[Federal Register Volume 80, Number 150 (Wednesday, August 5, 2015)]
[Rules and Regulations]
[Pages 46487-46492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18942]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1956
[Docket No. OSHA-2015-0003]
RIN 1218-AC97
Maine State Plan for State and Local Government Employers
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Notice of initial approval determination.
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SUMMARY: The Maine State and Local Government Only State Plan, a state
occupational safety and health plan applicable only to public sector
employment (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
Maine Department of Labor is designated as the state agency responsible
for the development and enforcement of occupational safety and health
standards applicable to state and local government employment
throughout the state. The Occupational Safety and Health Administration
(OSHA) retains full authority for coverage of private sector employees
in the State of Maine, as well as for coverage of federal government
employees.
DATES: Effective: August 5, 2015.
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. Introduction
Section 18 of the Occupational Safety and Health Act of 1970 (the
``OSH 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 OSH 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 State and Local Government Only 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
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 and Local Government Only State Plan may receive initial
approval even though, upon submission, it does not fully meet the
criteria set forth in 29 CFR 1956.10 and 1956.11, if it includes
satisfactory assurances by the state that the state 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 State and Local Government Only, 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 29 CFR
1902.38, 1902.39, 1902.40 and 1902.41 as to whether, on the basis of
actual operations, the criteria set forth in 29 CFR 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
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 reviewed the draft Plan and its
findings were detailed in various memoranda and other documents. OSHA
determined that the Maine statutes, as structured, and the proposed
State Plan needed 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 Title 26 of
the Maine Revised Statutes 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 OSH 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.
On May 20, 2015, OSHA published a notice in the Federal Register
(80 FR 28890) concerning the submission of the Maine State and Local
Government Only State Plan, announcing that initial federal approval of
the Plan was at issue, and offering interesting parties an opportunity
to review the Plan and submit data, views, arguments or requests for a
hearing concerning the Plan.
To assist and encourage public participation in the initial
approval process, the documents constituting the Maine State and Local
Government Only State Plan were and remain available at http://regulations.gov
as Docket No. OSHA-2015-0003. A copy of the Maine State
Plan was also maintained and is available for inspection in the OSHA
Docket Office, U.S. Department of Labor, Room N-2625, 200 Constitution
Avenue NW., Washington, DC 20210. This document, as well as news
releases and other relevant information, is available at OSHA's Web
page at: http://www.osha.gov.
C. Summary and Evaluation of Comments Received
No comments were received.
D. Review Findings
As required by 29 CFR 1956.2 in considering the grant of initial
approval to a State and Local Government 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 Maine
Department of Labor is designated by Title 26 of the Maine Revised
Statutes as the sole agency responsible for administering and enforcing
the State and Local Government Only State Plan in Maine. The Maine
Department of Labor, Bureau of Labor Standards is designated as the
sub-agency responsible for the State and Local Government Only State
Plan. The Plan describes the authority of the Maine Department of Labor
and its other responsibilities.
(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 Maine State Plan includes any employee of the
state, including, but not limited to members of the Maine State
Legislature, members of the various state commissions, persons employed
by public universities and colleges, and employees of counties, cities,
townships, school districts, and municipal corporations. Volunteers
under the direction of a public employer or other public corporation or
political subdivision will also be covered. No employees of any
political subdivision are excluded from the Plan. However, the
definition of public employee does not extend to students or
incarcerated or committed individuals in public institutions. The Maine
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 Maine State 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 (Maine State
Plan pp. 1-2).
(3) Standards
Section 18(c)(2) of the OSH Act requires State Plans to provide
occupational safety and health standards which are at least as
effective as federal OSHA standards. A State Plan for State and Local
Government Only 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 2956.11(a)(2)). Where a
state's standards are not identical to federal OSHA's, 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)); they must, where dealing with toxic materials or
harmful physical agents, assure employees protection throughout his or
her working life (29 CFR 1956.11(b)(2)(i)); they must provide for
furnishing employees appropriate information regarding hazards in the
workplace through labels, posting, medical examinations, etc. (29 CFR
1956.11(b)(2)(vii)); and, they 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, 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. The procedures for state adoption of federal occupational
safety and health standards include giving public notice, opportunity
for public comment, and opportunity for a public hearing, in accordance
with the Maine Administrative Procedures Act (Title 5, chapter 375 of
the Maine Revised Statutes). Maine has adopted state standards
identical to federal occupational safety and health standards as
promulgated through March 26, 2012 (General Industry) and November 8,
2010 (Construction). The State Plan includes a commitment to update all
standards by November 2016. 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 Maine Department of Labor (through the Board of
Occupational Safety and Health) has the authority to adopt alternative
or different occupational health and safety standards where no federal
standards are applicable to the conditions or circumstances or where
standards that are more stringent than the federal are deemed
advisable. Such standards will be adopted in accordance with Title 26
of the Maine Revised Statutes and the Maine Administrative Procedures
Act, which includes provisions allowing submissions from interested
persons and the opportunity for interested persons to participate in
any hearing for the development, modification or establishment of
standards (Maine State Plan p. 4).
The Maine State Plan also provides for the adoption of federal
emergency temporary standards within 30 days of federal promulgation
(Maine State Plan p. 4).
Based on the preceding Plan provisions, assurances, and
commitments, OSHA finds the Maine 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 application for variances (29 CFR 1956.11(b)(2)(iv)).
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
federal OSH Act. The state provisions require employee notification of
variance applications as well as employee rights to participate in
hearings held on variance applications. A variance may not be granted
unless it is established that adequate protection is afforded employees
under the terms of the variance.
The state has provided assurances in its developmental schedule
that by May 2016, it will adopt regulations equivalent to 29 CFR 1905,
OSHA's variance regulations, or provide a citation to currently
existing equivalent regulations (Maine State Plan pp. 5 and 13).
(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) of the OSH Act), including compulsory
process (29 CFR 1956.11(c)(2)(viii)). Title 26, Chapters 3 and 6 of the
Maine Revised Statutes establishes the duty of public employers to
provide a place of employment free of recognized hazards, to comply
with the Maine 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 the 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 an inspection of a violation
alleged by an employee complaint, 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)).
Title 26, Chapter 3, Sections 44 and 50 of the Maine Revised
Statutes provides for inspections of covered workplaces, including
inspections in response to employee complaints, by the Director of the
Bureau of Labor Standards. 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 (Maine State Plan pp. 5-7).
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)(iii)).
Title 26, Chapter 3, Section 44a of the Maine Revised Statutes
provides the opportunity for employer and employee representatives to
accompany a Bureau of Labor Standards 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 matter of safety and health
in the workplace (Maine State Plan p. 6).
In addition, the State Plan must provide that employees be informed
of their protections and obligations under the OSH Act by such means as
the posting of notices (29 CFR 1958.11(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)).
Through Title 26, Chapter 4, Sections 44 and 45 of the Maine
Revised Statutes, 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. (Maine
State Plan p.8).
Section 44 also authorizes the Director of Labor to issue rules
requiring employers to maintain accurate records relating to
occupational safety and health. 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 by November 2016 (Maine State Plan p.
3).
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)).
Title 26, Chapter 6, Section 570 of the Maine Revised Statutes
outlines the provisions that an employer cannot discharge or in any
manner discriminate against an employee filing a complaint, testifying,
or otherwise acting to exercise rights granted by the Maine Revised
Statutes.
The Plan provides that an employee who believes that he or she has
been discharged or otherwise discriminated against in violation of this
section may, within 30 days after the alleged violation occurs, file a
complaint with the Director of the Bureau, alleging discrimination. If,
upon investigation, the Director determines that the provisions of this
chapter have been violated, the Director shall bring an action in
Superior Court for all appropriate relief, including rehiring or
reinstatement of the employee to his or her former position with back
pay. Within 90 days of the receipt of a complaint filed under this
section, the Director shall notify the complainant of his or her
determination (Maine State Plan p. 7).
The state has provided assurances in its developmental schedule
that by May 2016, it will adopt regulations equivalent to 29 CFR 1977,
OSHA's whistleblower regulations, or provide a citation to currently
existing equivalent regulations (Maine State Plan p. 13).
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)).
Title 26, Chapter 3, Section 49 of the Maine Revised Statutes
provides that the Director may petition the Superior Court to restrain
any conditions or practices in any workplace subject to Section 45 in
which a danger exists which will reasonably be expected to cause death
or serious physical harm immediately or before the danger could be
eliminated through the enforcement process (Maine State Plan p. 6).
f. Right of Entry; Advance Notice. A state program is required to
have the right of entry to inspect workplaces 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)).
Title 26, Chapter 6, Section 566 of the Maine Revised Statutes
authorizes the Director of the Bureau, or his or her representatives,
to perform any necessary inspections or investigations. The Bureau
designates the Division of Workplace Safety and Health to carry out
these provisions. Title 26, Chapter 3, Section 44 provides that the
Director of the Bureau has the right to inspect and investigate during
regular working hours. The inspectors have the right of entry without
delay and at reasonable times. If the public employer refuses entry or
hinders the inspection process in any way, the inspector has the right
to terminate the inspection and initiate the compulsory legal process
and/or obtain a warrant for entry. The inspector has the right to
interview all parties and review records as they relate directly to the
inspection.
Title 26, Chapter 3, Section 46 of the Maine Revised Statutes
prohibits advance notice of inspections. Advance notice of any
inspection, without permission of the Director of the Bureau, is
subject to a penalty of not less than $500 or more than $1,000 or
imprisonment for not more than 6 months, or both (Maine State Plan p.
6),
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)).
Title 26, Chapter 3, Section 45 of the Maine Revised Statutes
establishes the authority and general procedures for the Director of
the Bureau to promptly notify public employers and employees of
violations and abatement requirements, and to compel compliance. If a
Bureau inspector believes that a violation of a safety and health
standard exists, he or she will issue a written citation report with
reasonable promptness. Section 45 provides that when an inspection of
an establishment has been made, and the Director of the Bureau 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 statute,
standard, rule, regulation, or order alleged to have been violated; and
fix a reasonable time for the abatement of the violation (Maine State
Plan p. 7).
Title 26, Chapter 3, Section 46 of the Maine Revised Statutes
contains authority for a system of monetary penalties. Monetary
penalties are issued for serious citations. The Director of the Bureau
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. An alternative enforcement mechanism that includes
administrative orders may be used in limited circumstances (Maine State
Plan p. 8).
The state has given an assurance that it will revise its Field
Operations Manual regarding inspections so that it, in conjunction with
the provisions of the Maine Revised Statutes, is at least as effective
as 29 CFR 1903 by January 2016 (Maine State Plan p. 13).
h. Contested Cases. A State Plan must have authority and procedures
for employer contests 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
2956.11(c)(2)(xi)).
Title 26, Chapter 6, Section 568 of the Maine Revised Statutes and
Code of Maine Rules 12-179, Chapter 1 establish the authority and
general procedures for employer contests of violations alleged by the
state, penalties/sanctions and abatement requirements. State and local
government employers or their representatives who receive a citation, a
proposed assessment of penalty, or a notification of failure to correct
a violation may within 15 working days from receipt of the notice
request in writing a hearing before the Board of Occupational Safety
and Health on the citation, notice of penalty or abatement period. Any
public employee or representative thereof may within 15 working days of
the issuance of a citation file a request in writing for a hearing
before the Board on whether the period of time fixed in the citation
for abatement is unreasonable. Informal reviews can be held at the
division management level prior to a formal contest (Maine State Plan
p. 8).
The Director of the Bureau will remain responsible for the
enforcement process, including the issuance of citations and penalties,
and their defense, if contested. All interested parties are allowed to
participate in the hearing and introduce evidence. The Board shall
affirm, modify, or vacate the citation or proposed penalty or direct
other appropriate relief. Any party adversely affected by a final order
or determination by the Board has the right to appeal and obtain
judicial review by the Superior Court (Maine State Plan p. 8).
Enforcement Conclusion. Accordingly, OSHA finds that the
enforcement provisions of the Maine 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 reviewing 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 Maine State Plan provides assurances of a fully trained,
adequate staff, including two safety officers and one health officer
for enforcement inspections, and three safety consultants and one
health consultant to provide consultation, training and education
services in the public sector. The Plan provides assurances that within
six months of plan approval 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. 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, are not intended, nor are they
appropriate, for application to the staffing needs of State and Local
Government 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 (Maine State Plan pp.11-12).
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)). Maine has funded its state government safety and
health program since 1972 solely utilizing state funds. The State Plan
will be funded at $800,000 ($400,000 federal 50% share and $400,000
state matching share) during federal Fiscal Year 2015.
Accordingly, OSHA finds that the Maine 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 State and Local
Government Only 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)).
Maine has provided assurances in its State Plan 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 (Maine State Plan pp. 9-
11). The records of occupational injuries and illnesses must be
completed and maintained in accordance with the applicable provisions
in Code of Maine Rules 12-179, Chapter 6 and Title 26, Chapter 3,
Section 44 of the Maine Revised Statutes. Title 26, Chapter 1, Section
2 of the Maine Revised Statutes provides the reporting requirements.
The state will provide a comparison of Code of Maine Rules 12-179,
Chapter 6 to the recordkeeping regulations contained in 29 CFR 1904 by
October 2015, and will amend Title 26, Chapter 1, Section 2 of the
Maine Revised Statutes in 2015, to ensure equivalency with 29 CFR 1904
in accord with its developmental schedule (Maine State Plan p. 13).
Maine has also provided assurances in its State Plan that it will
continue to participate in the Bureau of Labor Statistics's Annual
Survey of Injuries and Illnesses in the state to provide detailed
injury, illness, and fatality rates for the public sector. Maine will
also provide reports to OSHA in the desired form and will join the OSHA
Information System within 90 days of plan approval, including the
implementation of all hardware, software, and adaptations as necessary
(Maine State Plan p. 11).
OSHA finds that the Maine 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 Maine State Plan provides that the Bureau will continue to
provide and conduct educational programs for public employees
specifically designed to meet the regulatory requirements and needs of
the public employer. The Plan also provides that consultations,
including site visits, compliance assistance and training classes, are
individualized for each work site and 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 Bureau enforcement program (Maine State Plan p.
9).
The Bureau currently has a public sector on-site consultation
program. Maine will provide an outline of procedures for this program
to ensure equivalency with the regulations regarding consultation in 29
CFR 1908, or a timeline for their development by November 2016 (Maine
State Plan p. 13).
OSHA finds that the Maine State Plan provides for the establishment
and administration of an effective voluntary compliance program.
E. Decision
OSHA, after carefully reviewing the Maine State Plan for the
development and enforcement of state standards applicable to state and
local government employers 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 State Plan for
State and Local Government Only under Section 18 of the OSH Act.
In light of the pending reorganization of the State Plan
regulations through the streamlining of 29 CFR part 1952 and 29 CFR
part 1956, OSHA is deferring any change to those regulatory provisions
relating to the Maine State Plan until the streamlining changes take
effect. The change to the regulatory text will be accomplished through
a separate Federal Register Notice.
The initial approval of a State Plan for State and Local Government
Only in Maine 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 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 a 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.
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 that 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
OSH Act, which have no effect outside the particular state receiving
the approval, OSHA has reviewed today's Maine 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 Maine
State and Local Government Only State Plan is effective August 5, 2015.
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 OSHA's FY 2015 final appropriation. Notice of proposed
initial approval of the Plan was published in the Federal Register with
request for comment. No comments 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 Maine State and Local Government Only State Plan effective upon
publication in today's Federal Register.
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 July 28, 2015.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2015-18942 Filed 8-4-15; 8:45 am]
BILLING CODE 4510-26-P
