[Federal Register Volume 87, Number 159 (Thursday, August 18, 2022)]
[Rules and Regulations]
[Pages 50766-50776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17803]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1956
[Docket No. OSHA-0022-0008]
RIN 1218-AD41
Massachusetts State Plan for State and Local Government
Employers; Initial Approval Determination
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
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SUMMARY: The Massachusetts State and Local Government Only State Plan,
a State occupational safety and health, applicable only to
Massachusetts State and local Government employees (workers 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. OSHA's decision to grant the Massachusetts State Plan
initial approval is based on its determination that the Massachusetts
State Plan meets, or will meet within three years, OSHA's State Plan
approval criteria, and that Massachusetts has provided adequate
assurances that it will be at least as effective as Federal OSHA in
protecting the safety and health of Massachusetts State and local
Government workers. The Massachusetts State Plan is eligible to receive
funding from the Department of Labor's Fiscal Year 2022 budget.
DATES: This final rule is effective August 18, 2022.
FOR FURTHER INFORMATION CONTACT: For press inquiries: Contact Francis
Meilinger, Director, 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.
Copies of this Federal Register document and news releases: Copies
of this Federal Register document and other documents referenced herein
are available at www.regulations.gov, the Federal eRulemaking Portal,
in Docket No. OSHA-2022-0008. Electronic copies of this document, as
well as news releases and other relevant information, are also
available at OSHA's web page at: www.osha.gov.
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. For example, the full Document ID number
for the Massachusetts State Plan narrative, which describes the
Massachusetts State Plan, is Document ID OSHA-2022-0008-0048.\1\ OSHA
will identify this comment, and other comments in the rulemaking, by
the term ``Document ID'' followed by the comment's unique four-digit
code (e.g., as to the Massachusetts State Plan narrative, Document ID
0048).
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\1\ The Appendices referenced in the Massachusetts State Plan
narrative are also included in the Docket as supporting and related
materials.
SUPPLEMENTARY INFORMATION:
I. Background
Section 18 of 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 a Federal standard which 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. State and local Government employers are
excluded from Federal OSHA coverage under the Act (29 U.S.C. 652(5)).
However, a State may submit a State Plan for the development and
enforcement of occupational safety and health standards applicable only
to employers and employees of the State and its political subdivisions
(i.e., State and local Government employers and employees) (29 CFR
1956.1). The Assistant Secretary will approve a State Plan applicable
only to State and local Government employers and employees (State and
local Government State Plan) 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 State and local Government and
private sector employment (29 U.S.C. 667(c); 29 CFR 1956.2(a)). In
making this determination, the Assistant Secretary will measure the
State Plan against the criteria and indices of effectiveness set forth
in 29 CFR part 1956.10 and 1956.11 (29 CFR 1956.2(a)). A State and
local Government State Plan may receive initial approval although it
does not yet fully meet this criteria, if it includes satisfactory
assurances by the State that it will take the necessary steps to bring
the program into conformity with these criteria within the 3-year
period immediately following the commencement of the State Plan's
operation (29 CFR 1956.2(b)(1)). In such case, the developmental State
Plan must include the specific actions (referred to as developmental
steps) that the State Plan must take and a schedule for their
accomplishment, not to exceed 3 years. Once a State and local
Government State Plan has completed the developmental steps, Federal
OSHA will publish a notification in the Federal Register certifying the
State Plan's completion of all developmental steps (29 CFR 1956.23;
1902.33 and 1902.34).
Section 23(g) of the OSH Act provides for funding of up to 50% of
the State Plan costs (29 U.S.C. 672(g)). Congress designates specific
funds for this purpose (see, e.g., FY 2022 Consolidated Appropriations
Act, H.R. 2471, p. 383 (March 17, 2022)).
II. Massachusetts State Plan History and Events Leading to Initial
Approval
The Massachusetts Department of Labor Standards (DLS) has a history
that traces back to 1912. Although the agency's name has changed
slightly over time, the mission of the DLS has always included
promoting and protecting workers' health, safety, and working
conditions. In 2014, by statute, Massachusetts authorized the DLS to
provide State workers with at least the level of protection from
workplace safety and health hazards as protections provided under the
OSH Act by Federal OSHA (M.G.L. c. 149, Sec. 6\1/2\). The DLS's
authority to provide such protection was expanded to cover all State
and local Government workers, including any political subdivision of
the Commonwealth, which includes municipal and county workers, by
amendment to the authorizing statute in 2018. Since 2019, the DLS,
through its Workplace Safety and Health Program (WSHP), has performed
inspections of State and local Government employers to ensure
compliance with these requirements. The DLS began working with OSHA to
obtain approval for a State Plan for occupational safety and Health,
applicable only to State and local Government employment, and submitted
a draft Plan to OSHA in December 2020, with final revisions to the Plan
in June 2022.
In Fiscal Year 2022, Congress increased the funds available for
State Plans. The Fiscal Year 2022 Omnibus Appropriations Act includes
$1,250,000 in State Plan grant funds for the Massachusetts State Plan.
On June 30, 2022, OSHA published a notice in the Federal Register
proposing to grant the Massachusetts State Plan initial approval as a
State and local Government State Plan under section 18 of the OSH Act
(29 U.S.C. 667) (87 FR 39033). In the proposal, OSHA indicated that it
had preliminarily found the Massachusetts State Plan to be conceptually
approvable as a developmental State Plan. The proposal also included a
request for interested persons to submit public comment and to request
an informal hearing concerning the proposed initial State Plan
approval. OSHA received seven comments in response, and, as discussed
below, all seven comments strongly supported OSHA's proposal. OSHA did
not receive any requests for an informal hearing.
III. Summary of Comments Received
OSHA received seven comments from interested persons in response to
its June 30, 2022, proposal and request for public comment. As
previously noted, all seven comments may be viewed in the rulemaking
docket at www.regulations.gov, under Docket No. OSHA-2022-0008.
All seven comments strongly support OSHA's initial approval of the
Massachusetts State Plan. The Occupational Safety and Health State Plan
Association (OSHSPA), which ``is an organization of twenty-eight (28)
State Plans and U.S. Territories that have OSHA-approved State Plans,''
submitted a comment expressing strong support for OSHA's proposal to
grant initial approval to the Massachusetts State Plan in order to
``ensure approximately 434,000 public sector workers in Massachusetts
are afforded occupational safety and health protections that OSHA
cannot provide'' (Document ID 0052). Another commenter, on behalf of
United Support and Memorial for Workplace Fatalities, also expressed
strong support (Document ID 0055).
The other five comments received were nearly identical to one
another. These comments were received from the Massachusetts Coalition
for Occupational Safety and Health (MassCOSH) (Document ID 0049), Dr.
Leslie I. Boden, professor of Public Health at Boston University
(Document ID 0050), SEIU Local 888 (Document ID 0051); Massachusetts
AFL-CIO (Document ID 0054), and Teamsters
Local Union No. 25 (Document ID 0056). All five of these comments
``emphatically support'' OSHA's proposal to grant initial approval.
They also raised identical specific concerns about terms of the
proposed Massachusetts State Plan, regarding Massachusetts' regulations
applicable to the Massachusetts State Plan that address advance notice
of inspections, anti-retaliation, and Massachusetts' adoption of new
OSHA standards and Emergency Temporary Standards. These five
commenters' specific concerns are addressed below, in conjunction with
OSHA's findings regarding the Massachusetts State Plan's compliance
with the criteria and indices of effectiveness for State and local
Government State Plans set forth in OSHA's regulations.
IV. Findings
As previously discussed, in order to grant initial approval to a
State Plan for State and local Government, OSHA must determine whether
the State 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 State and local Government and private sector
employment (29 U.S.C. 667(c); 29 CFR 1956.2(a)). To make this
determination, the Assistant Secretary measures the State Plan against
the criteria in 29 CFR 1956.10 and the indices of effectiveness in 29
CFR 1956.11 (29 CFR 1956.2(a)).
OSHA has evaluated the Massachusetts State Plan against the
criteria and indices of effectiveness in OSHA's regulations and finds
that the Massachusetts State Plan meets these criteria, or will meet
these criteria within the three-year period immediately following the
commencement of the State Plan's operation, as permitted by 29 CFR
1956.2(b)(1). OSHA's specific findings and conclusions with regard to
these criteria and indices of effectiveness are discussed below.
OSHA's findings are based primarily on information about the
Massachusetts State Plan that is included in the Massachusetts State
Plan narrative (Document ID 0048), and on the Appendices referenced in
the Massachusetts State Plan narrative that OSHA has also included in
the rulemaking docket. And OSHA reviewed and carefully considered the
seven public comments received in reaching its determinations regarding
the Massachusetts State Plan.
A. 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 U.S.C.
667(c)(1); see also 29 CFR 1956.10(b)(1)). The State 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 DLS 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. Workplace Safety and Health Program (WSHP) is the sub-agency
responsible for administering the Massachusetts State Plan. The
Massachusetts State Plan narrative describes the authority of the
Massachusetts DLS and its other responsibilities (Document ID 0048, pp.
9-10).
B. Scope
Section 18(c)(6) of the OSH Act provides that a State Plan, to the
extent permitted by its law, must establish and maintain an effective
and comprehensive occupational safety and health program applicable to
all employees of the State and its political subdivisions (29 U.S.C.
667(c)(6)). A State Plan may only exclude certain political subdivision
employees from coverage if the State is constitutionally precluded from
regulating occupational safety and health conditions for such political
subdivision (29 CFR 1956.2(c)(1)). Further, the State may not exclude
any occupational, industrial or hazard grouping 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 Massachusetts State Plan covers State and local Government
employees throughout the State. M.G.L. c. 149, Sec. 6\1/2\ defines
``public employees'' as ``individuals employed by a public employer.''
``Public employers,'' as defined by M.G.L. c. 149, Sec. 6\1/2\,
include ``any agency, executive office, department, board, commission,
bureau, division, or authority of the commonwealth or of any political
subdivision of the commonwealth [that is, city, town, county], any
quasi-public independent entity and any authority or body politic and
corporate established by the general court [Legislature] to serve a
public purpose.'' Volunteers under the direction of a public employer
or other public corporation or political subdivision are also covered.
The definition of public employee does not include students (except
when employed or vocational/technical students when performing field
work), or those incarcerated or involuntarily/voluntarily committed in
public institutions (Document ID 0048, pp. 6-9).
Consequently, OSHA finds that the Massachusetts 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.
C. Standards and Federal Program Changes
Section 18(c)(2) of the OSH Act requires State Plans to provide for
the development and enforcement of occupational safety and health
standards which are at least as effective as Federal OSHA standards
that relate to the same issues (29 U.S.C. 667(c)(2)). A State Plan for
State and local Government must 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,
procedures, criteria, and rules as Federal OSHA (29 CFR 1956.11(a)(1)),
or alternative standards, procedures, criteria, and rules that are at
least as effective as those of Federal OSHA (29 CFR 1956.11(a)(2)).
Among other requirements, State standards that deal with toxic
materials or harmful physical agents, must adequately assure, to the
extent feasible, that no employee will suffer material impairment of
health or functional capacity, even if such employee has regular
exposure to the regulated hazard throughout the employee's working life
(29 CFR 1956.11(b)(2)(i)). Where a State's standards are not identical
to Federal OSHA's, 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)).
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 the authority to promulgate emergency temporary
standards (29 CFR 1956.11(b)(2)(v)). State standards must provide for
furnishing employees
appropriate information regarding hazards in the workplace through
labels, posting, medical examinations, etc. (29 CFR 1956.11(b)(2)(vi)).
They must require suitable protective equipment and technological
procedures with respect to regulated hazards, including monitoring or
measuring exposure, where appropriate (29 CFR 1956.11(b)(2)(vii)).
M.G.L. c. 149, Sec. Sec. 6 and 6\1/2\ authorize the DLS to investigate
and issue fines to places of public employment. M.G.L. c. 149, Sec.
6\1/2\ includes the requirement that ``Public employers shall provide
public employees at least the level of protection provided under the
federal Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et
seq., including standards and provisions of the general duty clause
contained in 29 U.S.C. 654.'' Massachusetts promulgated regulations
pursuant to M.G.L. c. 149, Sec. 6\1/2\. Those regulations include 454
CMR 25.00 and 29.00, which were promulgated and/or amended according to
M.G.L. c. 30A, Sec. 1 et seq., the Massachusetts State Administrative
Procedure Act (State APA). 454 CMR 25.00 incorporates the standards set
forth under the OSH Act, 29 U.S.C. 651 et seq., including the General
Duty Clause, and regulations, 29 CFR parts 1903, 1904, 1910, 1915,
1917, 1918, 1926, 1928, and 1977, and applies them to Massachusetts
places of State and local Government employment. 454 CMR 29.00 provides
the procedures for issuing civil penalties and hearing appeals
(Document ID 0048, p. 10).
M.G.L. c. 149, Sec. 6\1/2\ created the Occupational Health and
Safety Hazard Advisory Board (Advisory Board), whose members are
appointed by the Governor. The Advisory Board evaluates injury and
illness data, recommends training and implementation of safety and
health measures, and monitors the effectiveness of safety and health
programs to determine where additional resources are needed to protect
the safety and health of State and local Government employees. The DLS
consults with the Advisory Board prior to promulgating occupational
safety and health regulations and adopting regulations promulgated by
OSHA, pursuant to M.G.L. c. 149, Sec. 6\1/2\(d) (Document ID 0048, pp.
10-11).
In all rulemaking, the DLS follows its State APA and 950 CMR 20.00
(PREPARING AND FILING REGULATIONS). Prior to the adoption, amendment,
or repeal of any regulation where the violation of the regulation is
punishable by fine or imprisonment, except for emergency temporary
standards, the DLS must provide notice and hold a public hearing where
any interested persons, data, views, arguments, or comments either
orally, in writing, or both, shall be accepted for consideration. The
DLS has provided assurances that it will complete this process to adopt
all Federal occupational safety and health standards not promulgated as
emergency temporary standards, within six months, as required by OSHA
regulation (Document ID 0048, p. 11).
When the DLS promulgated 454 CMR 25.02, it incorporated the
following phrase, ``All current and updated regulations and references
at 29 CFR parts 1903, 1904, 1910, 1915, 1917, 1918, 1926, 1928 and 1977
are incorporated by reference, and applicable to all places of
employment covered by 454 CMR 25.00'' with the intent of automatically
adopting any future changes of revisions of the Federal OSHA standards.
However, this method of adopting standards is prohibited by the State
APA. Therefore, the DLS, as a developmental step, will amend 454 CMR
25.00 to remove this phrase and clarify its rulemaking process with
respect to the adoption of Federal OSHA standards (Document ID 0048, p.
11).
In addition, consistent with 29 CFR 1953.4(b), Massachusetts has
provided assurances that it will timely adopt and/or implement all
other Federal Program Changes, or an at least as effective alternative,
whenever OSHA designates such Federal Program Changes to be ``adoption
required'' or ``equivalency required.'' This includes the adoption of
all Federal Directives designated as ``adoption required'' or
``equivalency required'' by OSHA, or an at least as effective
alternative (Document ID 0048, p.11).
The DLS has the authority under M.G.L. c. 149, Sec. 6\1/2\ 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. New or modified standards may be
requested through research and experience during inspections, a
recommendation from the Advisory Board, and an interested person. Prior
to the development and promulgation of new standards or the
modification or revocation of existing standards, the DLS would
consider input from the Advisory Board, per M.G.L. c. 149, Sec. 6\1/
2\(d), experts with technical knowledge, and submissions from
interested persons, and provide the opportunity for interested persons
to participate in any hearing. To be considered by the Advisory Board,
new or modified standards are required to be more protective of
employees than existing OSHA standards, or to address issues for which
there is no existing OSHA standard (Document ID 0048, p. 12).
The DLS has the authority to adopt emergency temporary standards
where State and local Government employees may be exposed to unique
hazards for which existing standards do not provide adequate protection
for the preservation of their health or safety. Emergency rulemaking
procedures are in the State APA at M.G.L. c. 30A, Sec. 2, 3, & 6 and
950 CMR 20.05. An emergency is defined in the State APA as the
existence of a situation where it is necessary to adopt, amend, or
repeal a regulation for the preservation of the public health, safety,
or general welfare immediately, and where the observance of the
requirements of notice and a public hearing would be contrary to the
public interest. The DLS's finding of an emergency and a brief
statement of the reasons for its finding shall be incorporated in the
emergency regulation as filed with the State Secretary.
With regard to Federal occupational safety and health standards
promulgated as emergency temporary standards, if OSHA promulgates an
emergency temporary standard, Massachusetts has provided assurances
that the DLS will, and has the authority to, adopt and rely on OSHA's
findings of grave danger and reasonable necessity, and that such
reliance on Federal OSHA's findings will be sufficient to satisfy the
requirements of the State APA. The DLS would file emergency regulations
within 30 days of the Federal promulgation date unless an existing
State standard is deemed to be at least as effective, following the
emergency rulemaking procedures as outlined in the State APA at M.G.L.
c. 30A, Sec. Sec. 2, 3, & 6, and 950 CMR 20.05(2). An emergency
regulation becomes effective immediately when filed or such later time
as specified therein, per M.G.L. c. 30A, Sec. 6 (Document ID 0048, pp.
12-14).
Per the State APA, and as described at 950 CMR 20.05(2), such
emergency temporary regulations may only remain in effect no longer
than three months from the date filed with the State Secretary or until
superseded by a permanent regulation. During the three months covered
by the emergency regulation, the DLS has provided assurances that it
would proceed with the rulemaking process as described in 950 CMR
20.05(2)(a) through (c) to adopt the ETS for a period equal to or
exceeding Federal OSHA's ETS, and that it would make an emergency
temporary standard permanent within
three months of its effective date pursuant to 950 CMR 20.05(2)(a)
through (c), provided that the Federal emergency temporary standard
remains in effect (Document ID 0048, pp. 12-13).
As previously discussed, five commenters provided nearly identical
public comments in support of OSHA's proposal to grant the
Massachusetts State Plan initial approval. These five commenters also
expressed concerns regarding the Massachusetts rulemaking process, and
particularly regarding Massachusetts' recent decision not to adopt
OSHA's COVID-19 Healthcare Emergency Temporary Standard (COVID-19
Healthcare ETS) (Document ID 0049; 0050; 0051; 0054; 0056).
Additionally, they expressed concerns that the State APA only permits a
Massachusetts emergency temporary standard to remain in effect for
three months, whereas the commenters state that the OSH Act
contemplates an emergency temporary standard to remain effective until
superseded by a permanent standard, ``a process contemplated by the OSH
Act to occur within 6 months of the [Emergency Temporary Standard's]
promulgation.''
OSHA appreciates these commenters' perspective. It is true that
Massachusetts did not adopt OSHA's COVID Healthcare ETS. However, the
agency does not find that Massachusetts' failure to adopt that ETS
suggests a deficiency in the State Plan because Massachusetts also did
not have an OSHA-approved State Plan when the COVID Healthcare ETS was
published in 2021, and thus was not required by the OSH Act to have and
enforce standards that were at least as effective as Federal OSHA at
that time. Moreover, OSHA specifically consulted with the DLS regarding
Massachusetts' decision not to adopt OSHA's COVID-19 Healthcare ETS,
and Massachusetts made assurances, discussed above, that it will timely
adopt all Federal standards promulgated in the future, including any
future emergency temporary standards, and that it will adopt a
permanent standard that is at least as effective as a Federal emergency
temporary standard, within the three-month timeframe that the State APA
permits emergency regulations in Massachusetts to remain in effect.
OSHA notes that State Plans' statutory and regulatory requirements for
adopting Federal OSHA standards vary considerably by State. OSHA will
continue to monitor Massachusetts' ability to timely adopt Federal
standards, including emergency temporary standards, if promulgated,
including during the three-year developmental period following OSHA's
grant of initial approval to the Massachusetts State Plan and prior to
certifying the State Plan's completion of all developmental steps in
accordance with 29 CFR 1956.23, 1902.33, and 1902.34.
Based on the preceding Plan provisions, assurances, and
commitments, OSHA finds the Massachusetts State Plan to have met the
statutory and regulatory requirements for initial plan approval with
respect to adoption of occupational safety and health standards and
Federal Program Changes.
D. Variances
A State Plan must have authority to grant variances from State
standards upon application of a public employer or employers which
corresponds with Federal OSHA's authority under sections 6(b)(6) and
6(d) of the OSH Act (29 U.S.C. 655(b)(6) and (d); 29 CFR
1956.11(b)(2)(iv). Such authority must include provisions for the
consideration of 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 variance applications (29 CFR 1956.11(b)(2)(iv)).
Per 454 CMR 25.05(6), variances may be granted when, ``The
Director, on the record, after notice, an inspection when warranted,
and an opportunity for a hearing may provide such reasonable
limitations and may make such rules and regulations allowing reasonable
variations, tolerances, and exemptions to and from any or all
provisions of 454 CMR 25.00 as found necessary and proper. Such action
shall not be in effect for more than six months without notification to
affected employees and an opportunity being afforded for a hearing.''
The DLS has provided assurances that variances may not be granted
unless it is established that adequate protection is afforded to
employees under the terms of the variance. However, current DLS
provisions for granting variances, found at 454 CMR 25.05(6), are
inconsistent with OSHA's permanent variance procedure. Therefore,
during its developmental period, Massachusetts has provided assurances
that it intends to complete the developmental step of amending 454 CMR
25.05 to modify its variance requirements to become consistent with
those in the OSH Act and to adopt OSHA's regulation governing
variances, 29 CFR 1905 (Document ID 0048, pp. 14-15).
Accordingly, OSHA finds that the Massachusetts State Plan has
adequately provided assurances that it will meet the statutory and
regulatory requirements for initial plan approval with respect to
variances within the developmental period.
E. Enforcement
Section 18(c)(2) of the OSH Act requires 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 (29
U.S.C. 667(c)(2); see also 29 CFR 1956.10(d)(1)).
1. Legal Authority
The State Plan must require State and local Government employers to
comply with all applicable standards, rules and orders and must have
the legal authority necessary for standards enforcement (29 U.S.C.
667(c)(4); 29 CFR 1956.10(d)(2), 1956.11(c)(2)(viii)).
M.G.L. c. 149 Sec. 6\1/2\ requires public employers to, ``provide
public employees at least the level of protection provided under the
Federal Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et.
seq., including standards and provisions of the general duty clause
contained in 29 U.S.C. 654.'' The DLS, as the designated enforcement
agency for M.G.L. c. 149 Sec. 6\1/2\, has the authority to inspect
public sector workplaces pursuant to M.G.L. c. 149, Sec. Sec. 6, 6\1/
2\, 10, 17, and 454 CMR 25.03. According to 454 CMR 25.03(1)(a), the
DLS has the authority to ``enter without delay'' public sector
workplaces to conduct inspections. M.G.L. c. 149, Sec. Sec. 6, 6\1/
2\(e), 10, and 17, 454 CMR 25.03 and 25.05(4), as well as the
Massachusetts Field Operation Manual (MA FOM) \2\ at Chapter 3(IV)(C),
provide procedures for when an employer refuses entry to the DLS
inspector. Pursuant to 454 CMR 25.03(c), the DLS may question privately
any employer, operator, manager, agent or employee. The DLS has the
authority to review employer records as part of an inspection under
M.G.L. c. 149 Sec. 17, which states that the DLS, ``. . . shall have
access to all
records pertaining to wages, hours, and other conditions of employment
which are found essential to such investigations.'' This authority is
also included in 454 CMR 25.03(c) (Document ID 0048, pp. 16-17).
Additional legal authority of the Massachusetts State Plan related to
enforcement is discussed below.
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\2\ Massachusetts has already written and adopted a
Massachusetts Field Operations Manual (MA FOM) based on Federal
OSHA's Field Operations Manual (FOM) with some differences to
reflect differences between the State Plan and Federal OSHA. Federal
OSHA is currently reviewing the Massachusetts FOM. The DLS has
provided assurances that, once Federal OSHA's review is complete, it
will make any updates, as necessary, to ensure that the enforcement
policies in the MA FOM are at least as effective as Federal OSHA's
FOM. This commitment is also a developmental step (Document ID 0048,
p. 29).
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2. 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)).
As previously noted, the DLS has the authority to inspect any
workplace where work is being performed by an employee of a State or
local Government employer to enforce its occupational safety and health
standards pursuant to M.G.L. c. 149, Sec. Sec. 6, 6\1/2\, 10 and 17,
and 454 CMR 25.03 (Document ID 0048, p. 17). The DLS will accept a
complaint from any source: employees, representatives of employees, or
members of the public. Complaints may be made in person, by telephone,
or by email. A complaint form is available on the DLS website. A
complainant may request that their name not be revealed to the
employer. While allegations made in the complaint are provided to the
employer, copies of the complaint form are not regularly provided to
the employer. However, under court order, the DLS may be required to
provide the complaint form and the name of the complainant to the State
or local Government employer. If the DLS determines upon the receipt of
a complaint that there are reasonable grounds to believe that unsafe or
unhealthful working conditions exists, an inspector shall be assigned
to the case to determine if such violation or danger exists per 29 CFR
1903.11, incorporated at 454 CMR 25.02, and the MA FOM Chapter 9. When
contact information has been provided, the DLS will inform the
individual who has made a complaint that an inspection will be
scheduled and that the individual will be advised of the results. If
the DLS determines that there are no reasonable grounds to believe that
a violation or danger exists, the employee or representative of the
employee who alleged violations will be notified of such determination
per procedures of the MA FOM Chapter 9, as required in 29 CFR 1903, as
adopted under 454 CMR 25.00 (Document ID 0048, p. 20).
3. 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)). 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 1956.11(c)(2)(iv)), and provide that employees have
access to information on their exposure to regulated agents and access
to records of the monitoring of their exposure to such agents (29 CFR
1956.11(c)(2)(vi)).
During the walkaround inspection, representatives of the employer
and employees are allowed to accompany the DLS throughout the
inspection process so long as they do not interfere in the conduct of
the inspection or present a safety or health hazard as determined in
the sole discretion of the DLS, pursuant to 454 CMR 25.03(6) (Document
ID 0048, p. 19).
Any State or local Government employer who violates any of the
posting requirements, pursuant to 29 CFR 1903.2 & 1903.16 incorporated
by 454 CMR 25.02, 454 CMR 25.04, and the MA FOM Chapter 6(X), shall be
assessed a penalty of not more than $1,000 for each violation pursuant
to M.G.L. c. 149, Sec. 6 (Document ID 0048, p. 27).
State and local Government employers in Massachusetts are required
to maintain accurate records regarding occupational safety and health
injuries, illnesses, deaths, and exposures to toxic materials, and
employees and/or employee representatives have the right to access the
records pursuant to 29 CFR 1904.35(b)(2) and 29 CFR 1910.1020 as
incorporated by 454 CMR 25.02 and 25.06(1) (Document ID 0048, p. 18).
4. Nondiscrimination Protections
State Plans must provide necessary and appropriate protection to
employees against discharge or discrimination for exercising their
rights under the State program, including by such means as providing
for employer sanctions and employee confidentiality (29 CFR
1956.11(c)(2)(v)).
The DLS has authority to remedy retaliation for a State or local
Government employee who files a complaint, instituted any proceeding,
testified, or exercised any rights afforded by 454 CMR 25.00, pursuant
to 29 CFR 1977 as incorporated at 454 CMR 25.02 and 25.07. Any State or
local Government employee who believes that they have been discharged
or otherwise discriminated against in violation of 454 CMR 25.07 and
incorporated 29 CFR 1977, may within 30 days after the alleged
violation occurs, file a complaint with the DLS, alleging
discrimination. The DLS may seek a remedy for an employee who files a
retaliation complaint for discharge or discrimination within 30 days
after any alleged violation pursuant to 29 CFR part 1977, in accord
with 454 CMR 25.07 & 25.02 and the MA FOM Chapter 9(I)(J)(2).
Massachusetts has also adopted, and will conduct inspections consistent
with, the OSHA Whistleblower Investigations Manual, CPL 02-03-007. If
upon investigation, the DLS determines that the provisions of 454 CMR
25.07 have been violated, an action shall be brought for all
appropriate relief, including rehiring or reinstatement of the employee
to their former position with back pay, pursuant to 29 CFR 1977.3 as
incorporated by 454 CMR 25.02. In addition, the DLS has a fine
structure that can increase the amount of future fines, up to the
current maximum of one thousand dollars for each violation, if further
discrimination were to occur, pursuant to M.G.L. c. 149, Sec. 6, 454
CMR 25.05(1), 454 CMR 29.04(2)(d), and MA FOM Chapter 9(II) procedures.
Massachusetts also has a Whistleblower's Protection statute, M.G.L.
c. 149, Sec. 185, that protects State and local Government employees
and prohibits retaliation through a right of private civil action. Any
State or local Government employee or former employee aggrieved of a
violation of M.G.L. c. 149, Sec. 185 may, within two years, institute
a civil action in Superior Court. All remedies available in common law
tort actions shall be available to prevailing plaintiffs, including
reinstatement and back pay (Document ID 0048, pp. 21-22).
The five commenters that provided nearly identical public comments
in support of OSHA's proposal to grant the Massachusetts State Plan
initial approval also raised concerns that the Massachusetts State
Plan's adoption of OSHA's regulations at 29 CFR 1977 governing
Discrimination Against Employees Exercising Rights Under the Williams-
Steiger Occupational Safety and Health Act of 1970 and incorporation of
these regulations at 454 CMR 25.07 may not provide Massachusetts with
adequate legal
authority to investigate and take enforcement action if a State or
local Government employee believes that they have been discharged or
otherwise discriminated against in violation of the Massachusetts State
Plan's regulations Document ID 0049; 0050; 0051; 0054; 0056).
OSHA's understanding is that Massachusetts adopted 454 CMR 25.07
and 29 CFR 1977 through the rulemaking process required by the State
APA, and thus OSHA's understanding, consistent with the Massachusetts
State Plan's assurances, is that the DLS currently has authority to
enforce these provisions. OSHA notes that at least one other State and
local Government State Plan, Maine, has recently similarly adopted 29
CFR 1977 without issue. However, OSHA agrees that, were a State court
to determine that the Massachusetts State Plan lacked the authority to
enforce its anti-retaliatory provisions, this would likely render the
State Plan less effective than Federal OSHA and necessitate
Massachusetts making further changes to its statutory or regulatory
structure, as appropriate, to ensure its continued enforcement
authority. OSHA will continue to evaluate the Massachusetts State
Plan's ability to enforce its anti-retaliation provisions under 454 CMR
25.07 and 29 CFR 1977, as incorporated, including during the three-year
developmental period following its initial approval.
In addition, these commenters expressed concerns that the
Massachusetts State Plan does not include a penalty structure that is
the equivalent of the punitive damages that may be available for
violation of the antiretaliatory provisions in section 11(c) of the OSH
Act (Document ID 0049; 0050; 0051; 0054; 0056). As noted above,
Massachusetts has the authority to issue fines of up to one thousand
dollars for each violation if repeat instances of discrimination occur,
pursuant to M.G.L. c. 149, Sec. 6, 454 CMR 25.05(1), 454 CMR
29.04(2)(d), and MA FOM Chapter 9(II) procedures. As discussed below,
OSHA's indices of effectiveness for State and local Government State
Plans provide that, in lieu of monetary penalties as sanctions, a
complex system 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)(x)). Thus, OSHA
has found the Massachusetts State Plan to have met the statutory and
regulatory requirements for initial plan approval with respect to its
nondiscrimination protections.
5. Imminent Danger Procedures
A State Plan is required to provide for the prompt restraint or
elimination of conditions or practices in places of employment which
could reasonably be expected to cause death or serious physical harm
immediately or before the imminence of such danger can be eliminated
through enforcement procedures otherwise provided for by the State Plan
(29 CFR 1956.11(c)(2)(vii)).
In the case of such imminent danger, the DLS has the authority to
issue a stop work order for violations of safety regulations pursuant
to 454 CMR 25.03(7). The Attorney General may bring a civil action for
declaratory or injunctive relief to enforce any order of the DLS
pursuant to 454 CMR 25.05(4), as well as M.G.L. c. 149, Sec. Sec. 2
and 6\1/2\. 454 CMR 25.08 provides that the DLS will follow procedures
in 29 CFR 1903, which is incorporated by 454 CMR 25.02, for cases of
imminent danger, and the MA FOM Chapter 11 also has imminent danger
procedures. These procedures include that, upon discovering conditions
or practices constituting an imminent danger, the inspector will
immediately address the issue with the State or local Government
employer and ask the employer to notify employees and remove them from
exposure. If the employer does not or cannot voluntarily eliminate the
hazard or remove affected employees from exposure, the DLS inspector
will immediately notify the Program Supervisor. If necessary, the
Program Supervisor will consult with the DLS's General Counsel, the
Massachusetts State Police, and the Attorney General, and take action
to eliminate the imminent danger to the State or local Government
employees as soon as possible (Document ID 0048, pp. 19-20).
6. Right of Entry; Advance Notice
Section 18(c)(3) of the OSH Act requires State Plans to provide for
a right of entry to inspect workplaces that is at least as effective as
Federal OSHA's right under section 8 of the OSH Act, and which includes
a prohibition on advance notice of inspections (29 U.S.C. 667(c)(3); 29
CFR 1956.10(e) and (f)).
Under the Massachusetts State Plan, inspectors have the authority
to enter any place of employment without delay and at reasonable times,
pursuant to M.G.L. c. 149, Sec. Sec. 6\1/2\, 10 and 17 and 454 CMR
25.03(1)(a) (Document ID 0048, p.17). Anyone providing advance notice
of any inspection, without permission from the Director, will be
punished per M.G.L. c. 268A, Sec. Sec. 23 & 26 and 454 CMR 25.03(4).
Incorporated 29 CFR 1903.6 provides four exceptions to the prohibition
of providing advance notice, which are: (1) in cases of imminent
danger; (2) where the inspection can most effectively be conducted
after regular business hours or where special preparations are
necessary; (3) where necessary to assure the presence of the employer
and employees or needed personnel; (4) or in other circumstances where
the Director determines that the giving of advance notice would enhance
the probability of an effective and thorough inspection (Document ID
0048, pp. 18-19).
The five commenters that provided nearly identical public comments
in support of OSHA's proposal to grant the Massachusetts State Plan
initial approval raised concerns that the Massachusetts State Plan
regulation, 454 CMR 25.03(4), allows advance notice of inspections if
authorized by ``the Director'' without further limitation or reference
to 29 CFR 1903.6 (Document ID 0049; 0050; 0051; 0054; 0056). The
commenters request that the DLS be required to provide details on when
and why the Director would give permission during the developmental
period. In response to these concerns, OSHA notes, as discussed above,
that the Massachusetts State Plan has adopted through rulemaking and
incorporated the requirements of 29 CFR 1903.6, and thus is subject to
their limitations. Further, OSHA finds that the reference to ``the
Director'' in 454 CMR 25.03(4) is consistent with 29 CFR 1903.6, which
vests decision-making authority with regard to giving advance notice of
inspections with OSHA Area Directors. Finally, 454 CMR 25.03(4) makes
clear that sanctions are available under M.G.L. c. 268A, sections 23
and 26, for persons who give advance notice of any inspection without
authority from the DLS Director. Based on this, OSHA has determined
that the Massachusetts State Plan's requirements regarding advance
notice of inspections are at least as effective as Federal OSHA's
requirements.
7. Citations, Sanctions, and Abatement
A State Plan for State and local Government must provide for prompt
notice to State and local Government employers and employees when
alleged violations have occurred, including proposed abatement
requirements (29 CFR 1956.11(c)(2)(ix)). The State Plan must further
provide the authority for effective sanctions to be issued against
employers violating State occupational safety and health standards. In
lieu of monetary penalties as sanctions, a
complex system 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)(x)).
The DLS's authority to issue Civil Citations and penalties is
established in M.G.L. c. 149, Sec. Sec. 6 and 6\1/2\, 454 CMR 25.00,
and 454 CMR 29.00, and 29 CFR part 1903, as incorporated by 454 CMR
25.02. If an inspector believes that a violation of a safety and health
standard exists, the inspector will issue a written Order to Correct
within 180 days of the completion of the inspection process. This
report will describe the nature of the violation, including reference
to the appropriate regulation, the corrective action to abate the
violation, and an abatement date for each violation, pursuant to 454
CMR 25.05(2). The DLS shall provide written notification to the
appropriate governing official, public administrator, agency head, and/
or personnel director, pursuant to 454 CMR 25.05(3). No reports will be
issued after 180 days from the initiation of an inspection.
Massachusetts will amend 454 CMR 25.05(2) during its developmental
period to reflect this policy (Document ID 0048, p. 22).
The Director has the discretion to issue civil penalties of up to
$1,000 per violation, pursuant to M.G.L. c. 149, Sec. 6, and 454 CMR
29.04(2)(d). The DLS generally issues a Written Warning as the first
enforcement action taken against a State or local Government employer.
However, an employer's failure to correct a violation within the period
of time specified in a Written Warning and Order to Correct issued by
the DLS may result in the issuance of a Civil Citation or other
enforcement action. The DLS may also issue penalties as a first method
of enforcement, without a prior written warning, depending on the
gravity of the violation and when the violation warrants such action.
The DLS has authority to take other enforcement actions, including
issuing a Stop Work Order in cases of imminent danger or other cases as
deemed appropriate, and the Massachusetts Attorney General may bring a
civil action for declaratory or injunctive relief where necessary
(Document ID 0048, pp. 23-26).
The DLS will offer appropriate abatement assistance during the
walkaround to explain how workplace hazards might be eliminated and
advise a State or local Government employer of apparent violations and
other pertinent issues during the closing conference, in the interest
of providing the employer an opportunity to reduce the risk to
employees from that hazard. In some circumstances, the employer's
immediate correction or initiation of steps to abate a hazard during
the inspection may result in a good faith reduction in any proposed
penalty, pursuant to 29 CFR 1903.15(b) and (c) as incorporated by 454
CMR 25.02, 454 CMR 29.00 and the MA FOM Chapter 6(III)(B)(3)(b)
(Document ID 0048, p. 23).
Covered employers must provide documentation of abatement pursuant
to 29 CFR 1903.19(d), incorporated by 454 CMR 25.02 and the MA FOM
Chapter 6(X)(C), or a follow-up inspection may be scheduled after the
abatement time frame has expired. A written response from the employer
will be evaluated by the DLS for completeness and appropriateness in
relation to the report. If the written response is inadequate, a
follow-up inspection can be scheduled after the abatement time frame,
per the MA FOM Chapter 7(XI)(B). The results of the follow-up
inspection will then be documented in a report that includes any
corrective measures taken by the employer. This report will be sent to
the complainant if the original inspection was initiated by a
complaint. The complainant may refute or question any abatement
measure, per the MA FOM (Document ID 0048, p. 23).
8. Contested Cases
A State Plan for State and local Government employees 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)).
Under the Massachusetts State Plan, any person, State or local
Government employer, or other entity aggrieved by a Civil Citation,
Order, or Penalty for violation of a standard under 454 CMR 25.00,
promulgated pursuant to M.G.L. c. 149, Sec. 6\1/2\, may request that
an administrative hearing be held by submitting a written request to
the Director or their representative within fifteen business days after
the receipt of the Civil Citation or Order, pursuant to M.G.L. c. 149,
Sec. 9 and as detailed in 454 CMR 29.04(6) as referenced by 454 CMR
25.05(1). A State or local Government employer may contest a Civil
Citation, penalty, or abatement period at an informal conference and an
administrative hearing, pursuant to M.G.L. c. 149, Sec. 9 and as
detailed in 454 CMR 29.04(6) as referenced by 454 CMR 25.05(1) and the
MA FOM Chapter 8. Employees or their authorized representatives may
question the reasonableness of abatement periods pursuant to 29 CFR
1903, as adopted in 454 CMR 25.00, M.G.L. c. 149, Sec. 9 as detailed
in 454 CMR 29.04(6) and the MA FOM. Employees or their authorized
representatives may participate in review proceedings pursuant to 29
CFR 1903, as adopted in 454 CMR 25.00, M.G.L. c. 149, Sec. 9 as
detailed in 454 CMR 29.04(6) and the MA FOM Chapter 8.
Informal conferences may be held prior to a formal administrative
hearing pursuant to 29 CFR 1903.20, as incorporated by 454 CMR 25.02
and the MA FOM Chapter 8. At the request of an affected State or local
Government employer, employee, or employee representative, an informal
conference may be held within fifteen business days of receipt of a
Civil Citation to discuss any issues raised by an inspection, citation,
penalty, or intention to appeal. The requesting party may attend the
conference by right, and the other parties shall be afforded the
opportunity to participate in the informal conference.
All administrative hearings shall be held in accordance with the
requirements of M.G.L. c. 30A and 801 CMR 1.00: Standard Adjudicatory
Rules of Practice and Procedure, pursuant to 29 CMR 29.04(6). Any
person, State or local Government employer, or other entity aggrieved
by the decision of an administrative hearing may request judicial
review of the decision by the Superior Court with jurisdiction,
pursuant to M.G.L. c. 149, Sec. 9 and as detailed in 454 CMR 29.04(6),
801 CMR 1.01(13), and M.G.L. c. 30A, Sec. 14 (Document ID 0048, pp.
25-26).
Enforcement Conclusion
OSHA finds that all of the enforcement provisions of the
Massachusetts State Plan described above meet the statutory and
regulatory requirements for initial State Plan approval, or that
Massachusetts has provided sufficient assurances that such requirements
will be met during the developmental period.
F. 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 (29
U.S.C. 667(c)(4)). OSHA's regulations also require OSHA to evaluate
whether a State Plan for State and local Government has or will have a
sufficient number of adequately trained and competent personnel to
discharge its
responsibilities under the Plan (29 CFR 1956.10(g)). 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 U.S.C.
667(c)(5); see also 29 CFR 1956.10(h)).
The Massachusetts State Plan provides assurances of a fully
trained, adequate staff within three years of plan approval, including
a program supervisor, an operations supervisor, 10 safety inspectors
and three health inspectors. The DLS currently has eleven inspectors,
seven safety inspectors, and four health inspectors, all of whom
perform duties related to both enforcement and consultation. If granted
initial approval, the DLS will add three safety enforcement inspectors.
The DLS will redesignate two of its safety enforcement inspectors and
one health inspector to exclusively perform consultation. These re-
designated employees will be part of a separate consultation division
with distinct supervision from the enforcement inspectors. The DLS will
also train one supervisor and two enforcement inspectors to conduct
whistleblower investigations (Document ID 0048, pp. 33-35).
The accomplishment of hiring to achieve staffing goals,
reorganization of the DLS staffing pattern described above, adoption of
OSHA's Mandatory Training Program for OSHA Compliance Personnel
Directive (TED 01-00-019) and Mandatory Training Program for OSHA
Whistleblower Investigators Directive (TED 01-00-020), and
accomplishment of all personnel training consistent with these
Directives, are all included as developmental steps in the
Massachusetts State Plan's timetable for accomplishment within three
years, during the Massachusetts State Plan's developmental period
(Document ID 0048, pp. 37-38).
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 Full Coverage Plans
is not intended, nor is it appropriate, for application to the staffing
needs of State Plans for occupational safety and health programs
covering only State and local Government workers. However, the DLS has
given satisfactory assurances that it will meet the requirements of 29
CFR 1956.10 for an adequately trained and qualified staff sufficient
for the enforcement of standards. The DLS has also given satisfactory
assurances of adequate State matching funds (50 percent) to support the
Plan and is requesting initial Federal funding of $1,250,000, for a
total initial program effort of $2,500,000.
Accordingly, OSHA finds that the Massachusetts State Plan has
provided for sufficient, qualified personnel and adequate funding for
the various activities to be carried out under the Plan.
G. Records and Reports
Section 18(c)(7) of the OSH Act requires State Plans to make
reports to the Assistant Secretary in the same manner as if the Plan
were not in effect (29 U.S.C. 667(c)(7)). State and local Government
State Plans must ensure that covered employers will 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
(29 CFR 1956.10(i)). Section 18(c)(8) of the OSH Act requires State
Plans to make such reports to the Assistant Secretary in such form and
containing such information as they may from time to time require (29
U.S.C. 667(c)(8); 29 CFR 1956.10(j)).
The Massachusetts State Plan requires State and local Government
employers to comply with Recordkeeping and Reporting Requirements at
454 CMR 25.06 and 29 CFR 1904, which is incorporated per 454 CMR 25.02.
Under 454 CMR 25.06 and 29 CFR 1904, the DLS requires State and local
Government employers to maintain accurate records for every
occupational death, and every occupational injury and illness that
results in death, loss of consciousness, days away from work,
restricted work activity or job transfer, or medical treatment beyond
first aid in a manner consistent with OSHA's requirements for private
sector employers.
Covered employers in Massachusetts are required to maintain in each
workplace an OSHA 300 Log, or equivalent, of all recordable
occupational injuries and illnesses for that workplace. Within seven
calendar days after receiving information about a case, the employer
shall: decide if the case is recordable, determine if it is a new case
or a recurrence of an existing one, establish whether the case was
work-related, and decide whether to fill out the OSHA 301 Incident
Report, the Massachusetts Department of Industrial Accidents form, or a
suitable substitute that contains the same information as these first
report of injury forms, pursuant to 29 CFR part 1904, incorporated per
454 CMR 25.02, and 454 CMR 25.06. Covered employers must post an annual
summary of work-related injuries and illnesses for each workplace on
the OSHA 300A form, or equivalent, from February 1 to April 30 of the
year following the year covered by the form in a conspicuous location
where employees can view it and it must be certified by an executive of
the State or local Government employer, pursuant to 29 CFR 1904.32,
incorporated per 454 CMR 25.02. The OSHA 300A Summary of Work-Related
Injuries and Illnesses, the OSHA 301 Injury and Illness Incident
Report, and the OSHA 300 Log of Work-Related Injuries and Illnesses, or
suitable substitutes, must be retained for five years following the end
of the calendar year that the records cover, pursuant to 29 CFR
1904.33, incorporated per 454 CMR 25.02. Such records are available to
the DLS through inspection or by request, pursuant to M.G.L. c. 149,
Sec. Sec. 10 & 17 and 454 CMR 25.03(1)(c) (Document ID 0048, pp. 30-
31).
The Massachusetts State Plan has also provided assurances in its
State Plan that it will continue to participate in the Bureau of Labor
Statistics' Annual Survey of Injuries and Illnesses in the State to
provide detailed injury, illness, and fatality rates for the public
sector. The State Plan 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 (Document ID 0048, p. 31).
Accordingly, OSHA finds that the Massachusetts State Plan meets, or
has adequately provided assurances that it will meet within the
developmental period, the requirements of Sections 18(c)(7) and (8) of
the OSH Act on the employer and State reports to the Assistant
Secretary, as required for initial State Plan approval.
H. Voluntary Compliance Program
State Plans for State and local Government employees must undertake
programs to encourage voluntary compliance by covered employers and
employees, such as by conducting training and consultation, and
encouraging agency self-inspection programs (29 CFR
1956.11(c)(2)(xii)).
The Massachusetts State Plan provides that the DLS will continue to
provide and conduct educational programs for public employees
specifically designed to meet the regulatory requirements and needs of
covered employers. 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. The DLS
has conducted over 250 on-site consultations (i.e., voluntary
compliance inspections) for State and local Government workplaces since
2015. The DLS will continue to offer this service as it is a vital
component of creating a culture of safety and proactively preventing
accidents. 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 Massachusetts State Plan's enforcement program
(Document ID 0048, p. 28).
The DLS will adopt OSHA's regulation governing Consultation
Agreements, 29 CFR 1908, during the developmental period. The DLS has
also agreed to adjust its organizational structure to ensure separation
between enforcement and compliance assistance (Document ID 0048, p.
28).
OSHA finds that the Massachusetts State Plan provides for the
establishment and administration of an effective voluntary compliance
program.
V. Decision
OSHA has conducted a careful review of the Massachusetts State Plan
for the development and enforcement of State standards applicable to
Massachusetts State and local Government employment, and the record
developed during the above-described proceedings, including public
comments received in support of OSHA's June 30, 2022, proposal. Based
on this review, and on the assurances provided by the Massachusetts
State Plan of the steps that it will take during the developmental
period, OSHA has determined that the requirements and criteria for
initial approval of a developmental State Plan have been met. The
Massachusetts State Plan is hereby approved as a developmental State
Plan for State and local Government under Section 18 of the OSH Act.
OSHA notes that Massachusetts already has authority to enforce and
is carrying out enforcement of its occupational safety and health
standards in Massachusetts places of State and local Government
employment. However, this determination by OSHA to grant the
Massachusetts State Plan initial approval makes Massachusetts eligible
to apply for and receive up to 50% matching Federal grant funding, as
authorized by the OSH Act under section 23(g) (29 U.S.C. 672(g)). In
addition, this determination signifies the beginning of the
Massachusetts State Plan's three-year developmental period, during
which Massachusetts will be required to address the developmental steps
identified in the Massachusetts State Plan narrative that is included
in the docket of this rulemaking at www.regulations.gov (29 CFR
1956.2(b)(1)) (Document ID 0048, pp. 37-38). OSHA will publish a
certification notice in the Federal Register to advise the public once
Massachusetts has completed all developmental steps (29 CFR 1956.23; 29
CFR 1902.33; 1902.34).
VI. 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 Massachusetts
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 and is limited to the State of
Massachusetts and its political subdivisions. 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 State and local Government employers as a result of Federal
approval of the Massachusetts State Plan. The approval of a State Plan
for State and local Government employers in Massachusetts is not a
significant regulatory action as defined in Executive Order 12866.
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 consulted
extensively with Massachusetts throughout the development, submission,
and consideration of its 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 Massachusetts initial approval decision
and believes it is consistent with the principles and criteria set
forth in the Executive Order.
VIII. Effective Date
OSHA's decision granting initial Federal approval to the
Massachusetts State and local Government State Plan is effective August
18, 2022. OSHA has determined that good cause exists for making Federal
approval of the Massachusetts State Plan effective upon publication,
pursuant to Section 553(d) of the Administrative Procedure Act.
Massachusetts' program has been in effect for many years, and further
modification of the program will be required over the next three years,
following this decision to grant initial approval. OSHA's proposal
provided an opportunity for the submission of comment and requests for
a public hearing. The seven comments received during this rulemaking
strongly supported OSHA's grant of initial approval. Further, Federal
funds for the Massachusetts State Plan are available through the Fiscal
Year 2022 Omnibus Appropriations Act. Therefore, for these reasons,
this decision is immediately effective.
List of Subjects in 29 CFR Part 1952
Intergovernmental relations, Occupational safety and health,
Reporting and recordkeeping requirements.
Authority and Signature
Douglas L. Parker, 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. 8-2020 (85 FR 58393), and 29 CFR parts 1902 and
1956.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.
For the reasons stated in the preamble, 29 CFR part 1952 is amended
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 B--List of Approved State Plans for State and Local
Government Employees
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2. Add Sec. 1952.29 to read as follows:
Sec. 1952.29 Massachusetts.
(a) The Massachusetts State Plan for State and local Government
employees received initial approval from the Assistant Secretary on
August 18, 2022.
(b) The Plan further provides assurances of a fully trained,
adequate staff within three years of plan approval, including 8 safety
and 3 health compliance officers for enforcement inspections, and 2
safety and 1 health consultants to perform consultation services in the
public sector. The State has assured that it will continue to provide a
sufficient number of adequately trained and qualified personnel
necessary for the enforcement of standards as required by 29 CFR
1956.10. The State has also given satisfactory assurance of adequate
funding to support the Plan.
(c) The plan only covers State and local government employers and
employees within the State. For additional details about the plan,
please visit https://www.osha.gov/dcsp/osp/stateprogs/massachusetts.html.
[FR Doc. 2022-17803 Filed 8-17-22; 8:45 am]
BILLING CODE 4510-26-P
