[Federal Register Volume 80, Number 97 (Wednesday, May 20, 2015)]
[Proposed Rules]
[Pages 28890-28893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-12154]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1956

[Docket No. OSHA-2015-0003]


Maine State Plan for State and Local Government Employers; Notice 
of Submission; Proposal To Grant Initial State Plan Approval; Request 
for Public Comment and Opportunity To Request Public Hearing

AGENCY: Occupational Safety and Health Administration (OSHA), 
Department of Labor.

ACTION: Proposed rule; request for written comments; notice of 
opportunity to request informal public hearing.

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SUMMARY: This document gives notice of the submission by the Maine 
Department of Labor of a developmental State Plan for occupational 
safety and health, applicable only to public sector employment 
(employees of the State and its political subdivisions), for 
determination of initial approval under Section 18 of the Occupational 
Safety and Health Act of 1970 (the ``Act''). OSHA is seeking written 
public comment on whether or not initial State Plan approval should be 
granted and offers an opportunity to interested persons to request an 
informal public hearing on the question of initial State Plan approval. 
Approval of the Maine State and Local Government Only State Plan will 
be contingent upon a determination that the Plan meets, or will meet 
within three years, OSHA's Plan approval criteria and the availability 
of funding as contained in the Department of Labor's Fiscal Year 2015 
budget.

DATES: Comments and requests for a hearing must be submitted by June 
19, 2015.

ADDRESSES: Written comments: Submit comments, identified by docket 
number OSHA-2015-0003, by any of the following methods:
    Electronically: Submit comments and attachments electronically at 
http://www.regulations.gov, which is the Federal eRulemaking Portal. 
Follow the instructions on-line for making electronic submissions; or
    Fax: If your submission, including attachments, does not exceed 10 
pages, you may fax them to the OSHA Docket Office at (202) 693-1648; or
    U.S. mail, hand delivery, express mail, messenger or courier 
service: Submit your comments and attachments to the OSHA Docket 
Office, Docket Number OSHA-2015-0003, U.S. Department of Labor, Room N-
2625, 200 Constitution Avenue NW., Washington, DC 20210; telephone 
(202) 693-2350 (OSHA's TTY number is (877) 889-5627). Deliveries (hand, 
express mail, messenger and courier service) are accepted during the 
Department of Labor's and Docket Office's normal business hours, 8:15 
a.m.-4:45 p.m., EDT.
    Instructions for submitting comments: All submissions must include 
the docket number (Docket No. OSHA-2015-0003) for this rulemaking. 
Because of security-related procedures, submission by regular mail may 
result in significant delay. Please contact the OSHA Docket Office for 
information about security procedures for making submissions by hand 
delivery, express mail and messenger or courier service. All comments, 
including any personal information you provide, are placed in the 
public docket without change and will be made available online at 
http://www.regulations.gov. Therefore, OSHA cautions you about 
submitting personal information such as social security numbers and 
birthdates.
    Docket: To read or download submissions in response to this Federal 
Register notice, go to docket number OSHA-2015-0003, at http://www.regulations.gov. All submissions are listed in the http://www.regulations.gov index, however some information (e.g., copyrighted 
material) is not publicly available to read or download through that 
Web page. All submissions, including copyrighted material, are 
available for inspection at the OSHA Docket Office. Electronic copies 
of this Federal Register document as well as copies of the proposed 
Maine State and Local Government Only State Plan narrative are 
available at http://www.regulations.gov. This document, as well as news 
releases and other relevant information, is available at OSHA's Web 
page at http://www.osha.gov. are available at OSHA's Web page at http://www.osha.gov. A copy of the documents referenced in this notice may 
also be obtained from the OSHA Docket Office, at the address above.

FOR FURTHER INFORMATION CONTACT:
    For press inquiries: Contact Francis Meilinger, Office of 
Communications, Room N-3647, OSHA, U.S. Department of Labor, 200 
Constitution Avenue NW., Washington, DC 20210; Telephone (202) 693-
1999; email meilinger.francis2@dol.gov.
    For general and technical information: Contact Douglas J. 
Kalinowski, Director, OSHA Directorate of Cooperative and State 
Programs, Room N-3700, U.S. Department of Labor, 200 Constitution 
Avenue NW., Washington, DC 20210, telephone (202) 693-2200; email: 
kalinowski.doug@dol.gov.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 18 of the Occupational Safety and Health Act of 1970 (the 
``Act''), 29 U.S.C. 667, provides that a State which desires to assume 
responsibility for the development and enforcement of standards 
relating to any occupational safety and health issue with respect to 
which a Federal standard has been promulgated may submit a State Plan 
to the Assistant Secretary of Labor for

[[Page 28891]]

Occupational Safety and Health (``Assistant Secretary'') documenting 
the proposed program in detail. Regulations promulgated pursuant to the 
Act at 29 CFR part 1956 provide that a State may submit a State Plan 
for the development and enforcement of occupational safety and health 
standards applicable only to employers of the State and its political 
subdivisions (``public employers''). Under these regulations the 
Assistant Secretary will approve a State Plan for public employers if 
the Plan provides for the development and enforcement of standards 
relating to hazards in employment covered by the Plan which are or will 
be at least as effective in providing safe and healthful employment and 
places of employment as standards promulgated and enforced under 
Section 6 of the Act, giving due consideration to differences between 
public and private sector employment. In making this determination the 
Assistant Secretary will consider, among other things, the criteria and 
indices of effectiveness set forth in 29 CFR part 1956, subpart B. 
State and local government workers are excluded from Federal OSHA 
coverage under the Act.

B. Maine State Plan History

    Since 1971, the Maine Department of Labor, Bureau of Labor 
Standards (Bureau), has adopted standards and performed inspections in 
the public sector (State, county, and municipal employers) as outlined 
under the provisions of the State's existing enabling legislation: 
Maine Revised Statutes, Title 26: Labor and Industry. Maine began 
working on a State and Local Government Only State Plan in 2012 and 
submitted a draft Plan to OSHA in February of 2013. OSHA's review 
findings were detailed in various memoranda and other documents. OSHA 
determined that the Maine statutes, as structured, and the proposed 
State Plan necessitated changes in order to meet the State and Local 
Government Only State Plan approval criteria in 29 CFR 1956. Maine 
formally submitted a revised Plan applicable only to public employers 
for Federal approval on May 2, 2013. Over the next several months, OSHA 
worked with Maine in identifying areas of the proposed Plan which 
needed to be addressed or required clarification. In response to 
Federal review of the proposed State Plan, supplemental assurances, and 
revisions, corrections and additions to the Plan were submitted on 
September 4, 2013 and November 7, 2014. Further modifications were 
submitted by the State on December 19, 2014. Amendments to Maine 
Revised Statutes, Title 26 were proposed and enacted by the Maine 
Legislature and signed into law by the Governor in 2014. The amended 
legislation provides the basis for establishing a comprehensive 
occupational safety and health program applicable to the public 
employers in the State. The revised Plan has been found to be 
conceptually approvable as a developmental State Plan.
    The Act provides for funding of up to 50% of the State Plan costs, 
but longstanding language in OSHA's appropriation legislation further 
provides that OSHA must fund ``* * * no less than 50% of the costs . . 
. required to be incurred'' by an approved State Plan. Such Federal 
funds to support the State Plan must be available prior to State Plan 
approval. The Fiscal Year 2015 Omnibus Appropriations Act includes 
$400,000 in additional OSHA State Plan grant funds to allow for 
Department of Labor approval of a Maine State Plan. After an 
opportunity for public comment and a hearing, should one be requested, 
the Assistant Secretary will approve the Maine State and Local 
Government Only State Plan if it is determined that the Plan meets the 
criteria set forth in the Act and applicable regulations at 29 CFR part 
1956, subpart B. The approval of a State Plan for state and local 
government employers in Maine is not a significant regulatory action as 
defined in Executive Order 12866.

C. Description of the Maine State Plan

    The Plan designates the Maine Department of Labor as the State 
agency responsible for administering the Plan throughout the State. 
Under the Plan's legislation, Title 26 of the Maine Revised Statutes, 
the Maine Department of Labor has full authority to adopt standards and 
regulations (through the Board of Occupational Safety and Health) and 
enforce and administer all laws and rules protecting the safety and 
health of employees of the State and its political subdivisions. Maine 
will adopt State standards identical to Federal occupational safety and 
health standards (with minor exceptions) as promulgated through March 
30, 2015. The Plan also provides that future OSHA standards and 
revisions will be adopted by the State within six months of Federal 
promulgation (30 days for any emergency temporary standard) in 
accordance with the requirements at 29 CFR 1953.5. Title 26, Chapter 6, 
Section 571 of the Maine Revised Statutes includes provisions for the 
granting of permanent and temporary variances from State standards to 
public employers in terms substantially similar to the variance 
provisions contained in the Act. Variances may not be granted unless it 
is established that adequate protection is afforded employees under the 
terms of the variance. Title 26, Chapter 6, Section 566 and Chapter 3, 
Section 44 of the Maine Revised Statutes provides for inspections of 
covered workplaces. Title 26, Chapter 3, Subsection 50 provides for 
inspections in response to employee complaints. If a determination is 
made that an employee complaint does not warrant an inspection, the 
complainant will be notified in writing of such determination. 
Additionally, Section 44-A of Chapter 3 provides the opportunity for 
employer and employee representatives to accompany an inspector during 
an inspection for the purpose of aiding in the inspection. The Plan in 
Title 26, Chapter 3, Sections 42-B and 45, provides for notification to 
employees of their protections and obligations under the Plan by such 
means as a State poster, required posting of notices of violation, etc. 
Title 26, Chapter 6, subsection 570 provides for protection of 
employees against discharge or discrimination resulting from exercise 
of their rights under the State Acts in terms essentially identical to 
Section 11(c) of the Federal Act. The Plan also includes provisions for 
right of entry for inspection, prohibition of advance notice of 
inspection, and employers' obligations to maintain records and provide 
reports as required.
    Section 46 of Title 26 contains authority for a system of first 
instance monetary penalties, and the State's intent is to issue 
monetary penalties for serious violations. The State has discretionary 
authority for civil penalties of up to $1,000 per day the violation 
continues for repeat and willful violations. Serious and other-than-
serious violations may be assessed a penalty of up to $1,000 per 
violation and failure-to-correct violations may be assessed a penalty 
of up to $1,000 per day. In addition, criminal penalties can be issued 
to public employers who willfully violate any standard, rule or order. 
The Plan provides a scheme of enforcement for compelling compliance 
under which public employers are issued citations for any violation of 
standards. These citations must describe the nature of the violation, 
including reference to the standard, and fix a reasonable time for 
abatement. The Maine Plan includes the Board of Occupational Safety and 
Health (Board), which adopts standards, and also is an independent 
review authority for review of contested cases. The Director of the 
Bureau will remain responsible for the enforcement process, including 
the

[[Page 28892]]

issuance of citations and penalties, and their defense, if contested. 
Public employers or their representatives who receive a citation or a 
proposed penalty may within 15 working days contest the citation, 
proposed penalty and/or abatement period and request a hearing before 
the Board. Any public employee or representative aggrieved by a 
citation or proposed penalty may within 15 working days request a 
hearing before the Board. Employers may also request informal review of 
penalties with the Bureau if the employer agrees to abate the cited 
hazard. The Board's decision is subject to appeal to the courts.
    The State currently has a staff of two safety compliance officers 
and zero health compliance officers. The Bureau delivers OSHA's On-Site 
Consultation program to private sector employers throughout the State. 
Maine currently has a staff of three safety and two health consultants, 
who perform duties equivalent to OSHA's On-Site Consultation program, 
for state and local government employers. Currently, for these 
employers, if the state receives a health complaint, a consultant will 
accompany and assist the enforcement officer. The Plan provides 
assurances that within six months no staff will have dual roles, and 
the State will have a fully trained, adequate staff of two safety 
compliance officers and one health compliance officer for enforcement 
inspections, and three safety consultants and one health consultant to 
perform consultation services in the public sector. As new staff 
members are hired they will perform either enforcement or consultation 
functions. 29 CFR 1956.10(g) requires that State Plans for public 
employers provide a sufficient number of adequately trained and 
qualified personnel necessary for the enforcement of standards. The 
compliance staffing requirements (or benchmarks) for State Plans 
covering both the private and public sectors are established based on 
the ``fully effective'' test established in AFL-CIO v. Marshall, 570 
F.2d 1030 (D.C. Cir. 1978). This staffing test, and the complicated 
formula used to derive benchmarks for complete private/public sector 
Plans, is not intended, nor is it appropriate, for application to the 
staffing needs of public employer only Plans. However, the State has 
given satisfactory assurance in its Plan that it will meet the staffing 
requirements of 29 CFR 1956.10. The State has also given satisfactory 
assurances of adequate State matching funds (50%) to support the Plan 
and is requesting initial Federal funding of $400,000 for a total 
initial program effort of $800,000. Although the State statute sets 
forth the general authority and scope for implementing the Maine State 
and Local Government Only State Plan, the Plan is developmental under 
the terms of 29 CFR 1956.2(b), in that specific rules, regulations, and 
implementing procedures must still be adopted or revised to carry out 
the Plan and make it structurally ``at least as effective'' as Federal 
OSHA and fully operational. The Plan sets forth a timetable for the 
accomplishment of these and other developmental goals within three 
years of Plan approval. This timetable addresses such general areas as 
the minor revision of existing legislation and development of 
procedures for the on-site public sector consultation program. Other 
developmental aspects include hiring and training of staff, 
participation in OSHA's Information System (OIS), development of a 
Field Operations Manual, development of an Annual Performance Plan and 
a Five-Year Strategic Plan and all other implementing policies, 
procedures, regulations and instruction necessary for the operation of 
an effective program.

D. Request for Public Comment and Opportunity To Request Hearing

    Public comment on the Maine State and Local Government Only State 
Plan is hereby requested. Interested persons are invited to submit 
written data, views, and comments with respect to this proposed initial 
State Plan approval. These comments must be received on or before June 
19, 2015. Written submissions must clearly identify the issues that are 
addressed and the positions taken with respect to each issue. The State 
of Maine will be afforded the opportunity to respond to each 
submission. The Maine Department of Labor must also publish appropriate 
notice within the State of Maine within five days of publication of 
this notice, announcing OSHA's proposal to approve a Maine State and 
Local Government Only State Plan, contingent on the availability of 
appropriated funds, and giving notice of the opportunity for public 
comment. Pursuant to 29 CFR 1902.13(f), interested persons may request 
an informal hearing concerning the proposed initial State Plan 
approval. Such requests also must be received on or before June 19, 
2015 and may be submitted electronically, by facsimile, or by regular 
mail, hand delivery, express mail, messenger or courier service, as 
indicated under ADDRESSES above. Such requests must present 
particularized written objections to the proposed initial State Plan 
approval. Within 30 days of the close of the comment period, the 
Assistant Secretary will review all comments submitted; will review all 
hearing requests; and will schedule an informal hearing if a hearing is 
required to resolve substantial issues. The Assistant Secretary will, 
within a reasonable time after the close of the comment period or after 
the certification of the record if a hearing is held, publish a 
decision in the Federal Register. All written and oral submissions, as 
well as other information gathered by OSHA, will be considered in any 
action taken. The record of this proceeding, including written comments 
and requests for hearing, and all materials submitted in response to 
this notice and at any subsequent hearing, will be available at http://www.regulations.gov or the OSHA Docket Office at the address above.

E. Regulatory Flexibility Act

    OSHA certifies pursuant to the Regulatory Flexibility Act of 1980 
(5 U.S.C. 601 et seq.) that the proposed initial approval of the Maine 
State Plan will not have a significant economic impact on a substantial 
number of small entities. By its own terms, the Plan will have no 
effect on private sector employment, but is limited to the State and 
its political subdivisions. Moreover, Title 26, Labor and Industry, of 
the Maine Revised Statutes, was enacted in 1971. This legislation 
established the Board, whose purpose is to formulate rules that shall, 
at a minimum, conform with federal standards of occupational safety and 
health, so the state program could eventually be approved as State and 
Local Government Only State Plan. Since 1971 the Maine program for 
public employers has been in operation under the Maine Department of 
Labor with State funding and all state and local government employers 
in the State have been subject to its terms. Compliance with State OSHA 
standards is required by State law; Federal approval of a State Plan 
imposes regulatory requirements only on the agency responsible for 
administering the State Plan. Accordingly, no new obligations would be 
placed on public sector employers as a result of Federal approval of 
the Plan.

F. Federalism

    Executive Order 13132, ``Federalism,'' emphasizes consultation 
between Federal agencies and the States and establishes specific review 
procedures the Federal government must follow as it carries out 
policies which affect state or local governments. OSHA has consulted 
extensively with Maine

[[Page 28893]]

throughout the development, submission and consideration of its 
proposed State Plan. Although OSHA has determined that the requirements 
and consultation procedures provided in Executive Order 13132 are not 
applicable to initial approval decisions under the Act, which have no 
effect outside the particular State receiving the approval, OSHA has 
reviewed the Maine initial approval decision proposed today, and 
believes it is consistent with the principles and criteria set forth in 
the Executive Order.

Authority and Signature

    David Michaels, Ph.D., MPH, Assistant Secretary of Labor for 
Occupational Safety and Health, U.S. Department of Labor, 200 
Constitution Ave. NW., Washington, DC, authorized the preparation of 
this notice. OSHA is issuing this notice under the authority specified 
by Section 18 of the Occupational Safety and Health Act of 1970 (29 
U.S.C. 667), Secretary of Labor's Order No. 1-2012 (77 FR 3912), and 29 
CFR parts 1902 and 1956.

    Signed in Washington, DC, on May 14, 2015.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2015-12154 Filed 5-19-15; 8:45 am]
 BILLING CODE 4510-26-P