[Federal Register Volume 80, Number 97 (Wednesday, May 20, 2015)][Proposed Rules]
[Pages 28890-28893]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-12154]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1956
[Docket No. OSHA-2015-0003]
Maine State Plan for State and Local Government Employers; Notice
of Submission; Proposal To Grant Initial State Plan Approval; Request
for Public Comment and Opportunity To Request Public Hearing
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Proposed rule; request for written comments; notice of
opportunity to request informal public hearing.
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SUMMARY: This document gives notice of the submission by the Maine
Department of Labor of a developmental State Plan for occupational
safety and health, applicable only to public sector employment
(employees of the State and its political subdivisions), for
determination of initial approval under Section 18 of the Occupational
Safety and Health Act of 1970 (the "Act"). OSHA is seeking written
public comment on whether or not initial State Plan approval should be
granted and offers an opportunity to interested persons to request an
informal public hearing on the question of initial State Plan approval.
Approval of the Maine State and Local Government Only State Plan will
be contingent upon a determination that the Plan meets, or will meet
within three years, OSHA's Plan approval criteria and the availability
of funding as contained in the Department of Labor's Fiscal Year 2015
budget.
DATES: Comments and requests for a hearing must be submitted by June
19, 2015.
ADDRESSES: Written comments: Submit comments, identified by docket
number OSHA-2015-0003, by any of the following methods:
Electronically: Submit comments and attachments electronically at
http://www.regulations.gov, which is the Federal eRulemaking Portal.
Follow the instructions on-line for making electronic submissions; or
Fax: If your submission, including attachments, does not exceed 10
pages, you may fax them to the OSHA Docket Office at (202) 693-1648; or
U.S. mail, hand delivery, express mail, messenger or courier
service: Submit your comments and attachments to the OSHA Docket
Office, Docket Number OSHA-2015-0003, U.S. Department of Labor, Room N-
2625, 200 Constitution Avenue NW., Washington, DC 20210; telephone
(202) 693-2350 (OSHA's TTY number is (877) 889-5627). Deliveries (hand,
express mail, messenger and courier service) are accepted during the
Department of Labor's and Docket Office's normal business hours, 8:15
a.m.-4:45 p.m., EDT.
Instructions for submitting comments: All submissions must include
the docket number (Docket No. OSHA-2015-0003) for this rulemaking.
Because of security-related procedures, submission by regular mail may
result in significant delay. Please contact the OSHA Docket Office for
information about security procedures for making submissions by hand
delivery, express mail and messenger or courier service. All comments,
including any personal information you provide, are placed in the
public docket without change and will be made available online at
http://www.regulations.gov. Therefore, OSHA cautions you about
submitting personal information such as social security numbers and
birthdates.
Docket: To read or download submissions in response to this Federal
Register notice, go to docket number OSHA-2015-0003, at
http://www.regulations.gov. All submissions are listed in the
http://www.regulations.gov index, however some information (e.g.,
copyrighted material) is not publicly available to read or download
through that Web page. All submissions, including copyrighted material,
are available for inspection at the OSHA Docket Office. Electronic
copies of this Federal Register document as well as copies of the
proposed Maine State and Local Government Only State Plan narrative are
available at http://www.regulations.gov. This document, as well as news
releases and other relevant information, is available at OSHA's Web
page at http://www.osha.gov. are available at OSHA's Web page at
http://www.osha.gov. A copy of the documents referenced in this notice may
also be obtained from the OSHA Docket Office, at the address above.
FOR FURTHER INFORMATION CONTACT:
For press inquiries: Contact Francis Meilinger, Office of
Communications, Room N-3647, OSHA, U.S. Department of Labor, 200
Constitution Avenue NW., Washington, DC 20210; Telephone (202) 693-
1999; email meilinger.francis2@dol.gov.
For general and technical information: Contact Douglas J.
Kalinowski, Director, OSHA Directorate of Cooperative and State
Programs, Room N-3700, U.S. Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210, telephone (202) 693-2200; email:
kalinowski.doug@dol.gov.
SUPPLEMENTARY INFORMATION:
A. Background
Section 18 of the Occupational Safety and Health Act of 1970 (the
"Act"), 29 U.S.C. 667, provides that a State which desires to assume
responsibility for the development and enforcement of standards
relating to any occupational safety and health issue with respect to
which a Federal standard has been promulgated may submit a State Plan
to the Assistant Secretary of Labor for
Occupational Safety and Health ("Assistant Secretary") documenting
the proposed program in detail. Regulations promulgated pursuant to the
Act at 29 CFR part 1956 provide that a State may submit a State Plan
for the development and enforcement of occupational safety and health
standards applicable only to employers of the State and its political
subdivisions ("public employers"). Under these regulations the
Assistant Secretary will approve a State Plan for public employers if
the Plan provides for the development and enforcement of standards
relating to hazards in employment covered by the Plan which are or will
be at least as effective in providing safe and healthful employment and
places of employment as standards promulgated and enforced under
Section 6 of the Act, giving due consideration to differences between
public and private sector employment. In making this determination the
Assistant Secretary will consider, among other things, the criteria and
indices of effectiveness set forth in 29 CFR part 1956, subpart B.
State and local government workers are excluded from Federal OSHA
coverage under the Act.
B. Maine State Plan History
Since 1971, the Maine Department of Labor, Bureau of Labor
Standards (Bureau), has adopted standards and performed inspections in
the public sector (State, county, and municipal employers) as outlined
under the provisions of the State's existing enabling legislation:
Maine Revised Statutes, Title 26: Labor and Industry. Maine began
working on a State and Local Government Only State Plan in 2012 and
submitted a draft Plan to OSHA in February of 2013. OSHA's review
findings were detailed in various memoranda and other documents. OSHA
determined that the Maine statutes, as structured, and the proposed
State Plan necessitated changes in order to meet the State and Local
Government Only State Plan approval criteria in 29 CFR 1956. Maine
formally submitted a revised Plan applicable only to public employers
for Federal approval on May 2, 2013. Over the next several months, OSHA
worked with Maine in identifying areas of the proposed Plan which
needed to be addressed or required clarification. In response to
Federal review of the proposed State Plan, supplemental assurances, and
revisions, corrections and additions to the Plan were submitted on
September 4, 2013 and November 7, 2014. Further modifications were
submitted by the State on December 19, 2014. Amendments to Maine
Revised Statutes, Title 26 were proposed and enacted by the Maine
Legislature and signed into law by the Governor in 2014. The amended
legislation provides the basis for establishing a comprehensive
occupational safety and health program applicable to the public
employers in the State. The revised Plan has been found to be
conceptually approvable as a developmental State Plan.
The Act provides for funding of up to 50% of the State Plan costs,
but longstanding language in OSHA's appropriation legislation further
provides that OSHA must fund "* * * no less than 50% of the costs . .
. required to be incurred" by an approved State Plan. Such Federal
funds to support the State Plan must be available prior to State Plan
approval. The Fiscal Year 2015 Omnibus Appropriations Act includes
$400,000 in additional OSHA State Plan grant funds to allow for
Department of Labor approval of a Maine State Plan. After an
opportunity for public comment and a hearing, should one be requested,
the Assistant Secretary will approve the Maine State and Local
Government Only State Plan if it is determined that the Plan meets the
criteria set forth in the Act and applicable regulations at 29 CFR part
1956, subpart B. The approval of a State Plan for state and local
government employers in Maine is not a significant regulatory action as
defined in Executive Order 12866.
C. Description of the Maine State Plan
The Plan designates the Maine Department of Labor as the State
agency responsible for administering the Plan throughout the State.
Under the Plan's legislation, Title 26 of the Maine Revised Statutes,
the Maine Department of Labor has full authority to adopt standards and
regulations (through the Board of Occupational Safety and Health) and
enforce and administer all laws and rules protecting the safety and
health of employees of the State and its political subdivisions. Maine
will adopt State standards identical to Federal occupational safety and
health standards (with minor exceptions) as promulgated through March
30, 2015. The Plan also provides that future OSHA standards and
revisions will be adopted by the State within six months of Federal
promulgation (30 days for any emergency temporary standard) in
accordance with the requirements at 29 CFR 1953.5. Title 26, Chapter 6,
Section 571 of the Maine Revised Statutes includes provisions for the
granting of permanent and temporary variances from State standards to
public employers in terms substantially similar to the variance
provisions contained in the Act. Variances may not be granted unless it
is established that adequate protection is afforded employees under the
terms of the variance. Title 26, Chapter 6, Section 566 and Chapter 3,
Section 44 of the Maine Revised Statutes provides for inspections of
covered workplaces. Title 26, Chapter 3, Subsection 50 provides for
inspections in response to employee complaints. If a determination is
made that an employee complaint does not warrant an inspection, the
complainant will be notified in writing of such determination.
Additionally, Section 44-A of Chapter 3 provides the opportunity for
employer and employee representatives to accompany an inspector during
an inspection for the purpose of aiding in the inspection. The Plan in
Title 26, Chapter 3, Sections 42-B and 45, provides for notification to
employees of their protections and obligations under the Plan by such
means as a State poster, required posting of notices of violation, etc.
Title 26, Chapter 6, subsection 570 provides for protection of
employees against discharge or discrimination resulting from exercise
of their rights under the State Acts in terms essentially identical to
Section 11(c) of the Federal Act. The Plan also includes provisions for
right of entry for inspection, prohibition of advance notice of
inspection, and employers' obligations to maintain records and provide
reports as required.
Section 46 of Title 26 contains authority for a system of first
instance monetary penalties, and the State's intent is to issue
monetary penalties for serious violations. The State has discretionary
authority for civil penalties of up to $1,000 per day the violation
continues for repeat and willful violations. Serious and other-than-
serious violations may be assessed a penalty of up to $1,000 per
violation and failure-to-correct violations may be assessed a penalty
of up to $1,000 per day. In addition, criminal penalties can be issued
to public employers who willfully violate any standard, rule or order.
The Plan provides a scheme of enforcement for compelling compliance
under which public employers are issued citations for any violation of
standards. These citations must describe the nature of the violation,
including reference to the standard, and fix a reasonable time for
abatement. The Maine Plan includes the Board of Occupational Safety and
Health (Board), which adopts standards, and also is an independent
review authority for review of contested cases. The Director of the
Bureau will remain responsible for the enforcement process, including
the issuance of citations and penalties, and their defense, if contested.
Public employers or their representatives who receive a citation or a
proposed penalty may within 15 working days contest the citation,
proposed penalty and/or abatement period and request a hearing before
the Board. Any public employee or representative aggrieved by a
citation or proposed penalty may within 15 working days request a
hearing before the Board. Employers may also request informal review of
penalties with the Bureau if the employer agrees to abate the cited
hazard. The Board's decision is subject to appeal to the courts.
The State currently has a staff of two safety compliance officers
and zero health compliance officers. The Bureau delivers OSHA's On-Site
Consultation program to private sector employers throughout the State.
Maine currently has a staff of three safety and two health consultants,
who perform duties equivalent to OSHA's On-Site Consultation program,
for state and local government employers. Currently, for these
employers, if the state receives a health complaint, a consultant will
accompany and assist the enforcement officer. The Plan provides
assurances that within six months no staff will have dual roles, and
the State will have a fully trained, adequate staff of two safety
compliance officers and one health compliance officer for enforcement
inspections, and three safety consultants and one health consultant to
perform consultation services in the public sector. As new staff
members are hired they will perform either enforcement or consultation
functions. 29 CFR 1956.10(g) requires that State Plans for public
employers provide a sufficient number of adequately trained and
qualified personnel necessary for the enforcement of standards. The
compliance staffing requirements (or benchmarks) for State Plans
covering both the private and public sectors are established based on
the "fully effective" test established in AFL-CIO v. Marshall, 570
F.2d 1030 (D.C. Cir. 1978). This staffing test, and the complicated
formula used to derive benchmarks for complete private/public sector
Plans, is not intended, nor is it appropriate, for application to the
staffing needs of public employer only Plans. However, the State has
given satisfactory assurance in its Plan that it will meet the staffing
requirements of 29 CFR 1956.10. The State has also given satisfactory
assurances of adequate State matching funds (50%) to support the Plan
and is requesting initial Federal funding of $400,000 for a total
initial program effort of $800,000. Although the State statute sets
forth the general authority and scope for implementing the Maine State
and Local Government Only State Plan, the Plan is developmental under
the terms of 29 CFR 1956.2(b), in that specific rules, regulations, and
implementing procedures must still be adopted or revised to carry out
the Plan and make it structurally "at least as effective" as Federal
OSHA and fully operational. The Plan sets forth a timetable for the
accomplishment of these and other developmental goals within three
years of Plan approval. This timetable addresses such general areas as
the minor revision of existing legislation and development of
procedures for the on-site public sector consultation program. Other
developmental aspects include hiring and training of staff,
participation in OSHA's Information System (OIS), development of a
Field Operations Manual, development of an Annual Performance Plan and
a Five-Year Strategic Plan and all other implementing policies,
procedures, regulations and instruction necessary for the operation of
an effective program.
D. Request for Public Comment and Opportunity To Request Hearing
Public comment on the Maine State and Local Government Only State
Plan is hereby requested. Interested persons are invited to submit
written data, views, and comments with respect to this proposed initial
State Plan approval. These comments must be received on or before June
19, 2015. Written submissions must clearly identify the issues that are
addressed and the positions taken with respect to each issue. The State
of Maine will be afforded the opportunity to respond to each
submission. The Maine Department of Labor must also publish appropriate
notice within the State of Maine within five days of publication of
this notice, announcing OSHA's proposal to approve a Maine State and
Local Government Only State Plan, contingent on the availability of
appropriated funds, and giving notice of the opportunity for public
comment. Pursuant to 29 CFR 1902.13(f), interested persons may request
an informal hearing concerning the proposed initial State Plan
approval. Such requests also must be received on or before June 19,
2015 and may be submitted electronically, by facsimile, or by regular
mail, hand delivery, express mail, messenger or courier service, as
indicated under ADDRESSES above. Such requests must present
particularized written objections to the proposed initial State Plan
approval. Within 30 days of the close of the comment period, the
Assistant Secretary will review all comments submitted; will review all
hearing requests; and will schedule an informal hearing if a hearing is
required to resolve substantial issues. The Assistant Secretary will,
within a reasonable time after the close of the comment period or after
the certification of the record if a hearing is held, publish a
decision in the Federal Register. All written and oral submissions, as
well as other information gathered by OSHA, will be considered in any
action taken. The record of this proceeding, including written comments
and requests for hearing, and all materials submitted in response to
this notice and at any subsequent hearing, will be available at
http://www.regulations.gov or the OSHA Docket Office at the address above.
E. Regulatory Flexibility Act
OSHA certifies pursuant to the Regulatory Flexibility Act of 1980
(5 U.S.C. 601 et seq.) that the proposed initial approval of the Maine
State Plan will not have a significant economic impact on a substantial
number of small entities. By its own terms, the Plan will have no
effect on private sector employment, but is limited to the State and
its political subdivisions. Moreover, Title 26, Labor and Industry, of
the Maine Revised Statutes, was enacted in 1971. This legislation
established the Board, whose purpose is to formulate rules that shall,
at a minimum, conform with federal standards of occupational safety and
health, so the state program could eventually be approved as State and
Local Government Only State Plan. Since 1971 the Maine program for
public employers has been in operation under the Maine Department of
Labor with State funding and all state and local government employers
in the State have been subject to its terms. Compliance with State OSHA
standards is required by State law; Federal approval of a State Plan
imposes regulatory requirements only on the agency responsible for
administering the State Plan. Accordingly, no new obligations would be
placed on public sector employers as a result of Federal approval of
the Plan.
F. Federalism
Executive Order 13132, "Federalism," emphasizes consultation
between Federal agencies and the States and establishes specific review
procedures the Federal government must follow as it carries out
policies which affect state or local governments. OSHA has consulted
extensively with Maine throughout the development, submission and
consideration of its proposed State Plan. Although OSHA has determined
that the requirements and consultation procedures provided in Executive
Order 13132 are not applicable to initial approval decisions under the
Act, which have no effect outside the particular State receiving the
approval, OSHA has reviewed the Maine initial approval decision proposed
today, and believes it is consistent with the principles and criteria set
forth in the Executive Order.
Authority and Signature
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for
Occupational Safety and Health, U.S. Department of Labor, 200
Constitution Ave. NW., Washington, DC, authorized the preparation of
this notice. OSHA is issuing this notice under the authority specified
by Section 18 of the Occupational Safety and Health Act of 1970 (29
U.S.C. 667), Secretary of Labor's Order No. 1-2012 (77 FR 3912), and 29
CFR parts 1902 and 1956.
Signed in Washington, DC, on May 14, 2015.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2015-12154 Filed 5-19-15; 8:45 am]
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