[Federal Register: September 1, 2009 (Volume 74, Number 168)][Rules and Regulations] [Page 45107-45116]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01se09-4]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1956
[Docket No. OSHA-2009-0010]
RIN 1218-AC44
Notice of Initial Approval Determination; Illinois Public
Employee Only State Plan
AGENCY: Occupational Safety and Health Administration, Department of
Labor (OSHA).
ACTION: Final rule.
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SUMMARY: The Illinois Public Employee Only State Plan, a State
occupational safety and health plan applicable only to public sector
employees (employees of the State and its political subdivisions), is
approved as a developmental plan under the Occupational Safety and
Health Act of 1970 and OSHA regulations. Under the approved Plan, the
Illinois Department of Labor is designated as the State agency
responsible for the development and enforcement of occupational safety
and health standards applicable to public employment throughout the
State. The Occupational Safety and Health Administration (OSHA) retains
full authority for coverage of private sector employees in the State of
Illinois as well as for coverage of Federal government employees.
DATES: Effective Date: September 1, 2009.
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. Introduction
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"). State and local government workers are excluded from
Federal coverage under the Act and are provided protection only through
the vehicle of a State Plan approved pursuant to Section 18 of the Act.
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 OSH 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.
A State Plan for public employees may receive initial approval even
though, upon submission, it does not fully meet the criteria set forth
in Sec. Sec. 1956.10 and 1956.11, if it includes satisfactory
assurances by the State that it will take the necessary steps, and
establishes an acceptable developmental schedule, to meet the criteria
within a three year period (29 CFR 1956.2(b)). The Assistant Secretary
may publish a notice of "certification of completion of developmental
steps" when all of a State's developmental commitments have been met
satisfactorily (29 CFR 1956.23; 1902.33 and 1902.34) and the Plan is
structurally complete. After certification of a State Plan for public
employees, OSHA may initiate a period of at least one year of intensive
performance monitoring, after which OSHA may make a determination under
the procedures of Sec. Sec. 1902.38, 1902.39, 1902.40 and 1902.41 as
to whether, on the basis of actual operations, the criteria set forth
in Sec. Sec. 1956.10 and 1956.11 for "at least as effective" State
Plan performance are being applied under the Plan.
B. History of the Present Proceeding
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 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
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 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.
On July 10, 2009, OSHA published notice in the Federal Register (74
FR 33189) concerning the submission of the Illinois Public Employee
Only State Plan, announcing that initial Federal approval of the Plan
was at issue, and offering interested parties an opportunity to review
the Plan and submit data, views, arguments or requests for a hearing
concerning the Plan. The Illinois Department of Labor similarly
published notice of the availability of the State Plan for comment on
July 15, 2009 in the Daily Herald newspaper in Illinois.
To assist and encourage public participation in the initial
approval process, the documents constituting the Illinois State Plan
for Public Employees Only are available at http://www.regulations.gov
as Docket No. OSHA-2009-0010. Copies of the Illinois State Plan also
were maintained and are available for inspection in the OSHA Docket
Office, Technical Data Center, Room N-2625, OSHA, U.S. Department of
Labor, 200 Constitution Avenue, NW., Washington, DC 20210; OSHA's
Regional Office in Chicago, Illinois, at 230 South Dearborn Street,
32nd Floor, Room 3244, Chicago, IL 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, IL 62701;
160 North LaSalle Street, Suite C-1300, Chicago, IL 60601; or 2309
West Main Street, Suite 115, Marion IL 62959.
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.
C. Summary and Evaluation of Comments Received
In response to OSHA's July 10, 2009, Federal Register notice, which
announced the submission of the Illinois Public Employee Only State
Plan and its availability for public comment, nine (9) written public
comments were submitted by: (1) Mark Bishop, Deputy Director, Healthy
Schools Campaign (Document OSHA-2009-0010-0024); (2) Linda
Gibbons, Certified School Nurse, Illinois Association of School Nurses
(Document OSHA-2009-0010-0028); (3) Brenda McCracken and (4)
Patrick Genovese, President, Three Rivers Chapter of the American
Society of Safety Engineers (Document OSHA-2009-0010-0025 and
0026); (5) Lorraine M. Conroy, Associate Professor, Environmental and
Occupational Health Sciences, and eight other officials of the
University of Illinois, School of Public Health at Chicago (Document
OSHA-2009-0010-0029); (6) Symantha Aydt, School of Labor and
Employment Relations, University of Illinois (Document OSHA-
2009-0010-0030 and 0031); (7) Scott D. Miller, Counsel, American
Federation of State, County and Municipal Employees, Council 31,
Chicago, Illinois (Document OSHA-2009-0010-0032); (8) C.
Christopher Patton, President, American Society of Safety Engineers
(Document OSHA-2009-0010-0034); and (9) John T. Coli,
President, Teamsters Joint Council 25 (Document OSHA-2009-
0010-0035).
Mark Bishop, Deputy Director of the Healthy Schools Campaign
(exhibit 0024), expressed support for the Illinois PEO State Plan, in
particular IDOL's protection of the health and safety of school
teachers and staff.
Linda J. Gibbons, Certified School Nurse and member of the Illinois
Association of School Nurses (exhibit 0028), also expressed support for
the Illinois PEO State Plan.
The comments from Patrick Genovese, President, Three Rivers Chapter
of the American Society of Safety Engineers (ASSE) (exhibit 0026), as
transmitted by Brenda McCrackin (exhibit 0025), supported the State of
Illinois, for its "* * * intent to establish an Illinois Public
Employee Only State Plan", and the extension of such coverage to all
public employees either under Federal standards or through other non-
State Plan states following Illinois' example. In addition, Mr.
Genovese mentioned efforts ASSE members in Florida have taken to see
that public sector workers are protected and the successes that other
established State Plans have achieved.
The comments from Lorraine M. Conroy, Associate Professor of
Environmental and Occupational Health Sciences at the University of
Illinois at Chicago and eight other officials of the University of
Illinois, School of Public Health (exhibit 0029), supported approval of
the Illinois PEO State Plan. In addition, Ms. Conroy requested
clarification in the areas of coverage, the complaint process,
discrimination, rule making, penalties, and comprehensive safety and
health programs in order to assure that the Illinois program is as
effective, or more effective, than Federal OSHA.
Symantha Aydt of the School of Labor and Employment Relations at
the University of Illinois (exhibits 0030 and 0031) requested
clarifications in several areas, including methods for compelling
compliance, the State's voluntary compliance program, and coverage of
prisoners and volunteers.
Scott D. Miller, Counsel, American Federation of State, County and
Municipal Employees (AFSCME), Council 31 (exhibit 0032), which
represents more than 75,000 State government public-service workers as
well as "thousands" of local government employees in Illinois,
supported approval of the Illinois PEO State Plan. However, Mr. Miller,
on behalf of AFSCME, requested that the State provide "a heightened
level of assurances" that it will provide adequate matching funds,
that its compliance officers will receive comprehensive training on
hazards in the public sector, that it consider expanded use of its
first-instance sanction authority, that the independence of its
Administrative Law Judges be assured through specific regulations and
separation from IDOL's legal department, that procedural rules be
developed to implement the right of employees and their representatives
to challenge the State's failure to enforce, and that IDOL undertake
outreach beyond its poster to inform public employees of their rights
and responsibilities under the Plan.
C. Christopher Patton, President, American Society of Safety
Engineers (exhibit 0034) on behalf of its 32,000 members nationwide and
1,400 members in Illinois, supported approval of the Illinois PEO State
Plan. Mr. Patton also supported the extension of such coverage to all
public employees either under Federal standards or through other non-
State Plan states following Illinois' example and mentioned efforts
ASSE members in Florida have taken to see that public sector workers
are protected.
John T. Coli, President, Teamsters Joint Council 25 (exhibit 0035)
supported approval of the Illinois PEO State Plan on behalf of the
Joint Council and the 22 local unions under its jurisdiction, who
collectively represent approximately 50,000 members in Illinois State
and municipal governments. Mr. Coli emphasized the need for adequate
assurances that Illinois will fund "a fully trained and adequate
staff," support for monetary penalties for failure to correct and
egregious violations, the importance of the independence of the
adjudicatory process, and workers' right to request a hearing regarding
the reasonableness of the abatement period.
Several of the commenters requested that the Plan extend coverage
to include safety and health protection of students and other non-
employee classes. Both Federal OSHA's and State Plans' jurisdiction is
statutorily limited to the working conditions of employees and does not
extend to coverage of the general public or of students. However, the
Illinois PEO State Plan extends coverage to students who are working,
such as teaching or research assistants in public colleges and
universities. Improved working conditions for public school employees
likely result in benefits for students as well.
OSHA has carefully considered the public comments and finds that
none of the commenters offered specific facts or observations that
would preclude approval of the Illinois State Plan or questioned
whether the plan meets the statutory and regulatory criteria for
initial approval as a developmental plan. All of the commenters listed
above indicated their support for OSHA approval of the Illinois Public
Employee Only State Plan. However, included in the public comment are
many useful suggestions for program clarifications and enhancements. OSHA
will require the State to address these issues as they develop the key
elements of their program during the next three years. No requests for
a public hearing were submitted.
D. Review Findings
As required by 29 CFR 1956.2 in considering the granting of initial
approval to a Public Employee Only State Plan, OSHA must determine
whether the State Plan meets or will meet the criteria in 29 CFR
1956.10 and the indices of effectiveness in 29 CFR 1956.11. Findings
and conclusions in each of the major State Plan areas addressed by 29
CFR 1956 are as follows:
(1) Designated Agency
Section 18(c)(1) of the OSH Act provides that a State occupational
safety and health program must designate a State agency or agencies
responsible for administering the Plan throughout the State (29 CFR
1956.10(b)(1)). The Plan must describe the authority and
responsibilities of the designated agency and provide assurance that
other responsibilities of the agency will not detract from its
responsibilities under the Plan (29 CFR 1956.10(b)(2)). The Illinois
Department of Labor is designated by the Illinois Safety Inspection and
Education Act [820 ILCS 220] and the Illinois Health and Safety Act
[820 ILCS 225] as the sole agency responsible for administering and
enforcing the public employee protection program in Illinois. The
Illinois Department of Labor, Safety Inspection and Education Division
is designated as the agency responsible for the Public Employee Only
State Plan. The Plan describes the authority of the Illinois Department
of Labor and its other responsibilities. (A separate agency, the
Illinois Department of Commerce and Economic Development delivers
OSHA's On-Site Consultation program to private sector employers
throughout the State.) (Illinois State Plan, pp. 1-3)
(2) Scope
Section 18(c)(6) of the OSH Act provides that the State, to the
extent permitted by its law, shall under its Plan establish and
maintain an effective and comprehensive occupational safety and health
program applicable to all employees of the State and its political
subdivisions. Only where a State is constitutionally precluded from
regulating occupational safety and health conditions in certain
political subdivisions may the State exclude such political subdivision
employees from further coverage (29 CFR 1956.2(c)(1)). Further, the
State may not exclude any occupational, industrial or hazard groupings
from coverage under its Plan unless OSHA finds that the State has shown
there is no necessity for such coverage (29 CFR 1956.2(c)(2)).
The scope of the Illinois State Plan includes any employee of the
State, including members of the General Assembly, members of the
various State commissions, persons employed by public universities and
colleges, and employees of counties, cities, townships, school
districts, municipal corporations, etc. No employees of any political
subdivision of the State or local government are excluded from the
Plan. However, the definition of public employee does not extend to
students or incarcerated or committed individuals in public
institutions, or volunteers, unless they receive benefits such as
health insurance or Workers' Compensation. The Illinois Department of
Labor will adopt all Federal OSHA occupational safety and health
standards, and the Plan excludes no occupational, industrial or hazard
grouping.
Consequently, OSHA finds that the Illinois Plan contains
satisfactory assurances that no employees of the State and its
political subdivisions are excluded from coverage, and the plan
excludes no occupational, industrial or hazard grouping. (Illinois
State Plan, p. 2)
(3) Standards
Section 18(c)(2) of the OSH Act requires State Plans to provide for
occupational safety and health standards which are at least as
effective as Federal OSHA standards. A State Plan for public employees
must therefore provide for the development or adoption of such
standards and must contain assurances that the State will continue to
develop or adopt such standards (29 CFR 1956.10(c); 1956.11(b)(2)(ii)).
A State may establish the same standards as Federal OSHA (29 CFR
1956.11(a)(1)), or alternative standards that are at least as effective
as those of Federal OSHA (29 CFR 1956.11(a)(2)). Where a State's
standards are not identical to Federal OSHA, they must meet the
following criteria: they must be promulgated through a procedure
allowing for consideration of all pertinent factual information and
participation of all interested persons (29 CFR 1956.11(b)(2)(iii));
must, where dealing with toxic materials or harmful physical agents,
assure employee protection throughout his or her working life (29 CFR
1956. 11(b)(2)(i)); must provide for furnishing employees appropriate
information regarding hazards in the workplace through labels, posting,
medical examinations, etc. (29 CFR 1956.11(b)(2)(vi)); and, must
require suitable protective equipment, technological control,
monitoring, etc. (29 CFR 1956.11(b)(2)(vii)).
In addition, the State Plan must provide for prompt and effective
standards setting actions for protection of employees against new and
unforeseen hazards, by such means as authority to promulgate emergency
temporary standards (29 CFR 1956.11(b)(2)(v)).
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. The procedures for State adoption of
Federal occupational safety and health standards include publication of
a first and second notice in the Illinois Register, opportunity for a
public hearing, notification to the Joint Committee on Administrative
Rules, etc., in accordance with the Illinois Administrative Procedures
Act [5 ICLS 100]. 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 in accordance with the
requirements at 29 CFR 1953.5.
Under the Plan, the Illinois Department of Labor has the authority
to adopt alternative or different occupational safety and health
standards where no Federal standards are applicable or where more
stringent standards are deemed advisable. Such standards will be
adopted in accordance with the State Acts and the Illinois
Administrative Procedures Act, which include provisions allowing
submissions from interested persons and the opportunity to participate
in any hearing for the development, modification or establishment of
standards. (Illinois State Plan, pp. 4-6)
The Illinois State Plan also provides for the adoption of Federal
emergency temporary standards within 30 days of Federal promulgation.
(Illinois State Plan pp. 5-6)
Based on the preceding Plan provisions, assurances, and
commitments, OSHA finds the Illinois State Plan to have met the
statutory and regulatory requirements for initial plan approval with
respect to occupational safety and health standards.
(4) Variances
A State Plan must provide authority for the granting of variances
from State standards upon application of a public employer or employers
which corresponds to variances authorized under the OSH Act, and for
consideration of the views of interested parties, by such means as
giving affected employees notice of each application and an opportunity
to request and participate in hearings or other appropriate proceedings
relating to applications for variances (29 CFR 1956.11(b)(2)(iv)).
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. However, the State's variance
procedures at 56 ILAC 350.40 require revision. The State has provided
assurances in its developmental schedule that within two years of
initial plan approval it will amend its regulations to reflect variance
provisions equivalent to those contained in the Federal 29 CFR 1905.
(Illinois State Plan pp. 7-8 and 19)
(5) Enforcement
Section 18(c)(2) of the OSH Act and 29 CFR 1956.10(d)(1) require a
State Plan to include provisions for enforcement of State standards
which are or will be at least as effective in providing safe and
healthful employment and places of employment as the Federal program,
and to assure that the State's enforcement program for public employees
will continue to be at least as effective as the Federal program in the
private sector.
(a) Legal Authority. The State must require public employer and
employee compliance with all applicable standards, rules and orders (29
CFR 1956.10(d)(2)) and must have the legal authority for standards
enforcement (section 18(c)(4)), including compulsory process (29 CFR
1956.11(c)(2)(viii)).
Section 3 of the Illinois Health and Safety Act [820 ILCS 225/3]
establishes the duty of public employers to provide a place of
employment free of recognized hazards, to comply with the Illinois
Department of Labor's occupational safety and health standards, to
inform employees of their protections and obligations and provide
information on hazards in the workplace. Public employees must comply
with all standards and regulations applicable to their own actions and
conduct.
(b) Inspections. A State Plan must provide for inspection of
covered workplaces, including in response to complaints, where there
are reasonable grounds to believe a hazard exists (29 CFR
1956.11(c)(2)(i)).
When no compliance action results from inspection of violations
alleged by employee complaints, the State must notify the complainant
of its decision not to take compliance action by such means as written
notification and opportunity for informal review (29 CFR
1956.11(c)(2)(iii)).
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,
by the Director of Labor. If a determination is made that an employee
complaint does not warrant an inspection, the complainant will be
notified in writing of such determination. The complainant will be
notified of the results of any inspection in writing and provided a
copy of any citation that is issued. Employee complainants may request
that their names not be revealed. (Illinois State Plan, pp. 10-11)
(c) Employee Notice and Participation in Inspection. In conducting
inspections, the State Plan must provide an opportunity for employees
and their representatives to point out possible violations through such
means as employee accompaniment or interviews with employees (29 CFR
1956.11(c)(2)(ii)).
The Illinois Safety Inspection and Education Act provides the
opportunity for employer and employee representatives to accompany a
Department of Labor inspector for the purpose of aiding the inspection.
Where there is no authorized employee representative, the inspectors
are required to consult with a reasonable number of employees
concerning matters of safety and health in the workplace. (820 ILCS
220/2(b)(6))
In addition, the State Plan must provide that employees be informed
of their protections and obligations under the Act by such means as the
posting of notices (29 CFR 1956.11(c)(2)(iv)); and provide that
employees have access to information on their exposure to regulated
agents and access to records of the monitoring of their exposure to
such agents (29 CFR 1956.11(c)(2)(vi)).
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. The State has
provided assurances in its developmental schedule to update and submit
the State poster for posting at all public sector workplaces in the
State within one year of initial plan approval. (Illinois State Plan,
p. 20)
Section 2.5 of the Illinois Safety Inspection and Education Act
authorizes the Director of Labor to issue rules requiring employers to
maintain accurate records of employee exposures to potentially toxic
materials or harmful physical agents. Information on employee exposure
to regulated agents, access to medical and exposure records, and
provision and use of suitable protective equipment is provided through
State standards which will be updated within one year of plan approval.
(Illinois State Plan, p. 13; p. 19)
(d) Nondiscrimination. A State is expected to provide appropriate
protection to employees against discharge or discrimination for
exercising their rights under the State's program, including provision
for employer sanctions and employee confidentiality (29 CFR
1956.11(c)(2)(v)).
Section 2.2 of the Illinois Safety Inspection and Education Act
[820 ILCS 220] provides that a person may not discharge or in any other
way discriminate against any employee because the employee has filed a
complaint or instituted or caused to be instituted any proceeding under
or related to the Acts or has testified or is about to testify in any
such proceeding or because of the exercise by the employee on behalf of
himself or herself or others of any right afforded by the State Acts.
The SIEA provides that an employee who believes that he or she has
been discharged or otherwise discriminated against by any person in
violation of this section may, within 30 calendar days after the
violation occurs, file a complaint with the Director of Labor alleging
the discrimination. The Plan provides that the Director shall
investigate such complaints as appropriate and make a determination
within 90 days. If the Director determines that the provisions of this
section have been violated, the Director shall bring an action in the
circuit court for appropriate relief. (820 ILCS 220/2.2 and Illinois
State Plan, p.11)
The Illinois State Plan 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.
(e) Restraint of Imminent Danger. A State Plan is required to
provide for the prompt restraint of imminent danger situations (29 CFR
1956.11(c)(2)(vii)).
Section 2(b)(7)(B) of the Illinois Safety Inspection and Education
Act [820 ILCS 220] provides that the Director may file a complaint in
the circuit court for appropriate relief, by such means as an order to
cease and desist, to restrain any conditions or practices in the
workplace which the Director determines, in accordance with the State
Acts, are such that a danger exists which could reasonably be expected
to cause death or serious physical harm immediately or before the
danger could be eliminated through the enforcement process. (Illinois
State Plan, p. 10)
(f) Right of Entry; Advance Notice. A State program is required to
have authority for right of entry to inspect and compulsory process to
enforce such right equivalent to the Federal program (section 18(c)(3)
of the OSH Act and 29 CFR 1956.10(e)). Likewise, a State is expected to
prohibit advance notice of inspection, allowing exception thereto no
broader than in the Federal program (29 CFR 1956.10(f)).
Section 2(b)(3) of the Illinois Safety Inspection and Education Act
[820 ILCS 220] provides that the Director of Labor has the right to
inspect and investigate during regular working hours and at other
reasonable times, and within reasonable limits and in a reasonable
manner, any such place of employment and all pertinent conditions,
structures, machines, apparatus, devices, equipment, and materials
therein, and to question privately any such employer, agent or
employee.
Section 2.6(a) of the SIEA prohibits advance notice of inspections.
A person who gives advance notice of any inspection to be conducted
under the authority of this Act or the Health and Safety Act without
authority from the Director of Labor, or his or her authorized
representative, commits a Class B misdemeanor. (Illinois State Plan, p.
9)
(g) Citations, Sanctions, and Abatement. A State Plan is expected
to have authority and procedures for promptly notifying employers and
employees of violations, including proposed abatement requirements,
identified during inspection, for the proposal of effective first-
instance sanctions against employers found in violation of standards,
and for prompt employer notification of any such sanctions. In lieu of
monetary penalties as a sanction, a complex of enforcement tools and
rights, including administrative orders and employees' right to
contest, may be demonstrated to be as effective as monetary penalties
in achieving compliance in public employment (29 CFR 1956.11(c)(2)(ix)
and (x)).
The Illinois Safety Inspection and Education Act establishes the
authority and general procedures for the Director of Labor to promptly
notify public employers and employees of violations, abatement
requirements, and to compel compliance. The Director of Labor must
issue a written order to comply with reasonable promptness, which in no
case may be more than six months after the occurrence of any violation.
The SIEA provides that when an inspection of an establishment has been
made, and the Director of Labor has issued a citation, the employer
shall post such citation or a copy thereof at or near the location
where the violation occurred. Each citation shall be in writing;
describe with particularity the nature of the violation and include a
reference to the provision of the Act, standard, rule, regulation, or
order alleged to have been violated; and fix a reasonable time for the
abatement of the violation. (820 ILCS 220/2.3)
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. (Illinois State Plan, p. 11-12)
The State has given an assurance that it will revise its
regulations regarding inspections, citations, and proposed penalties to
be equivalent to 29 CFR 1903 within two years of plan approval.
(Illinois State Plan, p. 19)
(h) Contested Cases. A State Plan must have authority and
procedures for employer contest of violations alleged by the State,
penalties/sanctions and abatement requirements at full administrative
or judicial hearings. Employees must also have the right to contest
abatement periods and the opportunity to participate as parties in all
proceedings resulting from an employer's contest (29 CFR
1956.11(c)(2)(xi)).
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. (Illinois
State Plan, pp. 12-13)
Although the Illinois Plan does not include an independent
authority for review of contested cases, and the Director technically
has statutory responsibility for both the enforcement and the appeals
process (820 ILCS 220/2.4), in practice, Administrative Law Judges hear
contested cases without any oversight or review by the Director. ALJ's
decisions are subject to judicial review under the Illinois
Administrative Review Law. (56 ILCS 350.120). Within one year of plan
approval, 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.
The State's developmental schedule also includes an assurance that
it will revise its regulations regarding the review system for
contested cases to be equivalent to 29 CFR 2200 within two years of
plan approval. (Illinois State Plan, p. 19)
(i) Enforcement Conclusion. Accordingly, OSHA finds that the
enforcement provisions of the Illinois State Plan as described above
meet or will meet the statutory and regulatory requirements for initial
State Plan approval.
(6) Staffing and Resources
Section 18(c)(4) of the OSH Act requires State Plans to provide the
qualified personnel necessary for the enforcement of standards. In
accordance with 29 CFR 1956.10(g), one factor which OSHA must consider
in considering a plan for initial approval is whether the State has or
will have a sufficient number of adequately trained and competent
personnel to discharge its responsibilities under the plan.
The Illinois State Plan (p. 17; pp. 19-20) provides assurances of a
fully trained, adequate staff, including 11 safety and 3 health
compliance officers for enforcement inspections, and 3 safety and 2
health consultants to provide consultation, training and education
services in the public sector. The State has a currently authorized
staff of 8 safety and 3 health compliance officers who, in addition to
inspections, also perform duties equivalent to OSHA's on-site
consultation program. The Plan provides assurances that within three
years of plan approval no staff will have dual roles, and the State
will have a fully trained, adequate, and separate staff of compliance
officers for enforcement inspections, and consultants to perform
consultation services in the public sector. As new staff members are
hired they will perform either enforcement or consultation functions.
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 (DC Cir. 1978). This staffing test, and the complicated
formula used to derive benchmarks for complete private/public sector
Plans, are not intended, nor are they 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
requirements of 29 CFR 1956.10 for an adequately trained and qualified
staff sufficient for the enforcement of standards. (Illinois State
Plan, p. 17; pp. 19-20)
Section 18(c)(5) of the OSH Act requires that the State Plan devote
adequate funds for the administration and enforcement of its standards
(29 CFR 1956.10(h)). Illinois has funded its public employee safety and
health program since 1985 solely utilizing State funds. The State Plan
will be funded at $3 million ($1.5 million Federal 50% share and $1.5
million State 50% matching share) during Federal Fiscal Year 2009.
Accordingly, OSHA finds that the Illinois State Plan has provided
for sufficient, qualified personnel and adequate funding for the
various activities to be carried out under the Plan.
(7) Records and Reports
State Plans must assure that employers in the State submit reports
to the Assistant Secretary in the same manner as if the Plan were not
in effect (section 18(c)(7)) of the OSH Act). Under a public employee
State Plan, public employers must maintain records and make reports on
occupational injuries and illnesses in a manner similar to that
required of private sector employers under the OSH Act and 29 CFR
1956.10(i). The Plan must also provide assurances that the designated
agency will make such reports to the Assistant Secretary in such form
and containing such information as he or she may from time to time
require (section 18(c)(8) of the OSH Act and 29 CFR 1956.10(j)).
Illinois has provided assurances in its State Plan (p. 19) that all
jurisdictions covered by the State Plan will maintain valid records and
make timely reports on occupational injuries and illnesses, as required
for private sector employers under the OSH Act. Specific regulations on
this aspect of the State Plan will be submitted by Illinois in accord
with its developmental schedule, in which the State has agreed to adopt
amendments to regulations regarding recordkeeping equivalent to 29 CFR
1904 within two years of plan approval.
Illinois has also provided assurance in its State Plan (p. 20) that
it will coordinate with the Illinois Department of Public Health and
the Bureau of Labor Statistics (BLS) to expand the current BLS Annual
Survey of Injuries and Illnesses in the State to provide more detailed
injury, illness, and fatality rates for the public sector within two
years of plan approval. Illinois will also provide reports to OSHA in
the desired form and participate in OSHA's Integrated Management
Information System as well as OSHA's Information System, once deployed.
(Illinois State Plan p. 16; p. 20)
OSHA finds that the Illinois State Plan has met the requirements of
section 18(c)(7) and (8) of the OSH Act on the employer and State
reports to the Assistant Secretary.
(8) Voluntary Compliance Program
A State Plan must undertake programs to encourage voluntary
compliance by employers by such means as conducting training and
consultation with employers and employees (29 CFR 1956.11(c)(2)(xii)).
The Illinois State Plan (pp. 13-14) provides that the State
Department of Labor will continue and expand educational programs for
public employees specifically designed to meet the regulatory
requirements and needs of the public employer. The Plan also provides
that consultation visits and training classes will be conducted at work
sites by request of the employer and will be tailored to the public
employer's concerns. In addition, public agencies are encouraged to
develop and maintain their own safety and health programs as an adjunct
to but not a substitute for the IDOL enforcement program.
Illinois will establish an on-site consultation program for the
public sector parallel to Illinois' existing private sector on-site
consultation program (under section 21(d) of the OSH Act) within three
years of plan approval, which includes establishing a public sector
consultation staff separate from enforcement. (Illinois State Plan, p.
19)
OSHA finds that the Illinois State Plan provides for the
establishment and administration of an effective voluntary compliance
program.
E. Decision
OSHA, after carefully reviewing the Illinois State Plan for the
development and enforcement of State standards applicable to State and
local government employees and the record developed during the above
described proceedings, has determined that the requirements and
criteria for initial approval of a developmental State Plan have been
met. The Plan is hereby approved as a developmental plan for public
employees only under section 18 of the Act and 29 CFR 1956. This
decision incorporates the requirements of the Act and of regulations
applicable to State Plans generally.
The initial approval of a State Plan for public employees in
Illinois is not a significant regulatory action as defined in Executive
Order 12866.
F. Regulatory Flexibility Act
OSHA certifies pursuant to the Regulatory Flexibility Act of 1980
(5 U.S.C. 601 et seq.) that the 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.
G. 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 today's Illinois initial approval decision,
and believes it is consistent with the principles and criteria set
forth in the Executive Order.
H. Effective Date
OSHA's decision granting initial Federal approval to the Illinois
State Plan for public employees only is effective September 1, 2009.
Although the State has had a program in effect for many years,
modification of the program will be required over the next three years
by today's decision. Federal 50% matching funds have been explicitly
provided in the U.S. Department of Labor's FY 2009 appropriation.
Notice of proposed initial approval of the plan was published in both
the Federal Register and in the Daily Herald newspaper in Illinois with
requests for comment. No comments opposing initial approval of the Plan
were received, and OSHA believes that no party is adversely affected by
initial approval of the Plan. OSHA therefore finds, pursuant to section
553(d) of the Administrative Procedures Act, that good cause exists for
making Federal approval of the Illinois Public Employee Only State Plan
effective upon publication in today's Federal Register.
I. 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 26th day of August 2009.
Jordan Barab,
Acting Assistant Secretary of Labor for Occupational Safety and Health.
List of Subjects in 29 CFR 1956
Administrative practice and procedure, Government employees,
Intergovernmental relations, Law enforcement, Occupational safety and
health.
For the reasons set out in the preamble, 29 CFR part 1956 is
amended as follows:
PART 1956--[AMENDED]
0
1. The authority citation for part 1956 is revised to read as follows:
Authority: Section 18 of the Occupational Safety and Health Act
of 1970, (29 U.S.C. 667), 29 CFR 1902, 1952, and 1955, and Secretary
of Labor's Order No. 5-2007 (72 FR 31160).
0
2. Subpart I is added to read as follows:
Subpart I--Illinois
Sec.
1956.80 Description of the plan as initially approved.
1956.81 Developmental schedule.
1956.82 [Reserved]
1956.83 [Reserved]
1956.84 Location of plan for inspection and copying.
Subpart I--Illinois
Sec. 1956.80 Description of the plan as initially approved.
(a) Authority and scope. The Illinois State Plan for Public
Employee Occupational Safety and Health received initial OSHA approval
on September 1, 2009. The Plan designates the Illinois Department of
Labor as the State agency responsible for administering the Plan
throughout the State. The Plan includes as enabling legislation the
Illinois Safety Inspection and Education Act (SIEA) [820 ILCS 220] and
the Illinois Health and Safety Act (HSA) [820 ILCS 225]. Under the
legislation, the State Director of Labor has full authority to adopt,
enforce and administer all laws and rules protecting the safety and
health of all employees of the State and its political subdivisions
under the Illinois Public Employee Only State Plan.
(b) Standards. Illinois has adopted State standards identical to
OSHA occupational safety and health standards promulgated through
September 30, 2005. The State Plan provides that these standards will
be updated within one year of plan approval and future OSHA standards
and revisions will be adopted by the State within six months of Federal
promulgation, in accordance with 29 CFR 1953.5. Any emergency temporary
standards will be adopted within 30 days of Federal adoption. The State
will adopt Federal OSHA standards in accordance with the provisions of
the Illinois Health and Safety Act [820 ILCS 225/4.1]. The Plan also
provides for the adoption of alternative or different occupational
safety and health standards by the Director of Labor, where no Federal
standards are applicable to the conditions or circumstances or where
standards more stringent than Federal are deemed appropriate.
(c) Variances. The Plan includes provisions for the granting of
permanent and temporary variances from State standards in terms
substantially similar to the variance provisions contained in the OSH
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. The State has committed to amend its current
variance procedures at 56 ILAC 350.40 to bring them into conformance
with Federal procedures at 29 CFR 1905 within two years of plan
approval.
(d) Employee notice and discrimination protection. The Plan
provides for notification to employees of their protections and
obligations under the Plan by such means as the State poster and
required posting of notices of violations. The Plan also provides for
protection of employees against discharge or discrimination resulting
from exercise of their rights under the State's Acts in terms similar
to section 11(c) of the OSH Act. The SIEA provides that an employee who
believes that he or she has been discharged or otherwise discriminated
against by any person in violation of this section may, within 30
calendar days after the violation occurs, file a complaint with the
Director of Labor alleging the discrimination. The Plan provides that
the Director shall investigate such complaints as appropriate and make
a determination within 90 days. If the Director determines that the
provisions of this section have been violated, the Director shall bring
an action in the circuit court for appropriate relief.
(e) Inspections and enforcement. The Plan provides for inspection
of covered workplaces, including inspections in response to employee
complaints by the Department of Labor. If a determination is made that an
employee complaint does not warrant an inspection, the complainant shall
be notified, in writing, of such determination and afforded an opportunity
to seek informal review of the determination. The Plan provides the
opportunity for employer and employee representatives to accompany the
inspector during an inspection for the purpose of aiding in the
inspection and in the absence of such a representative, the right to
interview a reasonable number of employees during the inspection. The
Plan also provides for the right of entry for inspection and
prohibition of advance notice of inspection. The Director of Labor is
responsible for all enforcement actions, including the issuance of all
citations which must specify the abatement period, posting
requirements, and the employer's and employees' right to contest any or
all citations. Although the Plan 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.
(f) Review procedures. Although the Director has statutory
responsibility for both the enforcement and the appeals process (820
ILCS 220/2.4), in practice, Administrative Law Judges (ALJ) 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 within one year of plan approval. 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. 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.
(g) Staffing and resources. The Plan further provides assurances of
a fully trained, adequate staff within three years of plan approval,
including 11 safety and 3 health compliance officers for enforcement
inspections, and 3 safety and 2 health consultants to perform
consultation services in the public sector. The State has assured that
it will continue to provide a sufficient number of adequately trained
and qualified personnel necessary for the enforcement of standards as
required by 29 CFR 1956.10. The State has also given satisfactory
assurance of adequate funding to support the Plan.
(h) Records and reports. The Plan provides that public employers in
Illinois will maintain appropriate records and make timely reports on
occupational injuries and illnesses in a manner substantially identical
to that required for private sector employers under Federal OSHA.
Illinois has assured that it will coordinate with the Illinois
Department of Health to expand its participation in the Bureau of Labor
Statistics Annual Survey of Injuries and Illnesses to include public
sector employers. The State will comply with the provisions of 29 CFR
1904.7, which allow full employee and employee representative access,
including employee's names, to the log of workplace injuries and
illnesses; and will amend its recordkeeping regulations within two
years of plan approval. The Plan also contains assurances that the
Director of Labor will provide reports to OSHA in such form as the
Assistant Secretary may require, and that Illinois will participate in
OSHA's Integrated Management Information System as well as it
successor, OSHA Information System, once deployed.
(i) Voluntary compliance programs. The Plan provides that training
will be provided to public employers and employees; a separate on-site
consultation program in the public sector will be established to
provide services to public employers who request assistance; and all
State agencies and political subdivisions will be encouraged to develop
and maintain internal safety and health programs as an adjunct to, but
not a substitute for, the Director of Labor's enforcement.
Sec. 1956.81 Developmental schedule.
The Illinois State Plan is developmental. The following is a
schedule of major developmental steps as provided in the Plan that will
be accomplished within three years of plan approval:
(a) Illinois will adopt standards identical to or at least as
effective as the applicable existing OSHA standards and revise the
Rules of Procedures in Administrative Hearings (56 ILAC 120),
clarifying the separation of the enforcement role of the Director of
Labor from the adjudicatory role in contested cases, within one year
after plan approval.
(b) Illinois will update and adopt amendments to the Illinois
Administrative Rules (56 ILAC 350) regarding identical standards,
variances, inspections, review system for contested cases and employee
access to information equivalent to 29 CFR parts 1903, 1905, 1911 and
2200 within two years after plan approval.
(c) Illinois will adopt amendments to rules regarding recordkeeping
substantially identical to 29 CFR part 1904 within two years after plan
approval.
(d) An annual performance plan will be developed and submitted with
the FY 2010 Grant Application. The performance plan will focus on
achievement of developmental steps and activity reporting until such
time as the program is fully operational, at which point objective,
results-oriented performance goals will be established.
(e) Illinois will develop an inspection scheduling system that
targets high hazard establishments within two years of plan approval.
(f) Illinois will develop a comprehensive field operations manual
that is at least as effective as the Federal Field Operations Manual
within two years after plan approval.
(g) Illinois will begin hiring critical program management staff
and filling current vacancy positions within 30 days of plan approval.
(h) Illinois will hire the additional Enforcement program field and
support staff within two years of plan approval.
(i) Illinois will fully implement and staff a public employer/
employee Consultation program equivalent to 29 CFR part 1908, and
training and education programs separate from Enforcement, within three
years after plan approval.
(j) Illinois will have an authorized compliance staff of 11 Safety
Inspectors and 3 Industrial Hygienists (non-supervisory) and a public
sector consultation staff of 3 Safety Consultants and 2 Industrial
Hygiene Consultants within three years of plan approval.
(k) Illinois and OSHA will develop a plan for joining the OSHA
Integrated Management Information System to report State plan activity,
including specific information on inspections, consultation visits,
etc., in conjunction with OSHA, within six months of plan approval.
Illinois will convert to the new OSHA Information System upon its
deployment. In the interim, Illinois will provide monthly reports on
its activity in an agreed upon format.
(l) Illinois will coordinate with the Illinois Department of Public
Health and the Bureau of Labor Statistics to expand the current
Illinois survey to provide more detailed injury/illness/fatality rates
on State and local government, within two years of plan approval.
(m) Illinois will revise and submit a State poster for posting at
all public sector workplaces in the State within one year of plan
approval.
Sec. 1956.82 [Reserved]
Sec. 1956.83 [Reserved]
Sec. 1956.84 Location of plan for inspection and copying.
A copy of the plan may be inspected and copied during normal
business hours at the following locations: Office of State Programs,
U.S. Department of Labor, Occupational Safety and Health
Administration, 200 Constitution Avenue, NW., Room N-3700, Washington,
DC 20210; OSHA's Regional Office in Chicago, Illinois, at 230 South
Dearborn Street, 32nd Floor, Room 3244, Chicago, IL 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, IL 62701; 160 North LaSalle Street, Suite C-1300, Chicago,
IL 60601; or 2309 West Main Street, Suite 115, Marion, IL 62959.
[FR Doc. E9-21044 Filed 8-31-09; 8:45 am]
BILLING CODE 4510-26-P
