OSHA Instruction STP 2-1.164 August 12, 1991 Office of State Programs

SUBJECT: Involving State Plan States in the Development of Federal Standards

A. Purpose. This instruction formalizes OSHA's policy to involve the States administering their own OSHA-approved occupational safety and health programs, to the maximum extent possible, in the development of new and revised Federal safety and health standards, and establishes procedures to be followed by National Office Directorates and Regional Administrators in providing information on, and obtaining State plan States' input and participation in, the Federal standard development process.

B. Scope. This instruction applies to OSHA National Office Directorates, Regional Administrators, and State plan States.

C. Action. The Directorate of Federal-State Operations shall, in cooperation with other Directorates and Regional Administrators, provide each of the State plan States, at specified times, information on and an opportunity to participate in the development of new and revised Federal safety and health standards. In implementing this instruction, the procedures in paragraph E. below shall be followed.

D. Background. Section 18 of the Occupational Safety and Health Act of 1970 creates a unique relationship which establishes the basis for the States to assume a role, somewhat different from that of the general public, with OSHA in the development and enforcement of occupational safety and health standards. OSHA presently provides each State the opportunity to participate in the development of Federal standards on an ad hoc basis by means of commenting on draft standards (proposed and final), when such drafts are shared with any outside group, and participating in the Federal standards promulgation process by commenting on proposed standards and testifying at hearings. This new policy provides an opportunity for early and substantive involvement of each State, in which it can also share information with OSHA, in the course of OSHA's internal deliberations to develop new standards. The new policy is intended to provide for and protect the full and frank exchange of views and experiences between an individual State and OSHA officials during the decision-making process and to prevent predecisional disclosure of incipient policies or decisions that could disrupt agency procedures.

E. Freedom of Information Act (FOIA) Implications. Any confidential OSHA rulemaking documents transmitted to State plan States shall be transmitted as a limited, inter-agency/ intra-agency disclosure, made as part of OSHA's internal decision-making process, for the purpose of involving the individual States, who administer Federally approved safety and health plans, in the standards process. All such confidential rulemaking documents are protected from disclosure as deliberative predecisional material.

1. State Assurances. Each State plan State shall assure in writing that confidential OSHA rulemaking documents, and any comments the State may wish to submit in response to the documents, shall not be released to or discussed with any person outside of the State agency, and that each State has adequate authority under State law to assure the confidentiality of such documents.

2. State Review of State FOIA Laws and Notification. Each State shall review its authority to protect the confidentiality of the documents referred to above, and shall notify OSHA of its conclusions.

a. Within 45 calendar days of issuance of this instruction, each State shall submit in writing to the respective Regional Administrator a statement as to whether the State has adequate authority under State law to protect the confidentiality of OSHA rulemaking documents provided to the State pursuant to this instruction.

b. The Regional Administrator shall forward a copy of each State's written notification to the Director, Office of State Programs, immediately upon receipt.

c. If it is concluded that the State does not have the authority to withhold such documents from disclosure, OSHA will not be able to include that State in its internal distribution process.

3. State Notification of Requests for Release of Documents. Each State shall promptly notify the Regional Administrator of any requests for State release of documents formally or informally. Such requests shall be referred to the Office of State Programs for coordination with the appropriate OSHA Standards Directorate for response.

F. Procedures. The major steps that OSHA will implement in providing State plan States a role in the Federal standards development process are as follows:

1. Department's Regulatory Program. The Office of State Programs shall, on an annual basis, forward to each State a copy of the final printed version of the OSHA portion of the Department's Regulatory Program, after it is published by the Office of Management and Budget.

2. Semiannual Regulatory Agenda and List of Project Officers.

a. The Office of State Programs shall forward copies of the Federal Register notice announcing OSHA's Semiannual Regulatory Agenda, along with the list identifying staff contacts in the Directorates of Safety Standards and Health Standards for each rule, to each State so that any State having or seeking information, or otherwise wishing to have involvement in a project, may contact the Standards staff directly. Contact is solely at each State's initiative. (The Semiannual Regulatory Agenda is generally published by the Department in April and October of each year.)

b. The Directorates of Health Standards and Safety Standards shall, within 15 days of a request by the Office of State Programs, forward to the Office of State Programs a list identifying the staff contacts for each of the proposed rules listed in the Semiannual Regulatory Agenda.

c. In addition, Standards Directorate staff shall discuss non-sensitive information with a State when contacted. If a State requests sensitive or confidential information, the request shall be referred to designated management officials for a response.

3. Copies of Reports of OSHA Standards Actions.

a. The Directorate of Safety Standards shall provide a copy of each of its Reports of OSHA Safety Standards Actions and the Directorate of Health Standards shall provide a copy of each of its Reports of OSHA Health Standards Actions, which list all safety and health standards projects and their current promulgation status/projected dates, to the Office of State Programs. These updates shall be provided at least quarterly and monthly as possible.

b. The Office of State Programs shall forward to each State a copy of the Reports of OSHA Standards Actions.

4. Preliminary Input to Standards Development.

a. Whenever it is determined that preliminary input from experienced field staff is needed as part of the standards development process, the Office of State Programs shall be notified immediately by the appropriate Standards Directorate and/or the Office of Field Programs of the establishment of a Federal standards task group for a particular standard so the Office of State Programs may notify the Occupational Safety and Health State Plans Association (OSHSPA) chairperson to coordinate individual State involvement.

b. The OSHSPA chairperson, in coordination with the Office of State Programs, will determine whether any State has a particular interest or expertise in the standard at issue, and invite representatives from one or more States, with technical expertise on the subject, to express the State's individual experiences and to give factual information to the Federal standards task group.

(1) It will be up to each State to volunteer to share its experience and information with the OSHA standards task groups.

(2) If a State is interested in participating, its representative must be willing to travel and will not receive special Federal reimbursement for travel or other related expenses. In addition, each State representative, will be expected not only to present the views of and provide feedback to its own State but to share appropriate information on the standard's progress with the OSHSPA membership.

5. Notification When Entering State Plan States.

a. Whenever Health Standards, Safety Standards, or Regulatory Analysis staff (including contractors) make contacts (e.g. telephone surveys or visits) in a State plan State, including visits to an employer's establishment for any purpose including the gathering of information to be used in promulgating standards, they shall give the Regional Administrator and State designee notice before entering the State. Notification shall be through the Regional Administrator, who will in turn notify the State, or directly to the State if the Regional Administrator authorizes. When a national study is being conducted through a telephone survey, the Office of State Programs will issue a general notification to all State designees, based on information provided by Regulatory Analysis.

b. If the State wishes to accompany the Standards or Regulatory Analysis staff (including contractors) to an employer's establishment, the State will send only non-compliance personnel.

c. When a public hearing on any standard is held in a State plan State, the State Designee will be given an opportunity to make welcoming remarks and to testify early in the proceeding.

6. Beginning Stages of Standard Development.

a. Early in the standards process, when the Directorates of Health Standards and Safety Standards send copies of preliminary standard development information or documents, including but not limited to, initial staff concepts, early proposals, draft Advance Notices of Proposed Rulemaking (ANPR), Requests for Information (RFI), or staff drafts to any outside group or to the Regional Administrators for review and comment, both the Office of Field Programs and the Office of State Programs shall be sent copies.

b. The appropriate Standards Directorate shall forward copies of the preliminary documents to the Regional Administrators through the Office of Field Programs for review and comment.

c. The Office of State Programs shall forward copies of the preliminary documents to each State designee for review and comment. State comments shall be submitted directly to the appropriate Standards Directorate with copies to the Regional Administrator and the Office of State Programs. All advance copies of documents are provided to the States under the non-disclosure terms and conditions established in section E, above.

7. Draft Regulatory Text.

a. In some cases, the first document developed in the standards process will be draft regulatory text. The Directorates of Health Standards and Safety Standards shall send copies of such draft language to both the Office of Field Programs and the Office of State Programs, at such times as field review is appropriate.

b. The appropriate Standards Directorate shall forward copies of draft language to the Regional Administrators through the Office of Field Programs for review and comment.

c. The Office of State Programs shall forward copies of draft language to the State designees for review and comment. State comments shall be submitted directly to the appropriate Standards Directorate for their consideration with copies to the Regional Administrator and the Office of State Programs. State comments and all advance copies of documents are provided to the States under the non-disclosure terms and conditions established in section E, above.

Note. Each State must be aware that its early participation does not mean all subsequent drafts will be automatically provided to it. Any State with a particular interest in the standard should maintain contact with the standards Project Officer and offer further input.

8. Advance Copy of Standards Federal Register Notice.

a. After the final version of a standard (proposed or final) has received OMB clearance it is sent to the appropriate Standards Directorate for final corrections.

b. After OMB suggested corrections are made (but while final Departmental clearance and Assistant Secretary signature are being obtained), the appropriate Standards Directorate shall forward to the Office of State Programs and the Office of Field Programs an advance copy of the standards Federal Register notice.

c. The appropriate Standards Directorate shall forward to the Regional Administrators through the Office of Field Programs an advance copy of the standards Federal Register notice.

d. Depending upon the circumstances unique to each standard, the Office of State Programs may forward to each State plan State an advance copy of the standards Federal Register notice, and include in its transmittal letter the anticipated publication date. These documents, like all other advance copies will be provided subject to the non-disclosure terms and conditions established in section E, above (pending publication in the Federal Register).

(1) If the preamble is extremely long only the Summary and Regulatory Text will be provided, but upon specific request to the Office of State Programs or the Office of Field Programs the entire text will be provided. Short Federal Register notices will be telefaxed with no hard copy to follow.

(2) Such advance Federal Register notices are provided so that each State may be prepared to respond to press inquiries and prepare to initiate its own parallel State promulgation process. However, no discussion or release of the content or nature of the Federal Register notice may occur until it is made public Federally through Federal Register posting/publication, news release or news conference.

e. Every effort will be made to provide such notice of intended publication to each State as far in advance as possible. However, circumstances unique to each standard, e.g. need for Secretary of Labor announcement, and/or Congressional/pending court actions, etc., may limit the amount of time possible for advance notice.

Gerard F. Scannell Assistant Secretary

DISTRIBUTION: National Office Directorates Regional Administrators State Designees

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