[Federal Register Volume 87, Number 77 (Thursday, April 21, 2022)]
[Proposed Rules]
[Pages 23783-23790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08424]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1952
[Docket No. OSHA-2021-0012]
RIN 1218-AD43
Arizona State Plan for Occupational Safety and Health; Proposed
Reconsideration and Revocation
AGENCY: Occupational Safety and Health Administration (OSHA), U.S.
Department of Labor.
ACTION: Proposed rule; request for written comments; notice of informal
public hearing.
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SUMMARY: On June 20, 1985, the Federal Occupational Safety and Health
Administration (OSHA) granted Arizona's occupational safety and health
plan (State Plan) final approval under Section 18(e) of the
Occupational Safety and Health Act of 1970 (the OSH Act). In this
notice, OSHA proposes to revoke its affirmative determination granting
final approval to the State Plan. If revocation is determined to be
appropriate, the Arizona State Plan will revert to initial approval and
Federal authority for discretionary concurrent enforcement would
resume, allowing Federal OSHA to ensure that private sector employees
in Arizona are receiving protections that are at least as effective as
those afforded to employees covered by Federal OSHA.
DATES:
Written comments: Comments and requests for a hearing must be
submitted by May 26, 2022.
Informal public hearing: Any interested person may request an
informal hearing concerning the proposed revocation. OSHA will hold
such a hearing if the Assistant Secretary of Labor for Occupational
Safety and Health (Assistant Secretary) finds that substantial
objections have been filed. To allow for this possibility, the agency
has tentatively scheduled an informal public hearing on this proposal,
beginning August 16, 2022, at 10:00 a.m., ET. If necessary, the hearing
will continue from 10:00 a.m. until 6:00 p.m., ET, on subsequent days.
The hearing will be held virtually on WebEx. Additional information on
how to access the informal hearing will be posted when available at
https://www.osha.gov/stateplans.
Stakeholders should be aware that if, after reviewing the comments
received during the written comment period, the Assistant Secretary
finds that no substantial objections have been filed, then this
informal public hearing will be cancelled. OSHA will provide notice in
advance of the hearing date if the public hearing will not be held.
Notice of intention to appear to provide testimony or question
witnesses at the hearing: Interested persons who intend to present
testimony or question witnesses at the hearing must submit a notice of
their intention to do so by May 11, 2022. Please note that a notice of
intention to appear at the hearing is not the same as a substantial
objection. To determine whether a substantial objection has been filed,
the Assistant
Secretary will consider the substance of the written comments
submitted.
Hearing testimony and documentary evidence: Interested persons who
request more than 5 minutes to present testimony or who intend to
submit documentary evidence at the hearing must submit the full text of
their testimony and all documentary evidence by May 26, 2022. See
``Public Participation'' below for details on how to file a notice of
intention to appear, submit documentary evidence at the hearing, and
request an appropriate amount of time to present testimony.
Publication in Arizona: No later than 10 days following the date of
publication of this notification in the Federal Register, Arizona shall
publish, or cause to be published, reasonable notice within the State
containing the same information contained herein.
ADDRESSES: Written comments. You may submit written comments and
requests for an informal hearing electronically at www.regulations.gov,
which is the Federal e-Rulemaking Portal. Follow the online
instructions for making electronic submissions.
Instructions. All submissions must include the agency's name and
the docket number for this rulemaking (Docket No. OSHA-2021-0012).\1\
All comments, including any personal information you provide, are
placed in the public docket without change and may be made available
online at www.regulations.gov. Therefore, OSHA cautions commenters
about submitting information they do not want made available to the
public or submitting materials that contain personal information
(either about themselves or others), such as Social Security Numbers
and birthdates. Submissions must clearly identify the issues addressed
and the positions taken.
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\1\ Documents submitted to the docket by OSHA or stakeholders
are assigned document identification numbers (Document ID) for easy
identification and retrieval. The full Document ID is the docket
number plus a unique four-digit code.
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Informal public hearing: The hearing, if necessary, will be held
virtually on WebEx.
Notice of intention to appear, hearing testimony, and documentary
evidence: You may submit your notice of intention to appear, hearing
testimony, and documentary evidence, identified by the agency's name
and the docket number (Docket No. OSHA-2021-0012) electronically at
www.regulations.gov. Follow the online instructions for making
electronic submissions.
Docket: To read or download comments or other material in the
docket, go to Docket No. OSHA-2021-0012 at www.regulations.gov. All
comments and submissions are listed in the www.regulations.gov index;
however, some information (e.g., copyrighted material) is not publicly
available to read or download through that website. All comments and
submissions, including copyrighted material, are available for
inspection through the OSHA Docket Office. Contact the OSHA Docket
Office at (202) 693-2350 (TTY number: (877) 889-5627) or https://www.osha.gov/contactus/byoffice/dtsem/technical-data-center for
assistance in locating docket submissions. Other information about the
Arizona State Plan is posted on the State's website at https://www.azica.gov/divisions/adosh or https://www.osha.gov/stateplans/az.
FOR FURTHER INFORMATION CONTACT:
For press inquiries: Contact Frank Meilinger, OSHA Office of
Communications, U.S. Department of Labor; 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, U.S. Department of Labor; telephone (202) 693-2200; email:
kalinowski.doug@dol.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Section 18 of the Occupational Safety and Health Act of 1980, 29
U.S.C. 651 et seq. (OSH Act), provides that states which desire to
assume responsibility for the development and enforcement of
occupational safety and health standards may do so by submitting, and
obtaining Federal approval of, a State Plan. Procedures for State Plan
submission and approval are set forth in regulations at 29 CFR part
1902. If the Assistant Secretary of Labor for Occupational Safety and
Health (Assistant Secretary) finds that the State Plan satisfies, or
will satisfy, the criteria set forth in Section 18(c) of the OSH Act
and 29 CFR 1902.3 and 1902.4, ``initial approval'' is granted (29 CFR
1902.2(a)).\2\
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\2\ Section 18(c) provides that the Secretary shall approve the
plan submitted by a State under subsection (b), or any modification
thereof, if such plan in his judgement: Designates a State agency or
agencies as the agency or agencies responsible for administering the
plan throughout the State; provides for the development and
enforcement of safety and health standards relating to one or more
safety or health issues, which standards (and the enforcement of
which standards) are or will be at least as effective in providing
safe and healthful employment and places of employment as the
standards promulgated under section 6 which relate to the same
issues, and which standards, when applicable to products which are
distributed or used in interstate commerce, are required by
compelling local conditions and do not unduly burden interstate
commerce; provides for a right of entry and inspection of all
workplaces subject to the OSH Act which is at least as effective as
that provided in section 8, and includes a prohibition on advance
notice of inspections; contains satisfactory assurances that such
agency or agencies have or will have the legal authority and
qualified personnel necessary for the enforcement of such standards;
gives satisfactory assurances that such State will devote adequate
funds to the administration and enforcement of such standards;
contains satisfactory assurances that such State will, to the extent
permitted by its law, establish and maintain an effective and
comprehensive occupational safety and health program applicable to
all employees of public agencies of the State and its political
subdivisions, which program is as effective as the standards
contained in an approved plan; requires employers in the State to
make reports to the Secretary in the same manner and to the same
extent as if the plan were not in effect; and provides that the
State agency will make such reports to the Secretary in such form
and containing such information, as the Secretary shall from time to
time require (29 U.S.C. 667(c)).
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A state may commence operations under its Plan after the initial
approval determination is made, but the Assistant Secretary retains
discretionary concurrent Federal authority over occupational safety and
health issues covered by the Plan during the initial approval period as
provided by Section 18(e) of the OSH Act (29 U.S.C. 667(e); see also,
e.g., 29 CFR 1902.32(a), 1954.1(c)). OSHA regulations provide that in
states with initially approved Plans, OSHA and the state enter into an
operational status agreement describing the division of
responsibilities between them, as deemed appropriate (29 CFR 1954.3).
If, after a period of no less than three years, the Assistant
Secretary determines that the State Plan has satisfied and continues to
meet all criteria in Section 18(c) of the OSH Act, the Assistant
Secretary may make an affirmative determination under Section 18(e) of
the OSH Act (referred to as ``final approval'' of the State Plan),
which results in the relinquishment of concurrent Federal authority in
the state with respect to occupational safety and health issues covered
by the Plan (29 U.S.C. 667(e)). Procedures for Section 18(e)
determinations are found in 29 CFR part 1902, subpart D. In general, in
order to be granted final approval, actual performance by the state
must be at least as effective as the Federal OSHA program in all areas
covered under the State Plan.
Upon receiving final approval, a state's ongoing retention of that
approval is conditioned on its continued ability to maintain a program
which meets the requirements of Section 18(c) of the OSH Act and is at
least as effective as Federal program operations (29 CFR 1902.32(e); 29
CFR
1902.44(a)). As discussed in more detail below, this includes a
requirement that, when Federal OSHA makes a program change that renders
its program more effective, the State Plan must timely adopt a
corresponding change in order to maintain a safety and health program
that is at least as effective as Federal OSHA (Id.). After a State Plan
receives final approval, Section 18(f) of the OSH Act requires OSHA to
``make a continuing evaluation'' of the State Plan, to ensure that it
continues to meet all its obligations (29 U.S.C. 667(f)).
As noted above, one of Section 18(c)'s requirements is that State
Plans must be at least as effective as Federal OSHA in their
development and enforcement of occupational safety and health standards
(29 U.S.C. 667(c)(2)). When OSHA promulgates a new safety and health
standard, or adopts an enforcement policy that it determines necessary
for the enforcement of such standards, State Plans are obligated to
timely adopt identical or at least as effective standards or
enforcement policies if they do not already have existing at least as
effective measures in place (see 29 CFR 1953.4(b); 29 CFR 1953.5). This
requirement also includes adoption of any emergency temporary standard
(ETS) promulgated by Federal OSHA (29 CFR 1953.5(b)). State Plans must
generally adopt standards and other Federal program changes that have
an impact on the ``at least as effective'' status of the State Plan
within six months of the Federal promulgation date for standards, or
from the date of notification for other Federal program changes (29 CFR
1953.4(b); 29 CFR 1953.5(a)). Given the emergency nature of an ETS,
State Plans must notify Federal OSHA of the action they will take with
respect to adoption of the ETS within 15 days of its promulgation and
complete adoption of the ETS within 30 days (29 CFR 1953.5(b)).
State Plans are aware of these obligations. They commit to meeting
these obligations as part of the State Plan approval process (see,
e.g., 50 FR 25561, 25562, 25570 (June 20, 1985)). They also are
regularly reminded of these obligations by Federal OSHA in Federal
Register notices announcing new standards and through OSHA's State Plan
Application (SPA). SPA is an electronic system designed to track State
Plan adoption of OSHA standards and directives (among other items).
OSHA enters each Federal standard and directive into SPA, which then
generates a notice to all users, including State Plan users,
reiterating the State Plan adoption requirements contained in the
preamble or State Plan impact section of the standard or directive, and
including the specific due dates for response and adoption. In
addition, State Plans receive communication and reminders of adoption
requirements in regular meetings and discussions with Federal OSHA, and
as part of the Federal Annual Monitoring and Evaluation (FAME) process.
Further, State Plans annually recommit to meeting these requirements as
part of their applications for Federal grants (see, e.g., Fiscal Year
(FY) 2021 Instructions for 23(g) State Plan Grants, available at:
www.osha.gov/sites/default/files/enforcement/directives/CSP_02-20-01.pdf (``In addition to its strategic and performance goals, each
State Plan must continue to satisfy the mandated activities of the OSH
Act and 29 CFR parts 1902 or 1956 (e.g., standards, enforcement
program, prohibition against advance notice, etc.) and so certify in
its application and demonstrate in actual performance.'')).
State Plans are also well aware of the potential consequences if
they do not meet their obligations. Specifically, each grant of final
approval specifies that the Assistant Secretary may revoke all or part
of an affirmative 18(e) determination if a State does not continue to
meet its obligations as a State Plan (see 29 CFR 1902.43(a)(4); 29 CFR
1902.44(b); see also 50 FR 25561, 25570 (June 20, 1985) (Arizona State
Plan final approval discussing the possibility of revocation if the
State fails to maintain a program which is at least as effective as
operations under the Federal program, or if the State does not submit
program change supplements to the Assistant Secretary as required by 29
CFR part 1953)).
The rules regarding revocation are spelled out in OSHA's
regulations. In short, these regulations provide that the Assistant
Secretary may revoke all or part of an affirmative 18(e) determination
if a State does not continue to meet its obligations as a State Plan
(see 29 CFR 1902.32(e)-(f); 29 CFR 1902.44(b)). Specifically, the
Assistant Secretary may initiate revocation proceedings if a State Plan
does not maintain its commitment to provide a program for employee
safety and health protection that meets the requirements of Section
18(c) of the OSH Act and is at least as effective as the Federal OSHA
program in providing employee safety and health protection at covered
workplaces (29 CFR 1902.32(e)-(f); 1902.44(a)-(b)). Again, maintaining
such a program includes timely adopting plan changes when Federal OSHA
makes program changes that add to or enhance existing protections or
requirements (such as new standards or enforcement policies) (29 CFR
1902.32(e); 29 CFR 1902.44(a); 29 CFR 1953.4(b); 29 CFR 1953.5).
In addition to revocation of a State Plan's final approval, OSHA
may consider, if necessary, pursuing complete withdrawal of a State
Plan's approval upon finding that there is a ``failure to comply
substantially'' with the State Plan (29 U.S.C. 667(f); 29 CFR
1902.44(b); see also 29 CFR part 1955). OSHA's regulations permit the
Assistant Secretary to use the revocation procedure to reinstate
Federal enforcement authority in conjunction with plan withdrawal
proceedings in order to ensure that there is no serious gap in the
Assistant Secretary's commitment to ensure safe and healthful working
conditions so far as possible for every employee (29 CFR 1902.32(f)).
When OSHA determines that a State Plan's failures warrant
revocation of the State Plan's final approval, OSHA may initiate
proceedings to revoke final approval and reinstate Federal concurrent
authority over occupational safety and health issues covered by the
Plan (see 29 CFR 1902.32; 29 CFR 1902.44(b); 29 CFR 1902.47-.48). After
reconsideration and revocation are complete, concurrent Federal
enforcement and standards authority will be reinstated within the state
``for a reasonable time'' until Federal OSHA determines whether to
restore final approval status or withdraw the State Plan's approval, in
total or in part (29 CFR 1902.52(b)). During this period of concurrent
authority, an operational status agreement will delineate the areas of
Federal and state coverage. Procedures for reconsideration and
revocation of final approval are found at 29 CFR 1902.47-.53.
II. A History of Shortcomings in the Arizona State Plan
Arizona administers an OSHA-approved State Plan to develop and
enforce occupational safety and health standards for public and private
sector employers, pursuant to the provisions of Section 18 of the OSH
Act (29 U.S.C. 667). OSHA granted the Arizona State Plan initial
approval on November 5, 1974 (39 FR 39037). The Arizona Division of
Occupational Safety and Health (ADOSH) is designated as the state
agency responsible for administering the State Plan. Pursuant to
Section 18(e) of the OSH Act, OSHA granted Arizona final approval
effective June 20, 1985 (50 FR 25561).
As noted above, after a State Plan receives final approval, Section
18(f) of the OSH Act requires OSHA to ``make a continuing evaluation''
of the State Plan to ensure that it continues to meet
all of its obligations (29 U.S.C. 667(f)). OSHA's continued evaluation
of Arizona's State Plan has revealed that over the past decade, the
State Plan has routinely failed to maintain its commitment to provide a
program that is at least as effective as the Federal OSHA program in
providing employee safety and health protection at covered workplaces,
as required by Section 18(c) of the Act.
As discussed more fully below, OSHA became concerned with Arizona's
State Plan in 2012 with the Arizona legislature's passage of a bill
which implemented residential construction fall protection requirements
that were clearly less effective than the Federal requirements. Arizona
did not remedy this issue until after OSHA initiated revocation
proceedings in 2014 and formally rejected Arizona's fall protection
requirements in 2015. Furthermore, in every FAME report since FY 2015,
OSHA has included a finding regarding Arizona's failure to respond and/
or adopt standards and directives in a timely manner. In addition, as
OSHA has noted in recent FAME reports, Arizona has not yet fulfilled
its State Plan obligation to adopt penalty levels that are at least as
effective as Federal OSHA's, which were raised and tied to the Consumer
Price Index in accordance with the Federal Civil Penalties Inflation
Act of 1990, as amended by the Federal Civil Penalties Inflation
Adjustment Act Improvements Act of 2015 on November 2, 2015. The State
Plan also failed to satisfy its obligation to adopt requirements at
least as effective as OSHA's June 21, 2021 COVID-19 ETS applicable to
the healthcare industry (Healthcare ETS), and its handling of the ETS
issue has raised questions for OSHA about whether the State Plan
actually has the required authority to promulgate ETSs more generally.
Together, this lengthy series of shortcomings in the Arizona program
demonstrates fundamental deficiencies in the Arizona State Plan, and
this has prompted OSHA to reconsider and propose revocation of its
Section 18(e) determination until OSHA receives satisfactory assurances
that these deficiencies have been addressed and that Arizona remains
committed to providing a program meeting the requirements of section
18(c). The remainder of this section discusses this history of
shortcomings in greater detail.
1. Arizona's 2012 Fall Protection Requirements
In 2012, the Arizona legislature passed SB 1441, which implemented
residential construction fall protection requirements that were clearly
less effective than the Federal requirements, including, notably, that
they only required employers to implement fall protection for workers
at 15 feet where OSHA's requirements required fall protection at
heights of 6 feet (79 FR 49465 (August 21, 2014)). OSHA officials
conducted several meetings with Arizona between 2012 and 2014 to
explain and illustrate how Arizona's fall protection requirements were
not at least as effective as OSHA's, but Arizona continued to refuse to
adopt at least as effective fall protection requirements.
In 2014, after more than two years of negotiations with Arizona,
OSHA issued a Federal Register Notice similar to this one,
reconsidering and proposing to revoke Arizona's final approval. It was
only after OSHA initiated the revocation proceedings in 2014 and
formally rejected Arizona's fall protection requirements in 2015 (80 FR
6652 (February 6, 2015)) that Arizona finally came into compliance with
its State Plan obligations on fall protection. Specifically, the
Arizona legislature passed SB 1307, which required repeal of the
State's weaker fall protection requirements if OSHA formally rejected
them. This Bill was approved by the Governor on April 22, 2014, and it
eventually forced the state to revert to Federal OSHA's fall protection
requirements. Given that change, OSHA withdrew its reconsideration of
the Arizona State Plan's final approval (84 FR 35989 (July 26, 2019)).
Although Arizona finally reverted to a fall protection standard that is
at least as effective as Federal OSHA's standard, employees doing
residential construction work in Arizona were not as protected as
workers covered by Federal OSHA during the several years when Arizona's
fall protection requirements were in effect.
2. Issues With Plan Effectiveness Dating Back to 2015
Since 2015, Arizona has also been delinquent in responding to and/
or adopting several other items that require adoption in order for the
State Plan to remain at least as effective as Federal OSHA. In every
FAME report since FY 2015, OSHA has included a finding regarding
Arizona's failure to respond to and/or adopt standards and directives
in a timely manner (see, e.g., FY 2015 Comprehensive FAME Report; FY
2016 Follow-up FAME Report; FY 2017 Comprehensive FAME Report; FY 2018
Follow-up FAME Report; FY 2019 Comprehensive FAME Report; FY 2020
Follow-up FAME Report, all documenting Arizona's failure to adopt
standards and/or directives.) The failures included in these reports
include, for example, Arizona's failure to adopt two important national
emphasis programs as part of its State Plan--the National Emphasis
Program on Amputations in Manufacturing Industries, CPL 03-00-022
(adoption due June 10, 2020), and the National Emphasis Program on
Respirable Crystalline Silica, CPL 03-00-023 (adoption due August 4,
2020)--and the failure to adopt at least two occupational safety and
health standards: The Beryllium Standard for Construction and Shipyards
(adoption due February 27, 2021) and the Standards Improvement
Project--Phase IV (adoption due November 14, 2019) (https://www.osha.gov/stateplans/adoption/standards/2020-08-31; https://www.osha.gov/stateplans/adoption/standards/2019-05-14). In addition,
some of the standards that the State Plan has adopted over the years
were adopted long after their due dates,\3\ and, in some cases, Arizona
failed to provide OSHA with the required documentation of adoption. For
example, although the State Plan advised OSHA that it had adopted the
National Emphasis Program on Trenching and Excavation, CL-00-161
(adoption due April 5, 2019), OSHA's records indicate that any such
adoption was completed past the deadline, and the State Plan has not
provided OSHA with the required documentation of the adoption (see
also, FY 2020 Follow-up FAME Report) (stating: ``OSHA discussed the
list of outstanding items [not adopted] during each quarterly meeting
and reached out via email several times during the year to request
updates. However, [the Arizona State Plan] did not provide a formal
transmittal, updated web links, or SPA updates to close out any pending
[Federal Program Changes (FPC)] during FY 2020. [The Arizona State
Plan] must adopt and/or provide a plan change supplement [i.e., the
required documentation] (transmittal) for 14 FPCs to become
current.'')).
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\3\ For example, on February 12, 2020, Arizona adopted the Final
Rule on Walking-Working Surfaces and Personal Protective Equipment
and the Final Rule on Crane Operator Certification Requirements,
well after the respective due dates of May 18, 2017, and May 9,
2019.
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Furthermore, Arizona has not yet fulfilled its State Plan
obligation to adopt penalty levels that are at least as effective as
Federal OSHA's, which were raised and tied to the Consumer Price Index
in accordance with the Federal Civil Penalties Inflation Act of 1990,
as amended by the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 on November 2, 2015 (FY 2015 Comprehensive
FAME
Report; FY 2017 Comprehensive FAME Report; FY 2019 Comprehensive FAME
Reports; FY 2016 Follow-up FAME Report; FY 2018 Follow-up FAME Report;
FY 2020 Follow-up FAME Reports). Although Arizona recently developed a
plan of action for accomplishing the legislative change necessary for
adoption of OSHA's maximum penalties and minimum willful violation
penalty level, the State has not yet adopted the levels and has failed
to be at least as effective as Federal OSHA in this area for more than
six years.
3. The 2021 Healthcare ETS
The Arizona State Plan also recently failed to adopt OSHA's
Healthcare ETS, which OSHA issued on June 21, 2021, to protect
healthcare and healthcare support service workers from occupational
exposure to COVID-19 (86 FR 32376). Because the Healthcare ETS was
published on June 21, 2021, the deadline for State Plans to communicate
their intended actions to OSHA was July 6, 2021, and the due date for
State Plan adoption of the ETS or of an at least as effective
alternative was July 21, 2021. Arizona failed to meet both of these
deadlines.
OSHA had a number of communications with Arizona over the months
following issuance of the Healthcare ETS. These conversations were
unfruitful, however; the Arizona State Plan never adopted an ETS or
other comprehensive standard to protect healthcare workers in the State
from COVID-19.\4\ Moreover, during the period in which OSHA was working
to address this issue with the State Plan, the Industrial Commission of
Arizona held a meeting in which it suggested that the State Plan might
not even have the appropriate authority to adopt ETSs based on OSHA's
finding of ``grave danger'' and ``necessity,'' as required by the OSH
Act and OSHA regulations. Rather, the Commission maintained that
Arizona Revised Statutes (A.R.S.) only authorizes the State Plan to
adopt an ETS by making its own independent findings on ``grave danger''
and ``necessity'' (Industrial Commission of Arizona Meeting Minutes,
dated October 7, 2021). Specifically, Sec. 23-414(A) provides that
``[t]he Commission may provide for emergency temporary standards or
regulations to take immediate effect upon filing with the secretary of
state, if it determines that employees are exposed to grave danger . .
. and that such emergency standard or regulation is necessary/to
protect employees from such danger'' (emphasis added).
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\4\ Although Arizona failed to adopt the Healthcare ETS in its
entirety, as required, it informed OSHA that it did adopt two of the
rule's provisions eight months after issuance of the Healthcare ETS
when advised that OSHA considered those provisions to be permanent
regulations under Section 8 of the OSH Act. OSHA adopted the
recordkeeping and reporting provisions of the Healthcare ETS (29 CFR
1910.502(q) and (r)) under two sections of the OSH Act: Section
6(c), 29 U.S.C. 655(c) (which empowers the Secretary to issue
emergency temporary standards), and Section 8, 29 U.S.C. 657 (which
authorizes the Secretary to engage in certain activities related to
recordkeeping and reporting, including issuing regulations). As to
the issuance of these provisions under Section 8, OSHA found good
cause to forgo notice and comment in light of the grave danger
presented by the pandemic. On February 9, 2022, OSHA advised State
Plans at an Occupational Safety and Health State Plan Association
(OSHSPA) meeting that State Plans must revise their State
regulations to either adopt the recordkeeping requirements related
to the COVID-19 log (i.e., the requirements at 29 CFR
1910.502(q)(2)(ii) and (q)(3)(ii)-(iv)) and reporting (i.e., 29 CFR
1910.502(r)) as a permanent regulation or demonstrate that such a
change is unnecessary because their State Plan already has
requirements that are the same as or at least as effective as the
Federal OSHA requirements. OSHA notified State Plans of this
obligation in SPA on February 14, 2022. Arizona informed OSHA that
it subsequently adopted the COVID-19 log and reporting provisions
effective February 16, 2022, and provided documentation for OSHA's
review.
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As has been explained in greater detail elsewhere in this proposal,
the Arizona State Plan is required by Section 18(c) of the OSH Act to
provide for the development of standards that are at least as effective
as Federal OSHA's standards, and this includes an obligation to timely
adopt all standards, including any ETS, issued by Federal OSHA (see 29
CFR 1953.4(b); 29 CFR 1953.5). This obligation does not give the State
Plan discretion to determine which Federal standards to adopt or to
independently evaluate the need for such a standard. Accordingly, OSHA
specifically invites comment from the Arizona State Plan to clarify how
its state law complies with the Federal OSHA requirement that a State
Plan adopt a Federal ETS within 30 days of its promulgation. And OSHA
separately invites the Arizona State Plan to include in its comment an
explanation of why that process was not followed for adoption of the
Healthcare ETS.
III. Reconsideration and Proposed Revocation of Section 18(e)
Determination
The OSH Act obligates OSHA to ensure, so far as possible, safe and
healthful working conditions for every working person in the Nation (29
U.S.C. 651(b)). The agency carries out this mission, in part, by
encouraging States to assume the fullest responsibility for the
administration and enforcement of their own occupational safety and
health laws (29 U.S.C. 651(b)(11)). Where, as in Arizona, it appears
that a State Plan has not maintained its commitment to provide a
program for employee safety and health that meets the requirements of
Section 18(c) of the OSH Act and is at least as effective in protecting
workers as the Federal OSHA program, then the Assistant Secretary may
reconsider their decision to grant an affirmative 18(e) determination
(see 29 CFR 1902.32(e)-(f); 29 CFR 1902.44(a); 29 CFR 1902.47(a)).
OSHA's decision to move forward with reconsideration and proposed
revocation at this time is based on its continuing evaluation of
Arizona's State Plan, the history of shortcomings described above, and
the numerous areas where the State Plan continues to be less effective
than OSHA (including on penalty levels and important emphasis
programs). OSHA is concerned that, together, the State Plan's actions
suggest that Arizona is either unable or unwilling to maintain its
commitment to provide a program for employee safety and health
protection that meets the requirements of Section 18(c) of the OSH Act
and is at least as effective as the Federal OSHA program in providing
employee safety and health protection at covered workplaces.
As previously noted, OSHA's regulations provide that the Assistant
Secretary may at any time reconsider the decision to grant an
affirmative 18(e) determination based on results of the continuing
evaluation of a State Plan (29 CFR 1902.47). If, as a result of OSHA's
reconsideration, OSHA proposes to revoke its affirmative 18(e)
determination, OSHA's regulations provide that a notice must be
published in the Federal Register and interested parties must be
provided an opportunity to submit in writing, data, views, and
arguments on the proposal within 35 days after publication (29 CFR
1902.48-.49). Further, the regulations provide that any interested
person may request an informal hearing, and that OSHA must afford an
opportunity for an informal hearing on the proposed revocation if the
Assistant Secretary finds that substantial objections have been filed
(29 CFR 1902.49(c)).
In order to allow for the submission of informed and specific
public comment, OSHA encourages commenters to review the documents
contained in Docket No. OSHA-2021-0012, which can be accessed
electronically at www.regulations.gov.
In drafting their comments, stakeholders should note that OSHA is
not beginning proceedings for the withdrawal of approval of the plan,
or any portion thereof, pursuant to 29 CFR part 1955, but rather is
only proposing
revocation of Arizona's affirmative 18(e) determination at this time.
This is because OSHA believes that the issues with Arizona's State Plan
discussed above can be temporary in nature if Arizona takes prompt
steps to resolve OSHA's concerns and demonstrates a commitment to meet
its obligations in a timely manner in the future.
OSHA further wishes to advise stakeholders that their comments
should be directed only to OSHA's proposed revocation and the bases for
that revocation (see 29 CFR 1902.49(c) (requiring that OSHA allow for
submission of comments ``on the proposal'' and ``particularized written
objections'' specifically ``concerning the proposed revocation'')).
Accordingly, OSHA will consider comments addressing matters other than
the proposed revocation to be beyond the scope of this proposal, and
the agency will not consider such comments in assessing whether
``substantial objections'' have been filed necessitating an informal
public hearing, nor in making a final decision on the proposal. OSHA
provides here a non-exhaustive list of matters that the agency deems
outside of the scope of this proposal:
Any comment criticizing the regulatory and statutory
requirements imposed on State Plans as a condition of their continuous
approval to operate a State Plan.
Any comment directed to the wisdom and/or necessity of the
various OSHA standards and directives referenced in this Federal
Register Notice.
Any comment directed to Federal OSHA's legal authority to
promulgate the Healthcare ETS, or the advisability of its promulgation,
including but not limited to OSHA's findings on Grave Danger and
Necessity, and the need for any particular provision or requirement of
the Healthcare ETS.
Any comment related to OSHA's now-withdrawn November 5,
2022, ETS on COVID-19 Vaccination and Testing (see 86 FR 61402; 87 FR
3928) or the litigation that arose out of it.
Any comment suggesting that OSHA's findings in the
Healthcare ETS, or other rulemakings, are not relevant to or do not
apply to workers or workplaces in Arizona.
A. Effect of Determination
After review of any written comments received and the results of
any informal hearing held, the Assistant Secretary will determine
whether Arizona has failed to meet its obligations to provide a program
for employee safety and health protection that meets the requirements
of Section 18(c) of the OSH Act and is at least as effective as the
Federal OSHA program in providing employee safety and health protection
at covered workplaces, and, if so, whether the Assistant Secretary's
affirmative Section 18(e) determination granting final approval of the
Arizona State Plan should be revoked (29 CFR 1902.52). A notice of the
Assistant Secretary's determination will be published in the Federal
Register.
In the event that the Assistant Secretary determines that
revocation is appropriate, the Federal Register notice will specify
that upon revocation, concurrent Federal enforcement and standards
authority will be reinstated within the State for a reasonable time,
until the Assistant Secretary has determined whether to withdraw
approval of the State Plan, or any separable portion thereof, under 29
CFR 1955, or to reinstate Section 18(e) approval if the State has met
the required criteria (29 CFR 1902.52(b)). OSHA notes that the present
proposal is to revoke the Arizona State Plan's final approval in full.
However, in making a final determination, OSHA may consider instead
revoking only a separable portion of the Arizona State Plan's final
approval, based on, e.g., changed circumstances or other practical
considerations.
OSHA further notes that, as provided by regulation, if the agency
were to revoke the Arizona State Plan's final approval, resumption of
Federal OSHA's concurrent enforcement and standards setting authority
would occur automatically (see 29 CFR 1902.52(b)). Any notice
announcing the revocation of the State Plan's final approval would
specify the areas of coverage over which OSHA intends to immediately
resume and exercise that authority. The agency's final decision on
which issues (if any) to resume coverage over will depend on factors
including information submitted in response to this Federal Register
Notice, as well as the circumstances at the time the revocation
decision is made.
Finally, OSHA notes its regulations provide that in states with
initially approved plans, OSHA and the state enter into a procedural
agreement describing the division of responsibilities between them (29
CFR 1954.3). OSHA typically refers to these types of agreements as
``Operational Status Agreements'' or OSAs. If the Assistant Secretary
decides to revoke Arizona's affirmative Section 18(e) determination,
Federal OSHA's resumption of coverage will be announced in the final
determination notice and the State and OSHA will enter into an OSA that
describes the division of responsibilities between them, consistent
with any resumption of coverage announced in OSHA's final determination
notice. Such an agreement could also include a timetable for remedial
action to make state operations as least as effective in order for OSHA
to consider whether to reinstate the State Plan's final approval
status. Notice would be provided in the Federal Register of any such
agreement.
IV. Documents of Record
All information and data presently available to OSHA relating to
this proceeding have been made a part of the record and placed in the
OSHA Docket Office. Most of these documents have also been posted
electronically at www.regulations.gov, which is the Federal e-
Rulemaking Portal; however, some information (e.g., copyrighted
material) is not publicly available to read or download through that
website. All comments and submissions are available for inspection and,
where permissible, copying at the OSHA Docket Office, U.S. Department
of Labor, 200 Constitution Avenue NW, Room N-3508, Washington, DC
20210; telephone: 202-693-2350 (TTY number: 877-889-5627).
V. Public Participation
The Assistant Secretary's decision whether to continue or revoke
the Arizona State Plan's affirmative 18(e) determination will be made
after careful consideration of all relevant information presented in
the rulemaking (29 CFR 1902.52(a)). To aid the Assistant Secretary in
making this decision, OSHA is soliciting public participation in this
process. Interested parties are encouraged to submit all relevant
information, views, data, and arguments related to the indices,
criteria, and factors presented in 29 U.S.C. 667(c) and 29 CFR part
1902, as they apply to the Arizona State Plan.
Notice in the State of Arizona: Arizona is required to publish
reasonable notice of the contents of this Federal Register notice
within the State no later than 10 days following the date of
publication of this notice (29 CFR 1902.49(a)).
Written comments: OSHA invites interested persons to submit written
data, views, and comments with respect to this reconsideration and
proposed revocation of affirmative Section 18(e) determination of the
Arizona State Plan. When submitting comments, persons must follow the
procedures specified above in the sections titled DATES and ADDRESSES.
Submissions must clearly identify the issues addressed and the
positions taken. Comments received by the end of the specified comment
period will become part of the record and will be available for public
inspection and, where permissible, copying at the OSHA Docket Office,
as well as online at www.regulations.gov (Docket Number OSHA-2021-
0012).
Informal public hearing: Pursuant to 29 CFR 1902.49(c), any
interested person may request an informal hearing concerning the
reconsideration and proposed revocation. To allow for this possibility,
the agency has tentatively scheduled a virtual informal public hearing
on this proposal. For more information on the timing of the hearing,
see the section titled DATES above.
OSHA will hold the informal hearing if the Assistant Secretary
finds that substantial objections have been filed. However, if, after
reviewing the comments received during the written comment period, the
Assistant Secretary finds that no substantial objections have been
filed, then the informal public hearing will be cancelled. OSHA will
provide notice in advance of the hearing date if the public hearing
will not be held.
The informal hearing, if held, will be legislative in type (29 CFR
1902.50). The rules of procedure for the hearing will be those
contained in 29 CFR 1902.40 (29 CFR 1902.50). The essential intent is
to provide an opportunity for participation and comment by interested
persons which can be carried out expeditiously and without rigid
procedures which might unduly impede or protract the 18(e)
determination process (1902.40(a)).
As required by 29 CFR 1902.40(b)(1), the hearing's presiding
officer will be a hearing examiner appointed under 5 U.S.C. 3105 (i.e.,
an Administrative Law Judge (ALJ)). The ALJ will provide an opportunity
for cross-examination on pertinent issues (1902.40(b)(2)). The hearing
shall be reported verbatim, and a transcript shall be available to any
interested person on such terms as the ALJ may provide (1902.40(b)(3)).
At the hearing, the ALJ will have all the power necessary or
appropriate to conduct a fair and full hearing, including the powers
to: Regulate the course of the proceedings; dispose of procedural
requests, objections, and comparable matters; confine the presentation
to the issues specified in the notice of hearing, or, where
appropriate, to matters pertinent to the issue before the Assistant
Secretary; regulate the conduct of those present at the hearing by
appropriate means; take official notice of material facts not appearing
in the evidence in the record, as long as the parties are afforded an
opportunity to show evidence to the contrary; and in the ALJ's
discretion, keep the record open for a reasonable and specified time to
receive additional written recommendations with supporting reasons and
any additional data, views, and arguments from any person who has
participated in the oral proceeding (29 CFR 1902.40(c)(1)-(c)(6)).
Notice of intention to appear to provide testimony or question
witnesses at the hearing: Interested persons who intend to present
testimony or question witnesses at the hearing must file a notice of
intention to appear by using the procedures specified above in the
sections titled DATES and ADDRESSES. This notice must provide the
following information:
Name, address, email address, and telephone number of each
individual who will give oral testimony;
Name of the establishment or organization each individual
represents, if any;
Occupational title and position of each individual
testifying;
Approximate amount of time required for each individual's
testimony;
A brief statement of the position each individual will
take with respect to the issues raised by the reconsideration and
proposed revocation; and
A brief summary of documentary evidence each individual
intends to present at the hearing, if any.
OSHA emphasizes that while the hearing is open to the public, only
individuals who file a notice of intention to appear may question
witnesses and participate fully at the hearing. If time permits, and at
the discretion of the ALJ, an individual who did not file a notice of
intention to appear may be allowed to testify at the hearing, but for
no more than 5 minutes. As noted above, a notice of intention to appear
at the hearing is not the same as a substantial objection and OSHA will
only hold a hearing if the Assistant Secretary finds that substantial
objections have been filed. If interested persons believe that they
have substantive objections to this proposal and wish to present
testimony or question witnesses, they should submit written comments
detailing their objections (see more details above on how to submit
written comments) and separately file a notice of intention to appear.
The Assistant Secretary will consider all written comments submitted
when determining whether a substantial objection has been filed.
Hearing testimony and documentary evidence: Individuals who request
more than 5 minutes to present their oral testimony at the hearing or
who will submit documentary evidence at the hearing must submit the
full text of their testimony and all documentary evidence by using the
procedures specified above in the sections titled DATES and ADDRESSES.
The agency will review each submission and determine if the
information it contains warrants the amount of time the individual
requested for the presentation. If OSHA believes the requested time is
excessive, the agency will allocate an appropriate amount of time for
the presentation. The agency also may limit to 5 minutes the
presentation of any participant who fails to comply substantially with
these procedural requirements, and may request that the participant
return for questioning at a later time. Before the hearing, OSHA will
notify participants of the time the agency will allow for their
presentation and, if less than requested, the reasons for its decision.
VI. Certification of the Hearing Record and Assistant Secretary Final
Determination
Upon the completion of the oral presentations, the transcripts
thereof, together with written submissions on the proceedings, exhibits
filed during the hearing, and all post-hearing comments,
recommendations, and supporting reasons shall be certified by the
officer presiding at the hearing to the Assistant Secretary (29 CFR
1902.40(d); 29 CFR 1902.51).
Within a reasonable time after the close of the comment period (if
no hearing is held) or after the certification of the record (if a
hearing is held), after consideration of all relevant information which
has been presented, the Assistant Secretary shall issue a decision on
the continuation or revocation of the affirmative 18(e) determination
(29 CFR 1902.52(a)). Any decision revoking such determination shall
also reflect the Assistant Secretary's determination that concurrent
Federal enforcement and standards authority will be reinstated within
the State for a reasonable time until the Assistant Secretary has
withdrawn their approval of the plan, or any separable portion thereof,
pursuant to part 1955 of this chapter or has determined that the State
has met the criteria for an 18(e) determination pursuant to the
applicable procedures of Part 1902, Subpart D (29 CFR 1902.52(b)). The
Assistant Secretary's decision will be published in the Federal
Register (29 CFR 1902.53).
VII. 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 included in
the Background section of today's request for public comments an
explanation of the relationship between Federal OSHA and the State
Plans under the OSH Act. Although it appears that the specific
consultation procedures provided in section 6 of Executive Order 13132
are not mandatory for final approval-related decisions under the OSH
Act (including revocation of final approval), which neither impose a
burden upon the state nor generally involve preemption of any state
law, OSHA has nonetheless consulted extensively with Arizona on the
matter of maintaining its State Plan in compliance with Federal OSHA.
VIII. Regulatory Flexibility Act
OSHA certifies pursuant to the Regulatory Flexibility Act of 1980
(5 U.S.C. 601 et seq.) that this reconsideration and proposed
revocation, if finalized, will not have a significant economic impact
on a substantial number of small entities. OSHA's decision to
reconsider and proposal to revoke the affirmative Section 18(e)
determination granting final approval of the Arizona State Plan would
not place small employers in Arizona under any new or different
requirements beyond what the State Plan was required to adopt to remain
at least as effective as OSHA. No additional burden would be placed
upon the State government beyond the responsibilities already assumed
as part of the approved plan.
List of Subjects in 29 CFR Part 1952
State Plans, Approval.
Authority and Signature
Douglas L. Parker, Assistant Secretary of Labor for Occupational
Safety and Health, U.S. Department of Labor, 200 Constitution Avenue
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. 8-2020 (85 FR 58393 (Sept. 18, 2020)), and 29 CFR
parts 1902, 1952, 1953, 1954, and 1955.
Signed in Washington, DC.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.
For the reasons stated in the preamble, OSHA proposes to amend 29
CFR part 1952 as follows:
PART 1952--APPROVED STATE PLANS FOR ENFORCEMENT OF STATE STANDARDS
0
1. The authority citation for part 1952 is revised to read as follows:
Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR part
1902; Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25,
2012), or 8-2020 (85 FR 58393, Sept. 18, 2020), as applicable.
Subpart A--List of Approved State Plans for Private-Sector and
State and Local Government Employees
0
2. Amend Sec. 1952.19 by redesignating paragraph (d) as paragraph (e)
and adding a new paragraph (d) to read as follows:
Sec. 1952.19 Arizona.
* * * * *
(d) On [DATE OF FINAL DETERMINATION], OSHA modified the State
Plan's approval status from final approval to initial approval, and
reinstated concurrent Federal authority pending a determination as to
whether OSHA will make a new final approval determination or withdraw
the State Plan's approval under part 1955. All issues over which OSHA
decides to assume enforcement authority, as well as any operational
status agreement entered into by OSHA and Arizona, will be announced in
the Federal Register.
* * * * *
[FR Doc. 2022-08424 Filed 4-20-22; 8:45 am]
BILLING CODE 4510-26-P
