[Federal Register: July 10, 2009 (Volume 74, Number 131)][Proposed Rules]
[Page 33189-33192]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10jy09-12]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1956
[Docket No. OSHA-2009-0010]
RIN 1218-AC44
Illinois State Plan for Public Employees Only; 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, Department of
Labor (OSHA).
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 Illinois
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 Illinois Public Employee 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 2009
budget.
DATES: Written comments and requests for a hearing must be submitted
(postmarked, sent or received) by August 10, 2009.
ADDRESSES: You may submit comments and requests for a hearing,
identified by Docket No. OSHA-2009-0010, by any of the following
methods:
Electronically: Comments and attachments and requests for a hearing
may be submitted electronically at http://www.regulations.gov, which is
the Federal eRulemaking Portal. Follow the instructions for submitting
comments.
Facsimile: If your comments, including attachments, and requests
for a hearing do not exceed 10 pages, you may fax them to the OSHA
Docket Office at 202-693-1648. Hard copies of these documents are not
required.
Regular mail, hand delivery, express mail, messenger or courier
service: Submit three copies of your comments and attachments, as well
as hearing requests, to the OSHA Docket Office, Docket No. OSHA-2009-
0010, Technical Data Center, Room N-2625, OSHA, U.S. Department of
Labor, 200 Constitution Avenue, NW., Washington, DC 20210; Telephone
202-693-2350 (TTY number 877-889-5627). Note that security-related
problems may result in significant delays in receiving submissions by
regular mail. Please contact the OSHA Docket Office for information
about security procedures concerning delivery of materials by express
delivery, hand delivery, or courier service. The OSHA Docket Office and
Department of Labor hours of operation are 8:15 a.m. to 4:45 p.m., ET.
Instructions: All submissions must include the Agency name and the
OSHA docket number (OSHA-2009-0010). All submissions, including any
personal information, are placed in the public docket without revision,
and will be available online at http://www.regulations.gov. Therefore,
OSHA cautions members of the public against submitting information and
statements that should remain private, including comments that contain
personal information, such as Social Security numbers, birth dates, and
medical data.
Docket: To read or download comments or other material in the
docket, go to http://www.regulations.gov or to the OSHA Docket Office
at the address above. Documents in the docket 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 this
Web site. All submissions, including copyrighted material, are
available for inspection and copying at the OSHA Docket Office. Contact
the OSHA Docket Office for assistance in locating docket submissions,
including notices of intention to appear, the text of testimony, and
documentary evidence.
Copies of this Federal Register notice: Electronic copies of this
notice as well as copies of the proposed Illinois State Plan for Public
Employees Only are available at http://www.regulations.gov. Electronic
copies of this notice, as well as news releases and other relevant
information, are available on OSHA's Web page at http://www.osha.gov.
Copies of the proposed Illinois State Plan for Public Employees
Only are also available for review and copying at: OSHA's Regional
Office in Chicago, Illinois, at 230 South Dearborn Street, 32nd Floor,
Room 3244, Chicago, Illinois 60604, and at: The Offices of the Illinois
Department of Labor, Safety Inspection and Education Division at 1 West
Old State Capitol Plaza, 3rd floor, Springfield, Illinois 62701; 160
North LaSalle Street, Suite C-1300, Chicago, Illinois 60601; or 2309
West Main Street, Suite 115, Marion, Illinois 62959.
FOR FURTHER INFORMATION CONTACT:
Press inquiries: Contact Jennifer Ashley, Office of Communications,
Room N-3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue,
NW., Washington, DC 20210; Telephone (202) 693-1999.
General and technical inquiries: Contact Barbara Bryant, Director,
Office of State Programs, Directorate of Cooperative and State
Programs, OSHA, U.S. Department of Labor, Room N-3700, 200 Constitution
Avenue, NW., Washington, DC 20210, Telephone (202) 693-2244 or Fax
(202) 693-1671.
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 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 employees of the State and its political subdivisions ("public
employees"). Under these regulations the Assistant Secretary will
approve a State Plan for public employees 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 for public employees as standards promulgated and enforced
under section 6 of the Federal 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 Occupational Safety and Health Act
of 1970.
B. Illinois State Plan History
In 1973 the Illinois Industrial Commission and the Illinois
Department of Labor obtained OSHA approval of a State Plan for the
enforcement of occupational safety and health standards covering
private sector workplaces as well as a program for public employees in
Illinois. That Plan was approved by the Assistant Secretary on November
5, 1973 (38 FR 30436; 29 CFR 1952.280 et seq.). The Plan was
subsequently withdrawn effective June 30, 1975 by the State of Illinois
under the authority of then Governor Dan Walker after the State was
unable to make the necessary modifications to its program and statutory
authority, and its State funding was withdrawn (40 FR 24523).
Since 1985, the Illinois Department of Labor (IDOL), Safety
Inspection and Education Division (SIED), has adopted standards and
performed inspections in the public sector (State, county, and
municipal employees) as outlined under the provisions of the State's
existing enabling legislation: The Illinois Safety Inspection and
Education Act (SIEA) [820 ILCS 220] and the Illinois Health and Safety
Act (HSA) [820 ILCS 225]. In 2005, Illinois began working on a Public
Employee Only State Plan and submitted a draft Plan to OSHA in May of
2006. OSHA's review findings were detailed in various memoranda and
other documents, including a May 18, 2007 letter to the Illinois
Department of Labor Director Catherine Shannon. OSHA determined that
the Illinois statutes, as structured, and the proposed State Plan
presented several obstacles to meeting the Federal Public Employee Only
State Plan approval criteria in 29 CFR 1956. Amendments to both the
Illinois Safety Inspection and Education Act and the Illinois Health
and Safety Act were proposed and enacted by the Illinois General
Assembly and signed into law by the Governor in 2006 and 2007. The
amended legislation provides the basis for establishing a comprehensive
occupational safety and health program applicable to the public
employees in the State.
Illinois formally submitted a revised Plan applicable only to
public employees for Federal approval on June 18, 2008. Over the next
several months, OSHA worked with Illinois 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 April 8, 2009 and May 15, 2009. Further modifications were
submitted by the State on June 8, 2009. The revised IDOL/SIED 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 Omnibus Appropriations Act for Fiscal Year 2009 includes
$1.5 million in additional OSHA State Plan grant funds to allow for
Department of Labor approval of an Illinois State Plan.
After an opportunity for public comment and a hearing, should one
be requested, the Assistant Secretary of Labor will approve the
Illinois Public Employee Only State Plan if it is determined that the
Plan meets the criteria set forth in the Occupational Safety and Health
Act of 1970 and applicable regulations at 29 CFR Part 1956, Subpart B.
The approval of a State Plan for public employees in Illinois is not a
significant regulatory action as defined in Executive Order 12866.
C. Description of the Illinois State Plan
The Plan designates the Illinois Department of Labor as the State
agency responsible for administering the Plan throughout the State.
Under the Plan's legislation, the Illinois Safety Inspection and
Education Act [820 ILCS 220] and the Illinois Health and Safety Act
[820 ILCS 225], the Illinois Department of Labor has full authority to
adopt standards and regulations and enforce and administer all laws and
rules protecting the safety and health of employees of the State and
its political subdivisions. Illinois has adopted State standards
identical to Federal occupational safety and health standards as
promulgated through September 30, 2005. The State Plan includes a
commitment to update all standards within one year after Plan approval.
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.
Section 4.2 of the Illinois Health and Safety Act [820 ILCS 225]
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
Federal Act. The State provisions require employee notification of
variance applications as well as employee rights to participate in
hearings held on variance applications. Variances may not be granted
unless it is established that adequate protection is afforded employees
under the terms of the variance.
Sections 2 and 2.1 of the Illinois Safety Inspection and Education
Act (SIEA) [820 ILCS 220] provide for inspections of covered
workplaces, including 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 2 of the SIEA 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 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. Section 2.2 of
the Illinois Safety Inspection and Education Act 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.
Although Section 2.3 of the SIEA contains authority for a system of
first-instance monetary penalties, in practice it is the State's intent
to issue monetary penalties only for failure to correct and egregious
violations. The State has discretionary authority for civil penalties
of not more than $10,000 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 violation per day. In addition, any public
employer who willfully violates any standard, rule, or order can be
charged by the Attorney General with a Class 4 felony if that violation
causes death to any employee. 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 Illinois Plan does not include
an independent review authority for review of contested cases. Although
the Director has statutory responsibility for both the enforcement and
the appeals process, in practice, Administrative Law Judges hear
contested cases without any oversight or review by the Director. The
State will make appropriate changes to its regulations and procedures
to ensure the separation of these functions and the independence of the
adjudicatory process. The Director of Labor will remain responsible for
the enforcement process, including the 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 an Administrative Law Judge (ALJ)
on behalf of the Director. Any public employee or representative may
within 15 working days request a hearing before an ALJ regarding the
reasonableness of the abatement period. Informal review prior to
contest may also be requested at the division level. The ALJ's decision
is subject to appeal to the courts.
The State has a currently authorized staff of eight safety and
three health compliance officers who, in addition to inspections, also
perform duties equivalent to OSHA's on-site consultation program. The
Illinois Department of Commerce and Economic Development delivers
OSHA's On-Site Consultation program to private sector employers
throughout the State. The Plan provides assurances that within three
years no staff will have dual roles, and the State will have a fully
trained, adequate staff, of eleven safety and three health compliance
officers for enforcement inspections, and three safety and two health
consultants 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 employees 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 employee
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 $1,500,000 for a total initial program effort of $3 million.
Although the State Acts set forth the general authority and scope
for implementing the Illinois Public Employee 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 adoption of standards and the revision of
regulations governing enforcement, consultation, variances, contested
cases, employee access to information, and recordkeeping. Other
developmental aspects include hiring and training of staff,
participation in OSHA's management information system, development of a
Field Operations Manual and all other implementing policies, procedures
and instruction necessary for the operation of an effective program.
The State has extensively revised its initial State Plan submission to
address a number of issues which were raised during the course of
Federal review of the Illinois Plan and that required further
clarification from the State.
D. Request for Public Comment and Opportunity To Request Hearing
Public comment on the Illinois Public Employee 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 August 10,
2009. Written submissions must clearly identify the issues that are
addressed and the positions taken with respect to each issue. The State
of Illinois will be afforded the opportunity to respond to each
submission. The Illinois Department of Labor must also publish
appropriate notice within the State of Illinois within 5 days of
publication of this notice, announcing OSHA's proposal to approve an
Illinois State Plan for Public Employees Only, contingent on the
availability of appropriated funds, and giving notice of the
opportunity for public comment.
Pursuant to 29 CFR 1902.39(f), interested persons may request an
informal hearing concerning the proposed initial State Plan approval.
Such requests also must be received on or before August 10, 2009 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. The
Assistant Secretary will decide within 30 days of the last day for
filing written views or comments and requests for a hearing whether the
objections raised are substantial and, if so, will publish notice of
the time and place of the scheduled hearing.
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, are 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
Illinois 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, the Illinois Safety
Inspection and Education Act has been in effect since 1961 and the
Illinois Health and Safety Act has been in effect since 1936, when the
State first established a safety and health program. Since 1985, the
Illinois program for public employees has been in operation under the
Illinois Department of Labor with State funding and most public sector
employers in the State, including small units of local government, 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 Illinois 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 Illinois initial approval decision
proposed today, and believes it is consistent with the principles and
criteria set forth in the Executive Order.
G. Authority and Signature
This document was prepared under the direction of Jordan Barab,
Acting Assistant Secretary of Labor for Occupational Safety and Health.
It is issued under Section 18 of the Occupational Safety and Health Act
of 1970 (29 U.S.C. 667), 29 CFR Parts 1956 and 1902, and Secretary of
Labor's Order No. 5-2007 (72 FR 31160).
Signed at Washington, DC, this 7th day of July 2009.
Jordan Barab,
Acting Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. E9-16379 Filed 7-9-09; 8:45 am]
BILLING CODE 4510-26-P
