is also retained with respect to Federal government employers and
employees; enforcement relating to any contractors or subcontractors on
any Federal establishment where the land is determined to be exclusive
Federal jurisdiction; the U.S. Postal Service (USPS), including USPS
employees, and contract employees and contractor-operated facilities
engaged in USPS mail operations; in copper smelters; in concrete and
asphalt batch plants which are physically connected to a mine or so
interdependent with the mine as to form one integral enterprise; and
within Indian reservations.
(2) In addition, any hazard, industry, geographical area, operation
or facility over which the State is unable to effectively exercise
jurisdiction for reasons not related to the required performance or
structure of the plan shall be deemed to be an issue not covered by the
finally approved plan, and shall be subject to Federal enforcement.
Where enforcement jurisdiction is shared between Federal and State
authorities for a particular area, project, or facility, in the interest
of administrative practicability, Federal jurisdiction may be assumed
over the entire project or facility. In either of the two aforementioned
circumstances, Federal enforcement may be exercised immediately upon
agreement between Federal and State OSHA.
(c) Federal authority under provisions of the Act not listed in
section 18(e) is unaffected by final approval of the plan. Thus, for
example, the Assistant Secretary retains his authority under section
11(c) of the Act with regard to complaints alleging discrimination
against employees because of the exercise of any right afforded to the
employee by the Act, although such complaints may be referred to the
State for investigation. The Assistant Secretary also retains his
authority under section 6 of the Act to promulgate, modify or revoke
occupational safety and health standards which address the working
conditions of all employees, including those in States which have
received an affirmative 18(e) determination, although such standards may
not be Federally applied. In the event that the State's 18(e) status is
subsequently withdrawn and Federal authority reinstated, all Federal
standards, including any standards promulgated or modified during the
18(e) period, would be federally enforceable in that State.
(d) As required by section 18(f) of the Act, OSHA will continue to
monitor the operations of the Arizona State program to assure that the
provisions of the State plan are substantially complied with and that
the program remains at least as effective as the Federal program.
Failure by the State to comply with its obligations may result
[[Page 107]]
in the revocation of the Final determination under section 18(e),
resumption of Federal enforcement, and/or proceedings for withdrawal of
plan approval.
[50 FR 25571, June 20, 1985, as amended at 63 FR 53281, Oct. 5, 1998; 65
FR 36629, June 9, 2000]
Sec. 1952.356 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations:
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue, NW, Room N3700,
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, 71 Stevenson Street, 4th
Floor, San Francisco, California 94105; and
Office of the Director, Industrial Commission of Arizona, 800 W.
Washington, Phoenix, Arizona 85007.
[65 FR 36629, June 9, 2000]
Sec. 1952.357 Changes to approved plans.
(a) The Voluntary Protection Program. On December 30, 1993, the
Assistant Secretary approved Arizona's plan supplement, which is
generally identical to the Federal Voluntary Protection Programs with
the exception that the State's VPP is limited to the Star Program in
general industry, excludes the Merit and Demonstration Programs and
excludes the construction industry.
(b) Legislation. (1) On March 29, 1994, the Assistant Secretary
approved Arizona's revised statutory penalty levels which are the same
as the revised Federal penalty levels contained in section 17 of the Act
as amended on November 5, 1990.
(2) [Reserved]
[59 FR 2295, Jan. 14, 1994, as amended at 59 FR 14556, Mar. 29, 1994]
Subpart DD_New Mexico
Sec. 1952.360 Description of the plan as initially approved.
(a)(1) The plan identifies the New Mexico Environmental Improvement
Agency, with its subordinate organization, the Occupational and
Radiation Protection Division, as the State agency designated to
administer the plan throughout the State. It adopts the definition of
occupational safety and health issues expressed in Sec. 1909.2(c)(1) of
this chapter. The State has adopted the Federal Field Operations Manual
and all the Federal standards except those found in 29 CFR parts 1915,
1916, 1917, and 1918 (ship repairing, shipbuilding, shipbreaking, and
longshoring). In addition, the Occupational and Radiation Protection
Division will be enforcing State standards under the Radiation
Protection Act (chapter 284, Laws of 1971, 12-9-1 through 12-9-11, New
Mexico Statutes Annotated). However, since this Act provides protection
to the general public, in the event of conflict between Radiation
Protection Act standards and occupational safety and health standards,
employees will receive the protection provided under the more stringent
regulation.
(2) The plan provides a description of personnel employed under a
merit system; the coverage of employees of political subdivisions;
procedures for the development and promulgation of standards, including
standards for the protection of employees against new and unforeseen
hazards; and procedures for the prompt restraint of imminent danger
situations.
(b)(1) The plan includes legislation enacted by the New Mexico
Legislature during its 1975 legislative session amending chapter 63,
Laws of 1972, 59-14-1 through 59-14-23 of the New Mexico Statutes
Annotated to bring them into conformity with the requirements of part
1902 of this chapter. Under the legislation, the Environmental
Improvement Agency will have full authority to enforce and administer
laws respecting the safety and health of employees in all workplaces of
the State.
(2) The legislation is intended, among other things, to assure
inspections in response to employee complaints; give employer and
employee representatives an opportunity to accompany inspectors in order
to aid inspections; notify employees of their protections and
obligations; protect employees against discharge or discrimination in
terms
[[Page 108]]
and conditions of employment; provide adequate safeguards to protect
trade secrets; impose sanctions against employers for violations of
standards and orders; insure employer right of review to an Occupational
Health and Safety Review Commission and then the courts, and employee
participation in the review proceedings. The plan also proposes a
program of voluntary compliance by employers and employees, including a
provision for on-site consultation. The State's consultation program
will not detract from its enforcement program and the State's
consultation program will meet the conditions set forth in the
Washington Decision (38 FR 2421, January 26, 1973).
(c) The New Mexico Plan includes the following documents as of the
date of approval:
(1) The plan description documents, in one volume.
(2) A copy of the enabling legislation as amended by the State
legislature in its 1975 session.
(3) A letter from Aaron Bond, Director of the New Mexico
Environmental Improvement Agency, to Barry J. White, Associate Assistant
Secretary for Regional Programs, dated November 4, 1975, submitting
information, clarification, and revisions on several issues raised
during the review process, including proposals to be submitted to the
New Mexico Legislature prior to the close of its 1977 legislative
session.
[40 FR 57456, Dec. 10, 1975, as amended at 59 FR 42496, Aug. 18, 1994]
Sec. 1952.361 Developmental schedule.
The New Mexico State Plan is developmental. The following is the
developmental schedule as provided by the plan:
(a) Development of a complete and operating management information
and control system by January 1, 1976.
(b) Submission of the State's occupational safety and health poster
for approval by January 31, 1976.
(c) Promulgation of Rules of Procedures for administrative review by
the New Mexico Occupational Health and Safety Review Commission by
January 31, 1976.
(d) Enforcement program to achieve operational status by December 1,
1976.
(e) Amendments to basic legislation to become effective by July 1,
1977.
(f) Public employee program to become operational by July 1, 1977.
[40 FR 57456, Dec. 10, 1975. Redesignated at 59 FR 42496, Aug. 18, 1994]
Sec. 1952.362 Completion of developmental steps and certification.
(a) In accordance with the requirements of Sec. 1952.10, the New
Mexico State poster was approved by the Assistant Secretary on July 2,
1976. A revised State poster reflecting legislative amendments and
procedural changes was submitted on May 10, 1983, and approved by the
Assistant Secretary on October 30, 1984.
(b) In accordance with the intent of 29 CFR 1952.363(e), on December
20, 1977, and June 3, 1983, New Mexico submitted procedural guidelines
for its two-tier contested case procedures in lieu of legislative
amendments. The procedures establish maximum timeframes for completion
of the first level, informal administrative review of contested cases,
and immediate docketing of cases with the New Mexico Occupational Health
and Safety Review Commission. A second 15 day contest period is provided
for employer/employee appeal directly to the Review Commission. The New
Mexico Occupational Health and Safety Act (section 50-9-1 et seq., NMSA
1978) was amended in 1978, 1983 and 1984. These amendments deal with the
imposition of penalties for serious violations by governmental entities;
the private questioning of employees and employers by the Environmental
Improvement Division officials at the worksite; the jurisdiction of the
Environmental Improvement Division over working conditions in copper
smelters; the use of interview statements as evidence in a civil or
enforcement action; and the State's adoption of emergency temporary
standards. These clarifications and legislative amendments were approved
by the Assistant Secretary on October 30, 1984.
(c) In accordance with 29 CFR 1952.363(a), New Mexico submitted
documentation on establishment of its Management Information System on
August 18, 1976, and June 3, 1983. The June 3, 1983, amendment specifies
New
[[Page 109]]
Mexico's participation in OSHA's Unified Management Information System.
These supplements were approved by the Assistant Secretary on October
30, 1984.
(d) In accordance with 29 CFR 1952.363(c), New Mexico promulgated
Review Commission Rules of Procedures on October 1, 1976. On January 11,
1984, New Mexico submitted revised Review Commission Rules of Procedures
which parallel 29 CFR part 2200. The revised rules were approved by the
Assistant Secretary on October 30, 1984.
(e) In accordance with 29 CFR 1952.363(d), New Mexico submitted
documentation on December 20, 1977, showing that its enforcement program
was operational effective June, 1976. The supplement was approved by the
Assistant Secretary on October 30, 1984.
(f) In accordance with 29 CFR 1952.363(f), New Mexico by letter
dated December 20, 1977, submitted a plan supplement regarding its
development of an occupational health and safety program for public
employees in June, 1976. A revision thereto was submitted on February
28, 1980. These supplements were approved by the Assistant Secretary on
October 30, 1984.
(g) New Mexico regulations for recording and reporting occupational
injuries and illnesses parallel to 29 CFR part 1904 which were
originally promulgated on August 8, 1975, were revised on February 19,
1979, June 1, 1981, and October 26, 1983. The revised regulations were
approved by the Assistant Secretary on October 30, 1984.
(h) New Mexico regulations for inspections, citations and proposed
penalties parallel to 29 CFR part 1903 originally promulgated on August
8, 1975, were revised on April 14, 1981; May 10, 1981; May 27, 1981;
June 1, 1981; April 6, 1982; May 11, 1983; June 8, 1983; June 14, 1983;
and April 4, 1984. The revised regulations were approved by the
Assistant Secretary on October 30, 1984.
(i) New Mexico rules of practice for variances, limitations,
variations, tolerances and exemptions parallel to 29 CFR part 1905 which
were originally promulgated on August 8, 1975, were revised on April 14,
1981. Subsequently, on June 18, 1981, and May 11, 1983, the State
submitted amendments and assurances to its Field Operations Manual.
These supplements were approved by the Assistant Secretary on October
30, 1984.
(j) New Mexico promulgated regulations for on-site consultation on
March 7, 1979 and June 1, 1981 with an amendment dated October 17, 1983
and assurances dated April 4, 1984 and July 10, 1984. These supplements
were approved by the Assistant Secretary on October 30, 1984.
(k) New Mexico adopted discrimination provisions parallel to 29 CFR
part 1977 on March 29, 1982, with an amendment dated June 15, 1983.
These supplements were approved by the Assistant Secretary on October
30, 1984.
(l) New Mexico submitted its field operations manual on May 16,
1980, with subsequent amendments dated March 4, 1983; May 11, 1983; May
23, 1983; June 8, 1983; June 16, 1983; June 17, 1983; and June 27, 1983.
The manual reflects changes in the Federal program through March 1983.
On July 25, 1980, with a subsequent amendment dated July 24, 1984, the
State adopted Federal OSHA's Industrial Hygiene Manual. These
supplements were approved by the Assistant Secretary on October 30,
1984.
(m) New Mexico on February 28, 1980, submitted a supplement
containing a revised plan narrative with further revisions dated June
16, 1983; June 21, 1983; June 27, 1983, April 4, 1984, and July 24,
1984. These supplements were approved by the Assistant Secretary on
October 30, 1984.
(n) In accordance with Sec. 1902.34 of this chapter, the New Mexico
Occupational Health and Safety plan was certified effective December 4,
1984, as having completed all developmental steps specified in the plan
as approved on December 4, 1975, on or before December 4, 1978. This
certification attests to structural completion, but does not render
judgment on adequacy of performance.
[49 FR 44205, Nov. 5, 1984, as amended at 49 FR 48918, Dec. 17, 1984.
Redesignated at 59 FR 42497, Aug. 18, 1994]
Sec. 1952.363 Compliance staffing benchmarks.
Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (``benchmarks'')
[[Page 110]]
necessary for a ``fully effective'' enforcement program were required
for each State operating an approved State plan. In May 1992, New Mexico
completed, in conjunction with OSHA, a reassessment of the staffing
levels initially established in 1980 and proposed revised benchmarks of
7 safety and 3 health compliance officers. After opportunity for public
comment and service on the AFL-CIO, the Assistant Secretary approved
these revised staffing requirements on August 11, 1994.
[59 FR 42497, Aug. 18, 1994]
Sec. 1952.364 [Reserved]
Sec. 1952.365 Level of Federal enforcement.
(a) Pursuant to Sec. Sec. 1902.20(b)(1)(iii) and 1954.3 of this
chapter, under which an operational status agreement has been entered
into between OSHA and New Mexico, effective October 5, 1981, and based
on a determination that New Mexico is operational in issues covered by
the New Mexico occupational health and safety plan, discretionary
Federal enforcement authority under section 18(e) of the Act (29 U.S.C.
667(e)) will not be initiated with regard to Federal occupational safety
and health standards in issues covered under 29 CFR parts 1910, 1926 and
1928 except as provided in this section. The U.S. Department of Labor
will continue to exercise authority, among other things, with regard to:
(1) Complaints filed with the U.S. Department of Labor alleging
discrimination under section 11(c) of the Act (29 U.S.C. 660(c));
(2) Enforcement with respect to private sector maritime employment
including 29 CFR parts 1915, 1917, 1918, 1919 (shipyard employment;
marine terminals; longshoring and gear certification), and general
industry and construction standards (29 CFR parts 1910 and 1926)
appropriate to hazards found in these employments, which issues have
been specifically excluded from coverage under the State plan;
(3) Enforcement in situations where the State is refused and is
unable to obtain a warrant or enforce its right of entry;
(4) Enforcement of new Federal standards until the State adopts a
comparable standard;
(5) Enforcement of unique and complex standards as determined by the
Assistant Secretary;
(6) Enforcement in situations when the State is temporarily unable
to exercise its enforcement authority fully or effectively;
(7) Enforcement of occupational safety and health standards at all
Federal and private sector establishments on military facilities and
bases, including but not limited to Kirkland Air Force Base, Fort Bliss
Military Reservation, White Sands Missile Range Military Reservation,
Holloman Air Force Base, Cannon Air Force Base, Fort Wingate Military
Reservation , Fort Bayard Veterans' Hospital, Albuquerque Veterans'
Hospital, Santa Fe National Cemetery;
(8) Enforcement of occuaptional safety and health standards, to the
extent permitted by applicable law, over tribal or private sector
employment within any Indian reservation and lands under the control of
a tribal government;
(9) Enforcement of occupational safety and health standards with
regard to Federal government employers and employees; and the U.S.
Postal Service (USPS), including USPS employees, and contract employees
and contractor-operated facilities engaged in USPS mail operations; and
(10) Investigations and inspections for the purpose of the
evaluation of the New Mexico plan under sections 18(e) and (f) of the
Act (29 U.S. C. 667 (e) and (f)).
(b) The Regional Administrator for Occupational Safety and Health
will make a prompt recommendation for the resumption of the exercise of
Federal enforcement authority under section 18(e) of the Act (29 U.S.C.
667(e)) whenever, and to the degree, necessary to assure occupational
safety and health protection to employees in New Mexico.
[62 FR 49911, Sept. 24, 1997, as amended at 65 FR 36629, June 9, 2000]
Sec. 1952.366 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected
[[Page 111]]
and copied during normal business hours at the following locations:
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue, N.W., Room N3700,
Washington, D.C. 20210;
Office of the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, Room 602, 525 Griffin Street,
Dallas, Texas 75202; and
New Mexico Environment Department, Occupational Safety and Health
Bureau, 1190 St. Francis Drive, Santa Fe, New Mexico 87502.
[59 FR 42497, Aug. 18, 1994]
Sec. 1952.367 Changes to approved plans.
(a) Legislation. (1) On March 29, 1994, the Assistant Secretary
approved New Mexico's revised statutory penalty levels which are the
same as the revised Federal penalty levels contained in section 17 of
the Act as amended on November 5, 1990.
(2) [Reserved]
(b) In accordance with part 1953 of this chapter, New Mexico's State
plan amendment, dated January 3, 1997, excluding coverage of all private
sector employment on Federal military facilities and bases (see Sec.
1952.365), and, to the extent permitted by applicable law, over tribal
or private sector employment within any Indian reservation and lands
under the control of a tribal government, from its State plan was
approved by the Acting Assistant Secretary on September 24, 1997.
[59 FR 14556, Mar. 29, 1994. Redesignated at 59 FR 42496, Aug. 18, 1994,
as amended at 62 FR 49911, Sept. 24, 1997; 67 FR 60129, Sept. 25, 2002]
Subpart EE_Virginia
Sec. 1952.370 Description of the plan as initially approved.
(a) The Virginia Department of Labor and Industry is the agency
responsible for administering the plan and the Virginia Department of
Health is designated as responsible for occupational health matters. The
plan defines the covered occupational safety and health issues as
defined by the Secretary of Labor in 29 CFR 1902.2(c)(1) and all safety
and health standards adopted by the Secretary of Labor, except those
found in 29 CFR parts 1915, 1916, 1917, and 1918 (ship repairing,
shipbuilding, shipbreaking and longshoring), will be enforced by the
State upon approval of the plan by the Assistant Secretary. The State
will retain its existing standard applicable to ionizing radiation. New
Federal standards will be adopted by the Safety and Health Codes
Commission within 6 months after Federal promulgation.
(b)(1) The plan includes enabling legislation passed by the Virginia
legislature in February 1973, and amendments thereto enacted in 1975 and
1976. The Commissioner of the Department of Labor and Industry will have
authority to enforce and adminster laws regarding the safety and health
of employees. Safety inspections will be conducted by the Department of
Labor and Industry whereas health inspections will be conducted by the
Department of Health. The Department of Labor and Industry will issue
citations, set abatement dates, and issue summons and/or warrants for a
civil district court determination of violations and assessment of
proposed penalties for such safety and health violations. Appeals of the
district court's determination shall be to the circuit court sitting
without a jury. Fire safety inspections and enforcement will be provided
by agreement with the State Fire Marshal. The State plan provides for
the coverage of all employees including coverage of public employees
within the Commonwealth with the exception of maritime workers,
employees of the United States, and employees whose working conditions
are regulated by Federal agencies other than the U.S. Department of
Labor under section 4(b)(1) of the Occupational Safety and Health Act of
1970. The Commissioner is authorized to establish a program applicable
to employees of the State and its political subdivisions.
(2) The legislation also insures inspections in response to employee
complaints; right of employer and employee representatives to accompany
inspectors; notification to employees or their representatives when no
compliance action is taken as a result of alleged violations;
notification to employees of their protections and obligations;
protection of employees against
[[Page 112]]
discharge or discrimination in terms and conditions of employment;
adequate safeguards to protect trade secrets; prompt notice to employers
and employees of alleged violations of standards and abatement
requirements; effective sanctions against employers for violations of
rules, regulations, standards and orders; employee right of review in
the State civil courts and employee participation in this judicial
review process. In addition, there is provision for prompt restraint of
imminent danger situations by injunction and ``red-tag'' procedures. The
plan also proposes to develop a program to encourage voluntary
compliance by employers and employees, including provision for onsite
consultation, which program will not detract from its enforcement
program.
(c) The plan sets out goals and provides a timetable for bringing it
into conformity with part 1902 of this chapter at the end of three years
after commencement of operations under the plan. The plan also includes
the State Administrative Process Act. A merit system of personnel
administration will be utilized.
(d) The plan includes the following documents as of the date of
approval:
(1) The plan document and appendices including revised legislation,
submitted June 21, 1976.
(2) Letters from the Department of Labor and Industry dated January
15, March 4, and August 23, 1976, and from the Department of Health
dated August 18, 1976.
[41 FR 42658, Sept. 28, 1976, as amended at 51 FR 2489, Jan. 17, 1986]
Sec. 1952.371 Developmental schedule.
The Virginia plan is developmental. Following is a schedule of major
developmental steps:
(a) Standards identical to the Federal standards will be completely
adopted by January 1, 1978.
(b) A plan for delegation of authority to the State Fire Marshal for
fire standards development and enforcement will be completed by December
31, 1976, with necessary legislative action and program implementation
by July 1, 1978.
(c) State poster(s) informing public and private employees of their
rights and responsibilities will be developed and distributed within 6
months of plan approval.
(d) A voluntary compliance program (including on-site consultation
services) will be initiated within 6 months of plan approval.
(e) Both safety and health conpliance programs will be fully staffed
by FY 1979.
(f) Both safety and health consultation programs will be fully
staffed by FY 1979.
(g) An automated Management Information System, including a court
reporting system, will be developed within 6 months of plan approval.
(h) An Administrative Procedures Manual which will contain State
regulations on standards promulgation, inspections, citations, proposal
of penalties, review procedures, var i anc es, etc., will be developed
within 6 months of plan approval.
(i) A Compliance Manual establishing procedures to be used by safety
and health inspectors and voluntary compliance personnel will be
developed within 6 months of plan approval.
(j) The State is now responsible for enforcement of the State
explosive code. That code will be amended within 6 months of plan
approval to contain only standards identical to OSHA's standards.
(k) Job descriptions for both safety and health personnel will be
reviewed and revised to accurately reflect job functions within 12
months of plan approval.
(l) The Directors of the Industry and Construction Safety Divisions
in the Department of Labor and Industry will be brought under State
merit system coverage by January 1, 1977.
(m) An inspection scheduling system will be developed for the health
program within 6 months of plan approval and for the safety program
within 8 months of plan approval.
(n) A public employee program will be developed and implemented
within 6 months of plan approval.
[41 FR 42658, Sept. 28, 1976, as amended at 42 FR 10989, Feb. 25, 1977.
Redesignated at 51 FR 2489, Jan. 17, 1986]
[[Page 113]]
Sec. 1952.372 Completion of developmental steps and certification.
(a) In accordance with 29 CFR 1952.373(b), Virginia was to develop a
plan for delegation of authority to the State Fire Marshal for fire
standards enforcement. The State has since announced that the authority
for fire standards enforcement will rest with the Department of Labor
and Industry, which has been enforcing fire standards since plan
approval. This action is judged to have sufficiently fulfilled the
commitments of this step.
(b) In accordance with 29 CFR 1952.373(c) and 1952.10. Virginia's
safety and health posters for public and private employers were approved
by the Assistant Secretary on November 13, 1980.
(c) In accordance with 29 CFR 1952.373(d), Virginia initiated a
voluntary compliance program which includes on-site consultation
services on March 15, 1977. (The State subsequently arranged for on-site
consultation activities for the private sector to be covered by an
agreement with the U.S. Department of Labor under section 7(c)(1) of the
Act).
(d) In accordance with 29 CFR 1952.373(f), the State had met its
developmental commitment for the staffing of its on-site consultation
program in the public sector by fiscal year 1979. On-site consultation
in the private sector is covered by a section 7(c)(1) agreement with the
U.S. Department of Labor.
(e) In accordance with the relevant part of 29 CFR 1952.373(g),
Virginia met its developmental commitment of developing and implementing
an automated Management Information System on July 1, 1977.
(f) In accordance with 29 CFR 1952.373(l), the Directors of the
Industry and the Construction Safety Divisions have been placed under
the State merit system as of September 1, 1976.
(g) In accordance with 29 CFR 1952.373(a), Virginia was to
completely adopt standards identical to the Federal standards by January
1, 1978. State standards identical to the Federal standards of 29 CFR
part 1910 (General Industry) and part 1926 (Construction) and as
effective as the Federal standards for ionizing radiation exposure
became effective on April 15, 1977, and were approved by the Regional
Administrator in the Federal Register of March 17, 1978 (43 FR 11274).
State standards identical to the Federal standards in 29 CFR part 1928
(Agriculture) became effective on April 1, 1978, and were approved by
the Regional Administrator in the Federal Register of June 12, 1979 (44
FR 3375). The State's subsequent adoption of standards identical to the
Federal standards for ionizing radiation exposure was approved on August
20, 1982 (47 FR 36485). The State has continued to adopt standards,
amendments and corrections identical to the Federal, as noted in
separate standards approval notices.
(h) In accordance with 29 CFR 1952.373(e), the State met its
developmental commitment for the staffing of its compliance program by
Fiscal Year 1979 with the submission of its Fiscal Year 1979 grant
application on August 11, 1978, which allocated 38 safety and 18 health
compliance officer positions. This supplement was approved by the
Assistant Secretary on October 14, 1983.
(i) In accordance with 29 CFR 1952.373(g), Virginia met its
developmental commitment for the development and implementation of a
system for the reporting of court decisions resulting from the State's
system for the judicial review of contested cases with the submission of
a publication on May 27, 1981, which compiled final orders and decisions
regarding cases contested to the Virginia General District and Circuit
Courts. The State has subsequently submitted other compilations which
are to be published annually. This amendment was approved by the
Assistant Secretary on October 14, 1983.
(j) In accordance with 29 CFR 1952.373(j), Virginia submitted
revised standards for explosives and blasting agents on March 23, 1977,
which were found to be identical to the Federal standards and were
approved by the Regional Administrator in the Federal Register of March
17, 1978 (43 FR 11274).
(k) In accordance with 29 CFR 1952.373(k), the State met its
developmental commitment of reviewing and
[[Page 114]]
revising job descriptions for both safety and health personnel with the
submission of revised job specifications on October 5, 1977. This
supplement was approved by the Assistant Secretary on October 14, 1983.
(l) In accordance with 29 CFR 1952.373(m), Virginia submitted
inspection scheduling systems for its health and safety programs on
September 7 and November 2, 1977, and a revised health scheduling system
on May 9, 1979. The State has subsequently adopted revisions identical
to revisions to the Federal scheduling system for safety as well as
health inspections with submissions dated December 11, 1980, October 30,
1981, and May 28, 1982. These amendments were approved by the Assistant
Secretary on October 14, 1983.
(m) In accordance with 29 CFR 1952.373(h), Virginia submitted an
administrative procedures manual containing State rules and regulations
on standards promulgation, inspections, recordkeeping and reporting of
occupational injuries and illnesses, nondiscrimination, citations,
proposal of penalties, review procedures, var i anc es, etc., on March
31, 1977. The State has sub se quent ly sub mitted revised versions of
and clarifications to the manual by letters dated September 8, 1978, May
26, 1981, November 12, 1982, January 20, 1983, March 16, 1983 and
September 13, 1983 in response to OSHA comments, and these actions are
ad judged to have sufficiently ful filled the commitments of this step.
The Virginia Occupational Safety and Health Administrative Regulations
Manual (which became effective on October 31, 1983 and was clarified by
a letter dated June 13, 1984) was approved by the Assistant Secretary on
August 15, 1984.
(n) In accordance wth 29 CFR 1952.373(i), the State was to develop a
compliance manual establishing procedures to be used by safety and
health compliance officers and voluntary compliance personnel. A
voluntary compliance and training manual was initially submitted by the
State on March 31, 1977 and a completely revised version was submitted
by a letter dated March 21, 1984. The State submitted a compliance
manual for safety and health compliance officers on August 2, 1977. By
letters dated November 20, 1978 and August 2, 1979, Virginia informed
OSHA that it would adopt and implement Federal OSHA's Field Operations
Manual and Industrial Hygiene Field Operations Manual. The State has
adopted subsequent Federal changes to these manuals by letters dated
August 26, 1981, February 9, 1984, and June 18, 1984. On July 30, 1984,
the State submitted a completely revised Field Operations Manual
reflecting changes to the Federal manual through June 1, 1984. In
addition, by a letter dated June 5, 1984, the State indicated its intent
to utilize and adopt the March 30, 1984 Federal Industrial Hygiene
Technical Manual. These supplements were approved by the Assistant
Secretary on August 15, 1984.
(o) In accordance with 29 CFR 1952.373(n), Virginia met its
developmental commitment of developing and implementing an occupational
safety and health program applicable to employees of the State and local
governments. On March 31, 1977, the State submitted rules and
regulations applying Virginia occupational safety and health law and
standards to State, local and municipal governments. These regulations
were subsequently revised and incorporated into the State's
Administrative Regulations Manual as submitted on September 13, 1983.
These supplements were approved by the Assistant Secretary on August 15,
1984.
(p) In accordance with part 1953 of this chapter, Virginia submitted
legislative amendments to Title 40.1 of the Labor Laws of Virginia as
enacted by the Virginia General Assembly of February 6, 1979. These
legislative amendments, which dealt primarily with the Commissioner's
delegation authority, procedures concerning Virginia's system of
judicial review of contested cases, and penalty provisions, were
approved by the Assistant Secretary on August 15, 1984.
(q) In accordance with Sec. 1902.34 of this chapter, the Virginia
occupational safety and health plan was certified effective August 15,
1984 as having completed all developmental steps specified in the plan
as approved on September 23, 1976 on or before September 23, 1979. This
certification attests to structural
[[Page 115]]
completion, but does not render judgment on adequacy of performance.
[45 FR 77003, Nov. 21, 1980, as amended at 48 FR 48823, Oct. 21, 1983;
49 FR 33122 and 33126, Aug. 21, 1984. Redesignated at 51 FR 2489, Jan.
17, 1986; 67 FR 60129, Sept. 25, 2002]
Sec. 1952.373 Compliance staffing benchmarks.
Under the terms of the 1978 Court Order in AFL-CIO v. Marshall
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984 Virginia, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised compliance staffing benchmarks
of 38 safety and 21 health compliance officers. After opportunity for
public comment and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements on January 17, 1986.
[51 FR 2489, Jan. 17, 1986]
Sec. 1952.374 Final approval determination.
(a) In accordance with section 18(e) of the Act and procedures in 29
CFR part 1902, and after determination that the State met the ``fully
effective'' compliance staffing benchmarks as revised in 1984 in
response to a Court Order in AFL-CIO v. Marshall (CA 74-406), and was
satisfactorily providing reports to OSHA through participation in the
Federal-State Integrated Management Information System, the Assistant
Secretary evaluated actual operations under the Virginia State plan for
a period of at least one year following certification of completion of
developmental steps (49 FR 33123). Based on the 18(e) Evaluation Report
for the period of January 1, 1987 through March 31, 1988, and after
opportunity for public comment, the Assistant Secretary determined that
in operation the State of Virginia's occupational safety and health
program is at least as effective as the Federal program in providing
safe and healthful employment and places of employment and meets the
criteria for final State plan approval in section 18(e) of the Act and
implementing regulations at 29 CFR part 1902. Accordingly, the Virginia
plan was granted final approval and concurrent Federal enforcement
authority was relinquished under section 18(e) of the Act effective
November 30, 1988.
(b) Except as otherwise noted, the plan which has received final
approval covers all activities of employers and all places of employment
in Virginia. The plan does not cover private sector maritime employment;
worksites located within Federal military facilities as well as on other
Federal enclaves where civil jurisdiction has been ceded by the State to
the Federal government; Federal government employers and employees; and
the U.S. Postal Service (USPS), including USPS employees, and contract
employees and contractor-operated facilities engaged in USPS mail
operations.
(c) Virginia is required to maintain a State program which is at
least as effective as operations under the Federal program; to submit
plan supplements in accordance with 29 CFR part 1953; to allocate
sufficient safety and health enforcement staff to meet the benchmarks
for State staffing established by the U.S. Department of Labor, or any
revisions to those benchmarks; and, to furnish such reports in such form
as the Assistant Secretary may from time to time require.
[53 FR 48258, Nov. 30, 1988, as amended at 65 FR 36630, June 9, 2000]
Sec. 1952.375 Level of Federal Enforcement.
(a) As a result of the Assistant Secretary's determination granting
final approval to the Virginia plan under section 18(e) of the Act,
effective November 30, 1988, occupational safety and health standards
which have been promulgated under section 6 of the Act do not apply with
respect to issues covered under the Virginia plan. This determination
also relinquishes concurrent Federal OSHA authority to issue citations
for violations of such standards under section 5(a)(2) and 9 of the Act;
to conduct inspections and investigations under section 8 (except those
necessary to conduct evaluation of the plan under section 18(f) and
other inspections, investigations, or proceedings necessary to carry out
Federal responsibilities not specifically
[[Page 116]]
preempted by section 18(e)); to conduct enforcement proceedings in
contested cases under section 10; to institute proceedings to correct
imminent dangers under section 13; and to propose civil penalties or
initiate criminal proceedings for violations of the Federal Act under
section 17. The Assistant Secretary retains jurisdiction under the above
provisions in any proceeding commenced under section 9 or 10 before the
effective date of the 18(e) determination.
(b)(1) In accordance with section 18(e), final approval relinquishes
Federal OSHA authority only with regard to occupational safety and
health issues covered by the Virginia plan. OSHA retains full authority
over issues which are not subject to State enforcement under the plan.
Thus, Federal OSHA retains its authority relative to safety and health
in private sector maritime activities and will continue to enforce all
provisions of the Act, rules or orders, and all Federal standards,
current or future, specifically directed to maritime employment (29 CFR
Part 1915, shipyard employment; Part 1917, marine terminals; Part 1918,
longshoring; Part 1919, gear certification) as well as provisions of
general industry and construction standards (29 CFR Parts 1910 and 1926)
appropriate to hazards found in these employments, and employment at
worksites located within Federal military facilities as well as on other
Federal enclaves where civil jurisdiction has been ceded by the State to
the Federal government. Federal jurisdiction is also retained with
respect to Federal government employers and employees, and the U.S.
Postal Service (USPS), including USPS employees, and contract employees
and contractor-operated facilities engaged in USPS mail operations.
(2) In addition, any hazard, industry, geographical area, operation
or facility over which the State is unable to effectively exercise
jurisdiction for reasons which OSHA determines are not related to the
required performance or structure of the plan shall be deemed to be an
issue not covered by plan which has received final approval, and shall
be subject to Federal enforcement. Where enforcement jurisdiction is
shared between Federal and State authorities for a particular area,
project, or facility, in the interest of administrative practicability
Federal jurisdiction may be assumed over the entire project or facility.
In any of the aforementioned circumstances, Federal enforcement
authority may be exercised after consultation with the State designated
agency.
(c) Federal authority under provisions of the Act not listed in
section 18(e) is unaffected by final approval of the plan. Thus, for
example, the Assistant Secretary retains his authority under section
11(c) of the Act with regard to complaints alleging discrimination
against employees because of the exercise of any right afforded to the
employee by the Act, although such complaints may be referred to the
State for investigation. The Assistant Secretary also retains his
authority under section 6 of the Act to promulgate, modify or revoke
occupational safety and health standards which address the working
conditions of all employees, including those in States which have
received an affirmative 18(e) determination, although such standards may
not be Federally applied. In the event that the State's 18(e) status is
subsequently withdrawn and Federal authority reinstated, all Federal
standards, including any standards promulgated or modified during the
18(e) period, would be Federally enforceable in that State.
(d) As required by section 18(f) of the Act, OSHA will continue to
monitor the operations of the Virginia State program to assure that the
provisions of the State plan are substantially complied with and that
the program remains at least as effective as the Federal program.
Fairlure by the State to comply with its obligations may result in the
revocation of Federal enforcement, and/or proceedings for withdrawal of
plan approval.
[53 FR 48258, Nov. 30, 1988, as amended at 65 FR 36630, June 9, 2000]
Sec. 1952.376 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations:
[[Page 117]]
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue, NW, Room N3700,
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, The Curtis Center, 170 South
Independence Mall West--Suite 740 West, Philadelphia, Pennsylvania
Office of the Commissioner, Virginia Department of Labor and Industry,
Powers-Taylor Building, 13 South 13th Street, Richmond, Virginia 23219.
[65 FR 36630, June 9, 2000]
Sec. 1952.377 Changes to approved plans.
In accordance with part 1953 of this chapter, the following Virginia
plan changes were approved by the Assistant Secretary:
(a) The State submitted legislative amendments related to the
issuance and judicial review of administrative search warrants which
became effective on July 1, 1987. The Assistant Secretary approved these
amendments on 14 September, 1987.
(b) Legislation. (1) On March 29, 1994, the Assistant Secretary
approved Virginia's revised statutory penalty levels which are the same
as the revised Federal penalty levels contained in section 17 of the Act
as amended on November 5, 1990.
[52 FR 35070, Sept. 17, 1987, as amended at 59 FR 14556, Mar. 29, 1994]
Subpart FF_Puerto Rico
Sec. 1952.380 Description of the plan.
(a) The plan designates the Puerto Rico Department of Labor and
Human Resources as the agency responsible for the administration and
enforcement of the plan throughout the Commonwealth. This includes the
responsibility for administration of a public employee program for which
the same enforcement provisions and procedures used for the private
sector will apply, with the exception of penalties. Penalties in the
Commonwealth's Act for the private sector are essentially identical to
those in the Federal Act, and Puerto Rico intends to adopt all Federal
standards. The Commonwealth will exclude from coverage all industries
included within the classifications of Marine Cargo Handling (SIC 4463)
and Shipbuilding and Repairing (SIC 3713), but will adopt and enforce
standards for boilers and elevators and other issues where no Federal
OSHA standards exist. The plan provides that program personnel will be
employed under a merit system and provides for a Management Information
System. It also provides procedures for the development and promulgation
of standards and procedures for the prompt restraint or elimination of
imminent danger situations.
(b) The Puerto Rico Occupational Safety and Health Act was enacted
on July 7, 1975, and approved by the Governor on August 5, 1975. It is
similar in most respect to the Federal Act. The Puerto Rico Act provides
employers the right of administrative review of citations, abatement
requirements, and proposed penalties, and employee review of abatement
dates, by a hearing examiner appointed by the Puerto Rico Secretary of
Labor. The decision by the Secretary may be appealed by the employer or
employees to the civil courts. The plan contains a statement of support
by the Governor and an opinion by the Secretary of Justice that the Act
is consistent with the State's Law and Constitution. Federal procedural
regulations will be incorporated into the Commonwealth's regulations and
the Federal Compliance Manual will be adopted to fit Puerto Rico's Law.
In addition, the Puerto Rico Act requires that a Spanish language
version of OSHA standards be made available within three years of plan
approval.
(c) The Puerto Rico Act provides for, among other things,
inspections in response to employee complaints; an opportunity for
employer and employee representatives to accompany inspectors in order
to aid inspections; notification of employees or their representatives
when no compliance action is taken as a result of a complaint;
notification of employees of their protections and obligations;
protection for employees against discharge or discrimination in terms
and conditions of employment; adequate safeguards to protect trade
secrets; sanctions against employers for violations of standards and
orders; and review of citations by a hearing examiner, with appeal to
the
[[Page 118]]
Secretary of Labor and the Commonwealth's courts.
(d) The plan also proposes a program of voluntary compliance by
employers and employees, including a provision for on-site consultation.
(e) The Puerto Rico Plan includes the following documents as of the
date of approval:
(1) The plan description documents, in two volumes.
(2) A copy of the enabling legislation as enacted on July 7, 1975,
and signed by the Governor on August 5, 1975.
(3) An assurance of separability of the enforcement personnel from
the hearing examiner.
(4) A letter of assurance of the authenticity of the English version
of the Puerto Rico OSHA Act from John Cinque Sacarello, Assistant
Secretary for Occupational Safety and Health, Puerto Rico Department of
Labor, dated December 4, 1975.
[42 FR 43629, Aug. 30, 1977]
Sec. 1952.381 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations:
Office of State Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue, NW, Room N3700,
Washington, DC 20210;
Regional Administrator, Occupational Safety and Health Administration,
U.S. Department of Labor, 201 Varick Street, Room 670, New York, New
York 10014.
Office of the Secretary, Puerto Rico Department of Labor and Human
Resources, Prudencio Rivera Martinez Building, 505 Munoz Rivera Avenue,
Hato Rey, Puerto Rico 00918.
[65 FR 36630, June 9, 2000]
Sec. 1952.382 Level of Federal enforcement.
Pursuant to Sec. 1902.20(b)(1)(iii) and Sec. 1954.3 of this
chapter under which an agreement has been entered into with Puerto Rico,
effective December 8, 1981, and based on a determination that Puerto
Rico is operational in the issues covered by the Puerto Rico
occupational safety and health plan, discretionary Federal enforcement
authority under section 18(e) of the Act (29 U.S.C. 667(e)) will not be
initiated with regard to Federal occupational safety and health
standards in issues covered under 29 CFR Parts 1910 and 1926 except as
provided in this section. The U.S. Department of Labor will continue to
exercise authority, among other things, with regard to: complaints filed
with the U.S. Department of Labor alleging discrimination under section
11(c) of the Act (29 U.S.C. 660(c)); safety and health in private sector
maritime activities and will continue to enforce all provisions of the
Act, rules of orders, and all Federal standards, current or future,
specifically directed to maritime employment (29 CFR Part 1915, shipyard
employment; Part 1917, marine terminals; Part 1918, longshoring; Part
1919, gear certification) as well as provisions of general industry and
construction standards (29 CFR Parts 1910 and 1926) appropriate to
hazards found in these employments; enforcement relating to any
contractors or subcontractors on any Federal establishment where the
State cannot obtain entry; enforcement of new Federal standards until
the State adopts a comparable standard; situations where the State is
refused entry and is unable to obtain a warrant or enforce the right of
entry; enforcement of unique and complex standards as determined by the
Assistant Secretary; situations when the State is temporarily unable to
exercise its enforcement authority fully or effectively; completion of
enforcement actions initiated prior to the effective date of the
agreement; and investigations and inspections for the purpose of the
evaluation of the Puerto Rico plan under sections 18(e) and (f) of the
Act (29 U.S.C. 667(e) and (f)). Federal OSHA will also retain authority
for coverage of Federal employers and employees, and the U.S. Postal
Service (USPS), including USPS employees, and contract employees and
contractor-operated facilities engaged in USPS mail operations. The OSHA
Regional Administrator will make a prompt recommendation for the
resumption of the exercise of Federal enforcement authority under
section 18(e) of the Act (29 U.S.C. 667(e)) whenever, and to the degree,
necessary to assure
[[Page 119]]
occupational safety and health protection to employees in Puerto Rico.
[65 FR 36630, June 9, 2000]
Sec. 1952.383 Completion of developmental steps and certification.
(a) Position descriptions of State plan personnel by March, 1978.
(b) Public information program (private sector), one year after plan
approval.
(c) Analysis for inspection scheduling (private sector), March 1980.
(d) Submit administrative regulations, September, 1978.
(e) Affirmative action plan by July, 1980.
(f) File and promulgate standards, March, 1978.
(g) Adopt the Field Operations Manual, April, 1980.
(h) Adopt management information system, January, 1980.
(i) Internal training schedule, April, 1980.
(j) Employer, employee training schedule, August, 1978.
(k) Public information program (government sector), February, 1980.
(l) Analysis for inspection scheduling (government sector), June,
1980.
(m) Implementation of public employee program, October, 1978.
(n) On-site consultation regulations, March, 1979.
(o) Laboratory, August, 1980.
(p) Posters, February, 1978.
(q) Boiler and Elevator Program, June, 1980.
(r) Staffing on Board for consultation, laboratory, boiler and
elevators, February, 1980.
(s) In accordance with Sec. 1902.34 of this chapter, the Puerto
Rico occupational safety and health plan was certified effective
September 7, 1982, as having completed all developmental steps specified
in the plan as approved on August 15, 1977 on or before August 14, 1980.
This certification attests to structural completion, but does not render
judgment on adequacy of performance.
[45 FR 54334, July 15, 1980, as amended at 47 FR 39166, Sept. 7, 1982]
Sec. 1952.384 Completed developmental steps.
(a) In accordance with the requirements of Sec. 1952.10, Puerto
Rico's safety and health posters for private and public employees were
approved by the Assistant Secretary, on July 2, 1979.
(b) In accordance with 29 CFR 1952.383(a), Puerto Rico submitted
position descriptions for State plan personnel on March 3, 1980, and
submitted revised position descriptions on September 8, 1980.
(c) In accordance with 29 CFR 1952.383(b), Puerto Rico submitted its
public information program for the private sector on August 10, 1978.
(d) In accordance with 29 CFR 1952.383(c), Puerto Rico submitted its
analysis for inspection scheduling in the private sector on June 3,
1980.
(e) In accordance with 29 CFR 1952.383(d), Puerto Rico submitted its
administrative regulations on September 13, 1978, and submitted
revisions to the regulations on October 27, 1978, March 12, 1979, and
February 14, 1980.
(f) In accordance with 29 CFR 1952.383(e), Puerto Rico has developed
an affirmative action plan that was found acceptable by the United
States Office of Personnel Management on March 27, 1981.
(g) In accordance with 29 CFR 1952.383(f), Puerto Rico has
promulgated standards identical to Federal standards and subsequent
amendments to reflect changes in and additions to Federal standards. The
Regional Administrator approved these supplements on July 14, 1978 (43
FR 37233), June 18, 1979 (44 FR 71470), June 12, 1979 (44 FR 33751),
April 17, 1979 (44 FR 22830), and October 23, 1981 (46 FR 52060).
(h) In accordance with 29 CFR 1952.383(g), Puerto Rico submitted its
Field Operations Manuals on July 31, 1980, and submitted a revised
supplement adopting the Federal OSHA Field Operations Manuals on
February 25, 1981.
(i) In accordance with 29 CFR 1952.383(h), Puerto Rico has
participated in the Federal OSHA Management Information System since
August of 1978.
(j) In accordance with 29 CFR 1952.383(i), Puerto Rico submitted its
internal training schedule on May 5, 1980.
[[Page 120]]
(k) In accordance with 29 CFR 1952.383(j), Puerto Rico submitted its
employer/employee training schedule on March 11, 1980, and on February
13, 1981, submitted an updated training schedule.
(l) In accordance with 29 CFR 1952.383(k), Puerto Rico submitted its
public information program for the government sector on March 13, 1980.
(m) In accordance with 29 CFR 1952.383(l), Puerto Rico submitted its
analysis for inspection scheduling in the government sector on August
13, 1980.
(n) In accordance with 29 CFR 1952.383(m), Puerto Rico implemented
its public employee program in October 1978.
(o) In accordance with 29 CFR 1952.383(n), Puerto Rico submitted its
on-site consultation regulations on March 30, 1979.
(p) In accordance with 29 CFR 1952.383(o), Puerto Rico submitted a
State plan supplement on its industrial hygiene laboratory on July 14,
1980.
(q) In accordance with 29 CFR 1952.383(q), Puerto Rico submitted its
procedures for a boiler and elevator inspection program on November 28,
1979. Based on OSHA recommendations, Puerto Rico submitted a revision to
this supplement deleting the boiler and elevator inspection program from
the State plan on November 14, 1980.
(r) In accordance with 29 CFR 1952.383(r), Puerto Rico submitted
documentation of staffing levels for the on-site consultation program
and the industrial hygiene laboratory on March 3, 1980. Based on OSHA
recommendations, Puerto Rico deleted staffing for the boiler and
elevator inspection program from its State plan on November 14, 1980.
[44 FR 41429, July 17, 1979, as amended at 47 FR 25329, June 11, 1982]
Sec. 1952.385 Changes to approved plans.
(a) The Voluntary Protection Programs. On December 30, 1993, the
Assistant Secretary approved Puerto Rico's plan supplement, which is
generally identical to the Federal Voluntary Protection Program with the
exception of changes to reflect different structure and exclusion of the
Demonstration Program.
(b) Legislation. (1) On March 29, 1994, the Assistant Secretary
approved Puerto Rico's revised statutory penalty levels which are the
same as the revised Federal penalty levels contained in section 17 of
the Act as amended on November 5, 1990.
(2) [Reserved]
[59 FR 2995, Jan. 14, 1994, as amended at 59 FR 14556, Mar. 29, 1994]
PART 1953_CHANGES TO STATE PLANS--Table of Contents
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).
Source: 67 FR 60125, Sept. 25, 2002, unless otherwise noted.
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
[[Page 121]]
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 when changes are
required as a result of the continuing evaluation of the State program.
Such changes are called ``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. Such changes are called ``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.
(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.
[[Page 122]]
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. All plan change supplements or
required documentation must be submitted within 60 days of adoption of
the change. 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, within 60 days of adoption of the change, 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
[[Page 123]]
from the Federal program, the State must submit one copy of the required
plan supplement within 60 days of adoption of the change.
(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), 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 60 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 adopt a corresponding change or
submit 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 be required prior to adoption.
(4) If the State change is different from the Federal program
change, the State shall submit one copy of the required supplement
within 60 days of State adoption. 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 that it has adopted the change, such
as the cover page of an implementing directive or a notice of
promulgation, within 60 days of State adoption.
(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
[[Page 124]]
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 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 within 60 days of adoption of the change. 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 that it has adopted the change,
such as the cover page of an implementing directive or a notice of
promulgation, within 60 days of adoption of 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, e.g., changes to the State's legislation, and submit a
supplement within 60 days. Other State initiated supplements must be
submitted within 60 days 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
[[Page 125]]
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 within 60 days of State promulgation 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. 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 within 60 days of State promulgation 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 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.
[[Page 126]]
(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.
PART 1954_PROCEDURES FOR THE EVALUATION AND MONITORING OF APPROVED STATE
PLANS--Table of Contents
Subpart A_General
Sec.
1954.1 Purpose and scope.
1954.2 Monitoring system.
1954.3 Exercise of Federal discretionary authority.
Subpart B_State Monitoring Reports and Visits to State Agencies
1954.10 Reports from the States.
1954.11 Visits to State agencies.
Subpart C_Complaints About State Program Administration (CASPA)
1954.20 Complaints about State program administration.
1954.21 Processing and investigating a complaint.
1954.22 Notice provided by State.
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).
Source: 39 FR 1838, Jan. 15, 1974, unless otherwise noted.
Subpart A_General
Sec. 1954.1 Purpose and scope.
(a) Section 18(f) of the Williams-Steiger Occupational Safety and
Health Act of 1970 (hereinafter referred to as the Act) provides that
``the Secretary shall, on the basis of reports submitted by the State
agency and his own inspections make a continuing evaluation of the
manner in which each State having a plan approved * * * is carrying out
such plan.''
(b) This part 1954 applies to the provisions of section 18(f) of the
Act relating to the evaluation of approved plans for the development and
enforcement of State occupational safety and health standards. The
provisions of this part 1954 set forth the policies and procedures by
which the Assistant Secretary for Occupational Safety and Health
(hereinafter referred to as the Assistant Secretary) under a delegation
of authority from the Secretary of Labor (Secretary's Order 12-71, 36 FR
8754, May 12, 1971) will continually monitor and evaluate the operation
and administration of approved State plans.
(c) Following approval of a State plan under section 18(c) of the
Act, workplaces in the State are subject to a period of concurrent
Federal and State authority. The period of concurrent enforcement
authority must last for at least three years. Before ending Federal
enforcement authority, the Assistant Secretary is required to make a
determination as to whether the State plan, in actual operation, is
meeting the criteria in section 18(c) of the Act including the
requirements in part 1902 of this chapter and the assurances in the
approval plan itself. After an affirmative determination has been made,
the provisions of sections 5(a)(2), 8 (except for the purpose of
carrying out section 18(f) of the Act), 9, 10, 13, and 17 of the Act
shall not apply with respect to any occupational safety or
[[Page 127]]
health issues covered under the plan. The Assistant Secretary may,
however, retain jurisdiction under the above provisions in any
proceeding commenced under section 9 or 10 of the Act before the date of
the determination under section 18(e) of the Act.
(d) During this period of concurrent Federal and State authority,
the operation and administration of the plan will be continually
evaluated under section 18(f) of the Act. This evaluation will continue
even after an affirmative determination has been made under section
18(e) of the Act.
Sec. 1954.2 Monitoring system.
(a) To carry out the responsibilities for continuing evaluation of
State plans under section 18(f) of the Act, the Assistant Secretary has
established a State Program Performance Monitoring System. Evaluation
under this monitoring system encompasses both the period before and
after a determination has been made under section 18(e) of the Act. The
monitoring system is a three phased system designed to assure not only
that developmental steps are completed and that the operational plan is,
in fact, at least as effective as the Federal program with respect to
standards and enforcement, but also to provide a method for continuing
review of the implementation of the plan and any modifications thereto
to assure compliance with the provisions of the plan during the time the
State participates in the cooperative Federal-State program.
(b) Phase I of the system begins with the initial approval of a
State plan and continues until the determination required by section
18(e) of the Act is made. During Phase I, the Assistant Secretary will
secure monitoring data to make the following key decisions:
(1) What should be the level of Federal enforcement;
(2) Should plan approval be continued; and
(3) What level of technical assistance is needed by the State to
enable it to have an effective program.
(c) Phase II of the system relates to the determination required by
section 18(e) of the Act. The Assistant Secretary must decide, after no
less than three years following approval of the plan, whether or not to
relinquish Federal authority to the State for issues covered by the
occupational safety and health program in the State plan. Phase II will
be a comprehensive evaluation of the total State program, drawing upon
all information collected during Phase I.
(d) Phase III of the system begins after an affirmative
determination has been made under section 18(e) of the Act. The
continuing evaluation responsibility will be exercised under Phase III,
and will provide data concerning the total operations of a State program
to enable the Assistant Secretary to determine whether or not the plan
approval should be continued or withdrawn.
(e) The State program performance monitoring system provides for,
but is not limited to, the following major data inputs:
(1) Quarterly and annual reports of State program activity;
(2) Visits to State agencies;
(3) On-the-job evaluation of State compliance officers; and
(4) Investigation of complaints about State program administration.
Sec. 1954.3 Exercise of Federal discretionary authority.
(a)(1) When a State plan is approved under section 18(c) of the Act,
Federal authority for enforcement of standards continues in accordance
with section 18(e) of the Act. That section prescribes a period of
concurrent Federal-State enforcement authority which must last for at
least three years, after which time the Assistant Secretary shall make a
determination whether, based on actual operations, the State plan meets
all the criteria set forth in section 18(c) of the Act and the
implementing regulations in 29 CFR part 1902 and subpart A of 29 CFR
part 1952. During this period of concurrent authority, the Assistant
Secretary may, but shall not be required to, exercise his authority
under sections 5(a)(2), 8, 9, 10, 13 and 17 of the Act with respect to
standards promulgated under section 6 of the Act where the State has
comparable standards. Accordingly, section 18(e) authorizes, but does
not require, the Assistant Secretary to exercise his discretionary
enforcement
[[Page 128]]
authority over all the issues covered by a State plan for the entire
18(e) period.
(2) Existing regulations at 29 CFR part 1902 set forth factors to be
considered in determining how Federal enforcement authority should be
exercised. These factors include:
(i) Whether the plan is developmental or complete;
(ii) Results of evaluations conducted by the Assistant Secretary;
(iii) The State's schedule for meeting Federal standards; and
(iv) Any other relevant matters.
(29 CFR 1902.1(c)(2) and 1902.20(b)(1)(iii).
(3) Other relevant matters requiring consideration in the decision
as to the level of Federal enforcement include:
(i) Coordinated utilization of Federal and State resources to
provide effective worker protection throughout the Nation;
(ii) Necessity for clarifying the rights and responsibilities of
employers and employees with respect to Federal and State authority;
(iii) Increasing responsibility for administration and enforcement
by States under an approved plan for evaluation of their effectiveness;
and
(iv) The need to react promptly to any failure of the States in
providing effective enforcement of standards.
(b) Guidelines for determining the appropriate level of Federal
enforcement. In light of the requirements of 29 CFR part 1902 as well as
the factors mentioned in paragraph (a)(3) of this section, the following
guidelines for the extent of the exercise of discretionary Federal
authority have been determined to be reasonable and appropriate. When a
State plan meets all of these guidelines it will be considered
operational, and the State will conduct all enforcement activity
including inspections in response to employee complaints, in all issues
where the State is operational. Federal enforcement activity will be
reduced accordingly and the emphasis will be placed on monitoring State
activity in accordance with the provisions of this part.
(1) Enabling legislation. A State with an approved plan must have
enacted enabling legislation substantially in conformance with the
requirements of section 18(c) and 29 CFR part 1902 in order to be
considered operational. This legislation must have been reviewed and
approved under 29 CFR part 1902. States without such legislation, or
where State legislation as enacted requires substantial amendments to
meet the requirements of 29 CFR part 1902, will not be considered
operational.
(2) Approved State standards. The State must have standards
promulgated under State law which are identical to Federal standards; or
have been found to be at least as effective as the comparable Federal
standards; or have been reviewed by OSHA and found to provide overall
protection equal to comparable Federal standards. Review of the
effectiveness of State standards and their enforcement will be a
continuing function of the evaluation process. Where State standards in
an issue have not been promulgated by the State or have been promulgated
and found not to provide overall protection equal to comparable Federal
standards, the State will not be considered operational as to those
issues.
(3) Personnel. The State must have a sufficient number of qualified
personnel who are enforcing the standards in accordance with the State's
enabling legislation. Where a State lacks the qualified personnel to
enforce in a particular issue; e.g., Occupational Health, the State will
not be considered operational as to that issue even though it has
enabling legislation and standards.
(4) Review of enforcement actions. Provisions for review of State
citations and penalties, including the appointment of the reviewing
authority and the promulgation of implementing regulations, must be in
effect.
(c)(1) Evaluation reports. One of the factors to consider in
determining the level of Federal enforcement is the result of
evaluations conducted under the monitoring system described in this
part. While completion of an initial comprehensive evaluation of State
operations is not generally a prerequisite for a determination that a
State is operational under paragraph (b) of this section, such
evaluations will be used in determining the Federal enforcement
responsibility in certain circumstances.
(2) Where evaluations have been completed prior to the time a
determination as to the operational status of a
[[Page 129]]
State plan is made, the results of those evaluations will be included in
the determination.
(3) Where the results of one or more evaluations conducted during
the operation of a State plan and prior to an 18(e) determination reveal
that actual operations as to one or more aspects of the plan fail in a
substantial manner to be at least as effective as the Federal program,
and the State does not adequately resolve the deficiencies in accordance
with subpart C of part 1953, the appropriate level of Federal
enforcement activity shall be reinstated. An example of such deficiency
would be a finding that State standards and their enforcement in an
issue are not at least as effective as comparable Federal standards and
their enforcement. Federal enforcement activity may also be reinstated
where the Assistant Secretary determines that such action is necessary
to assure occupational safety and health protection to employees.
(d)(1) Recognition of State procedures. In order to resolve
potential conflicting responsibilities of employers and employees,
Federal authority will be exercised in a manner designed to recognize
the implementation of State procedures in accordance with approved plans
in areas such as variances, informing employees of their rights and
obligations, and recordkeeping and reporting requirements.
(i) Subject to pertinent findings of effectiveness under this part,
Federal enforcement proceedings will not be initiated where an employer
is in compliance with a State standard which has been found to be at
least as effective as the comparable Federal standard, or with any
temporary or permanent variance granted to such employer with regard to
the employment or place of employment from such State standard, or any
order or interim order in connection therewith, or any modification or
extension thereof: Provided such variance action was taken under the
terms and procedures required under Sec. 1902.4(b)(2)(iv) of this
chapter, and the employer has certified that he has not filed for such
variance on the same set of facts with the Assistant Secretary.
(ii) Subject to pertinent findings of effectiveness under this part,
and approval under Part 1953 of this chapter, Federal enforcement
proceedings will not be initiated where an employer has posted the
approved State poster in accordance with the applicable provisions of an
approved State plan and Sec. 1952.10.
(iii) Subject to pertinent findings of effectiveness under this
part, and approval under part 1953 of this chapter, Federal enforcement
proceedings will not be initiated where an employer is in compliance
with the recordkeeping and reporting requirements of an approved State
plan as provided in Sec. 1952.4.
(2) [Reserved]
(e) Discrimination complaints. State plan provisions on employee
discrimination do not divest the Secretary of Labor of any authority
under section 11(c) of the Act. The Federal authority to investigate
discrimination complaints exists even after an affirmative 18(e)
determination. (See South Carolina decision 37 FR 25932, December 6,
1972). Employee complaints alleging discrimination under section 11(c)
of the Act will be subject to Federal jurisdiction.
(f)(1) Procedural agreements. A determination as to the operational
status of a State plan shall be accompanied by an agreement with the
State setting forth the Federal-State responsibilities as follows:
(i) Scope of the State's operational status including the issues
excluded from the plan, the issues where State enforcement will not be
operational at the time of the agreement and the dates for commencement
of operations;
(ii) Procedures for referral, investigation and enforcement of
employee requests for inspections;
(iii) Procedures for reporting fatalities and catastrophes by the
agency which has received the report to the responsible enforcing
authority both where the State has and has not adopted the requirement
that employers report as provided in 29 CFR 1904.8;
(iv) Specifications as to when and by what means the operational
guidelines of this section were met; and
(v) Provision for resumption of Federal enforcement activity for
failure to substantially comply with this agreement, or as a result of
evaluation or other relevant factors.
[[Page 130]]
(2) Upon approval of these agreements, the Assistant Secretary shall
cause to be published in the Federal Register, notice of the operational
status of each approved State plan.
(3) Where subsequent changes in the level of Federal enforcement are
made, similar Federal Register notices shall be published.
[39 FR 22126, June 20, 1974, as amended at 39 FR 29182, Aug. 14, 1974;
39 FR 39036, Nov. 5, 1974; 40 FR 25450, June 16, 1975; 67 FR 60129,
Sept. 25, 2002]
Subpart B_State Monitoring Reports and Visits to State Agencies
Sec. 1954.10 Reports from the States.
(a) In addition to any other reports required by the Assistant
Secretary under sections 18(c)(8) and 18(f) of the Act and Sec.
1902.3(1) of this chapter, the State shall submit quarterly and annual
reports as part of the evaluation and monitoring of State programs. \1\
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\1\ Such quarterly and annual reports forms may be obtained from the
Office of the Assistant Regional Director in whose Region the State is
located.
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(b) Each State with an approved State plan shall submit to the
appropriate Regional Office an annual occupational safety and health
report in the form and detail provided for in the report and the
instructions contained therein.
(c) Each State with an approved State plan shall submit to the
appropriate Regional Office a quarterly occupational safety and health
compliance and standards activity report in the form and detail provided
for in the report and the instructions contained therein.
Sec. 1954.11 Visits to State agencies.
As a part of the continuing monitoring and evaluation process, the
Assistant Secretary or his representative shall conduct visits to the
designated agency or agencies of State with approved plans at least
every 6 months. An opportunity may also be provided for discussion and
comments on the effectiveness of the State plan from other interested
persons. These visits will be scheduled as needed. Periodic audits will
be conducted to assess the progress of the overall State program in
meeting the goal of becoming at least as effective as the Federal
program. These audits will include case file review and follow-up
inspections of workplaces.
Subpart C_Complaints About State Program Administration (CASPA)
Sec. 1954.20 Complaints about State program administration.
(a) Any interested person or representative of such person or groups
of persons may submit a complaint concerning the operation or
administration of any aspect of a State plan. The complaint may be
submitted orally or in writing to the Assistant Regional Director for
Occupational Safety and Health (hereinafter referred to as the Assistant
Regional Director) or his representative in the Region where the State
is located.
(b) Any such complaint should describe the grounds for the complaint
and specify the aspect or aspects of the administration or operation of
the plan which is believed to be inadequate. A pattern of delays in
processing cases, of inadequate workplace inspections, or the granting
of variances without regard to the specifications in the State plans,
are examples.
(c)(1) If upon receipt of the complaint, the Assistant Regional
Director determines that there are reasonable grounds to believe that an
investigation should be made, he shall cause such investigation,
including any workplace inspection, to be made as soon as practicable.
(2) In determining whether an investigation shall be conducted and
in determining the timing of such investigation, the Assistant Regional
Director shall consider such factors as:
(i) The extent to which the complaint affects any substantial number
of persons;
(ii) The number of complaints received on the same or similar issues
and whether the complaints relate to safety and health conditions at a
particular establishment;
(iii) Whether the complainant has exhausted applicable State
remedies; and
[[Page 131]]
(iv) The extent to which the subject matter of the complaint is
pertinent to the effectuation of Federal policy.
Sec. 1954.21 Processing and investigating a complaint.
(a) Upon receipt of a complaint about State program administration,
the Assistant Regional Director will acknowledge its receipt and may
forward a copy of the complaint to the designee under the State plan and
to such other person as may be necessary to complete the investigation.
The complainant's name and the names of other complainants mentioned
therein will be deleted from the complaint and the names shall not
appear in any record published, released or made available.
(b) In conducting the investigation, the Assistant Regional Director
may obtain such supporting information as is appropriate to the
complaint. Sources for this additional information may include ``spot-
check'' follow-up inspections of workplaces, review of the relevant
State files, and discussion with members of the public, employers,
employees and the State.
(c) On the basis of the information obtained through the
investigation, the Assistant Regional Director shall advise the
complainant of the investigation findings and in general terms, any
corrective action that may result. A copy of such notification shall be
sent to the State and it shall be considered part of the evaluation of
the State plan.
(d) If the Assistant Regional Director determines that there are no
reasonable grounds for an investigation to be made with respect to a
complaint under this Subpart, he shall notify the complaining party in
writing of such determination. Upon request of the complainant, or the
State, the Assistant Regional Director, at his discretion, may hold an
informal conference. After considering all written and oral views
presented the Assistant Regional Director shall affirm, modify, or
reverse his original determination and furnish the complainant with
written notification of his decision and the reasons therefore. Where
appropriate the State may also receive such notification.
Sec. 1954.22 Notice provided by State.
(a)(1) In order to assure that employees, employers, and members of
the public are informed of the procedures for complaints about State
program administration, each State with an approved State plan shall
adopt not later than July 1, 1974, a procedure not inconsistent with
these regulations or the Act, for notifying employees, employers and the
public of their right to complain to the Occupational Safety and Health
Administration about State program administration.
(2) Such notification may be by posting of notices in the workplace
as part of the requirement in Sec. 1902.4(c)(2)(iv) of this chapter and
other appropriate sources of information calculated to reach the public.
(b) [Reserved]
PART 1955_PROCEDURES FOR WITHDRAWAL OF APPROVAL OF STATE PLANS
--Table of Contents
Subpart A_General
Sec.
1955.1 Purpose and scope.
1955.2 Definitions.
1955.3 General policy.
1955.4 Effect of withdrawal of approval.
1955.5 Petitions for withdrawal of approval.
Subpart B_Notice of Formal Proceeding
1955.10 Publication of notice of formal proceeding.
1955.11 Contents of notice of formal proceeding.
1955.12 Administrative law judge; powers and duties.
1955.13 Disqualification.
1955.14 Ex parte communications.
1955.15 Manner of service and filing.
1955.16 Time.
1955.17 Determination of parties.
1955.18 Provision for written comments.
Subpart C_Consent Findings and Summary Decisions
1955.20 Consent findings and orders.
1955.21 Motion for a summary decision.
1955.22 Summary decision.
Subpart D_Preliminary Conference and Discovery
1955.30 Submission of documentary evidence.
1955.31 Preliminary conference.
[[Page 132]]
1955.32 Discovery.
1955.33 Sanctions for failure to comply with orders.
1955.34 Fees of witnesses.
Subpart E_Hearing and Decision
1955.40 Hearings.
1955.41 Decision of the administrative law judge.
1955.42 Exceptions.
1955.43 Transmission of the record.
1955.44 Final decision.
1955.45 Effect of appeal of administrative law judge's decision.
1955.46 Finality for purposes of judicial review.
1955.47 Judicial review.
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).
Source: 40 FR 23467, May 30, 1975, unless otherwise noted.
Subpart A_General
Sec. 1955.1 Purpose and scope.
(a) This part contains rules of practice and procedure for formal
administrative proceedings on the withdrawal of initial or final
approval of State plans in accordance with section 18(f) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 667).
(b) These rules shall be construed to secure a prompt and just
conclusion of the proceedings subject thereto.
Sec. 1955.2 Definitions.
(a) As used in this part unless the context clearly requires
otherwise:
(1) Act means the Occupational Safety and Health Act of 1970;
(2) Assistant Secretary means Assistant Secretary of Labor for
Occupational Safety and Health;
(3) Commencement of a case under section 18(f) of the Act means, for
the purpose of determining State jurisdiction following a final decision
withdrawing approval of a plan, the issuance of a citation.
(4) Developmental step includes, but is not limited to, those items
listed in the published developmental schedule, or any revisions
thereto, for each plan contained in 29 CFR part 1952. A developmental
step also includes those items in the plan as approved under section
18(c) of the Act, as well as those items in the approval decision which
are subject to evaluations (see e.g., approval of Michigan plan), which
were deemed necessary to make the State program at least as effective as
the Federal program within the 3 year developmental period. (See part
1953 of this chapter.
(5) Final approval means approval of the State plan, or any
modification thereof under section 18(e) of the Act and subpart D of 29
CFR part 1902.
(6) Initial approval means approval of a State plan, or any
modification thereof under section 18(c) of the Act and subpart C of 29
CFR part 1902;
(7) Party includes the State agency or agencies designated to
administer and enforce the State plan that is the subject of withdrawal
proceedings, the Department of Labor, Occupational Safety and Health
Administration (hereinafter called OSHA), represented by the Office of
the Solicitor and any person participating in the proceedings pursuant
to Sec. 1955.17;
(8) Person means an individual, partnership, association,
corporation, business trust, legal representative, an organized group of
individuals, or an agency, authority, or instrumentality of the United
States or of a State;
(9) Secretary means Secretary of Labor;
(10) Separable portion of a plan for purposes of withdrawal of
approval generally means an issue as defined in 29 CFR 1902.2(c), i.e.
``an industrial, occupational or hazard grouping which is at least as
comprehensive as a corresponding grouping contained in (i) one or more
sections in subpart B or R of part 1910 of this chapter, or (ii) one or
more of the remaining subparts of part 1910'': Provided, That wherever
the Assistant Secretary has determined that other industrial,
occupational or hazard groupings are administratively practicable, such
groupings shall be considered separable portions of a plan.
(b) [Reserved]
[40 FR 23467, May 30, 1975, as amended at 67 FR 60129, Sept. 25, 2002]