[Federal Register Volume 66, Number 215 (Tuesday, November 6, 2001)]
[Proposed Rules]
[Pages 56043-56048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27728]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 66, No. 215 / Tuesday, November 6, 2001 / 
Proposed Rules  

[[Page 56043]]



DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1953

[Docket No. T-035]
RIN 1218-AB 91


Changes to State Plans: Revision of Process for Submission, 
Review and Approval of State Plan Changes

AGENCY: Occupational Safety and Health Administration (OSHA), Labor

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Occupational Safety and Health Administration (OSHA) is 
proposing to revise its regulation concerning changes to approved State 
plans. The proposed rule streamlines the process for submission, review 
and approval of plan supplements, including changes to occupational 
safety and health standards, and reorganizes Part 1953 to eliminate 
repetitive language.

DATES: Comments and requests for hearings must be received no later 
than January 7, 2002.

ADDRESSES: Written comments or requests for an informal hearing should 
be submitted to Docket T-035, Docket Office, Room N-2625, Occupational 
Safety and Health Administration, U.S. Department of Labor, 200 
Constitution Avenue, NW., Room N3700, Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT: Bonnie Friedman, Director, Office of 
Information and Consumer Affairs, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room, N-3637, 200 
Constitution Avenue, NW., Washington, DC 20210, (202) 693-1999.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 18 of the Occupational Safety and Health Act of 1970 (the 
Act), 29 U.S.C. 667, provides that States which wish to assume 
responsibility for developing and enforcing their own occupational 
safety and health standards relating to any occupational safety or 
health issues with respect to which a Federal standard has been 
promulgated may do so by submitting and obtaining Federal approval of a 
State plan. State plans may be ``complete'' plans covering both the 
private sector and State and local government employees (see 29 CFR 
part 1902) or State plans limited in scope to State and local 
government employees only (see 29 CFR part 1956). A State plan consists 
of the laws, standards and other regulations, and procedures under 
which the State operates its occupational safety and health program. 
From time to time after initial plan approval, States may, and in many 
cases are required to, make changes to their plans as a result of State 
and Federal legislative, regulatory or administrative actions. State 
plans and their subsequent modifications are required to be ``at least 
as effective as'' the Federal program. (See section 18(c) of the Act, 
and Secs. 1902.2 and 1956.2.) The current regulation requires that if 
the State makes a change to its plan, either on its own initiative or 
in response to a change in the Federal program or as a result of 
program monitoring, the State must notify OSHA of the change, within an 
established time frame, provide a copy of the implementing documents, 
and submit a written description of the change, including the 
identification of and rationale for any differences from the Federal 
program (referred to as a plan supplement). This is currently required 
whether the change is identical to the Federal regulation, policy or 
procedure or if it differs. OSHA then reviews the change; if it meets 
the approval criteria, OSHA publishes a notice announcing the approval 
of the change; if it does not meet the criteria OSHA initiates 
procedures to reject the change. OSHA is proposing to amend its 
regulations regarding State plan changes to streamline the submission, 
review and approval process.

B. Proposed Changes

    The current regulation requires the submission of a formal written 
plan supplement even if the State's change to its program is identical 
to the Federal program component. OSHA is proposing to amend this 
regulation to provide that States must submit written supplements only 
when the State change is different from the Federal program. State 
adoption of a standard, regulation, policy or procedure that is 
identical to the parallel Federal component, an ``identical change,'' 
would per se be at least as effective as the Federal program and could 
not ``pose a burden on interstate commerce'' or otherwise not meet the 
criteria for approval. (A state submission is considered ``identical'' 
if the State adopts the same program provisions and documentation as 
the Federal program with the only differences being those modifications 
necessary to reflect a State's unique structure (e.g., organizational 
responsibility within a State and corresponding titles or internal 
State numbering system).) Therefore, State submission and OSHA review 
of these changes has been superfluous as there is no issue as to 
approvability. Under the proposed revisions, States will be required to 
submit documentation of adoption of the identical Federal change, such 
as the cover page of an implementing State directive or a notice of 
State promulgation for inclusion in the State Plan documentation and 
maintain all other implementing documentation available for review 
within the State. No formal approval process will be undertaken for 
such ``identical change.'' However, if a State makes a change to its 
program which differs from (i.e., is not identical to) the Federal 
program, the State must notify OSHA of the change, within an 
established time frame, provide a copy of the implementing documents, 
and submit a written description of the change, including the 
identification of and rationale for the differences from the Federal 
program. OSHA will then review and either approve or reject the plan 
change.
    The proposed amended regulation also streamlines procedures for the 
review of supplements to State plans and the issuance of advisory 
opinions. The new procedures were developed through a ``process 
improvement initiative'' with input from all State and Federal parties 
involved in the submission, review and approval of plan changes.
    The revised regulation would expressly set forth OSHA's 
longstanding interpretation of the OSH Act to the

[[Page 56044]]

effect that states which have submitted and obtained Federal approval 
of a state plan under 18(b) may adopt modifications to their state plan 
(such new standards, amendments to state OSHA legislation, or revised 
enforcement procedures) and may implement these modifications under 
state law, without prior approval of each particular modification by 
OSHA. Since the inception of the state plans approval program, OSHA has 
understood that the Federal approval of a state plan under section 
18(b) lifts the barrier of Federal preemption and allows the state to 
``adopt and enforce standards'' under state law. Accordingly, OSHA has 
always viewed its enabling statute as not requiring pre-enforcement 
Federal approval of new regulations or other requirements issued by 
states with Federally-approved plans. Instead, OSHA reviews these state 
standards and regulations after they are enacted, and, if there is 
reason to believe a particular plan modification fails in some way to 
meet OSH Act requirements, OSHA regulations provide that OSHA will 
initiate an adjudicative rejection proceeding, in similar manner to 
that prescribed by section 18(d) for Federal rejection of a state plan. 
29 CFR 1953.23(d)(2). Upon completion of such a rejection proceeding 
and any judicial review resulting therefrom, the state plan 
modification would be excluded from the plan and thus subject to 
preemption, but until the prescribed process for rejection is completed 
the state's health or safety regulation or other state plan 
modification would remain enforceable. OSHA's longstanding 
interpretation that section 18 of its enabling statute does not require 
pre-enforcement Federal approval for each new safety or health 
requirement adopted by a state with an approved state plan, is 
consistent with the wording of that statutory provision (which 
envisions that states with approved plans will ``adopt and enforce'' 
their own standards) as well as the Congressional objective set forth 
in section 2(b)(11) of the Act of ``encouraging the states to assume 
the fullest responsibility for the administration and enforcement of 
their own occupational safety and health laws.'' This interpretation 
has routinely been incorporated in OSHA Federal Register notices 
approving or requesting comment on various state plan modifications 
(see, e.g, Approval of California State Standard on Hazard 
Communication Incorporating Proposition 65, (62 FR 31159)), and has 
been judicially upheld in Florida Citrus Packers v. California, 549 F. 
Supp. 213 (N.D. Cal. 1982).
    The current regulation provides that the OSHA Regional 
Administrators, by authority delegated from the Assistant Secretary, 
review and approve State change supplements involving occupational 
safety and health standards. The Assistant Secretary retained sole 
authority for review and approval of change supplements not involving 
standards. The proposed amended regulation simply states that OSHA will 
review and approve State plan supplements. Following final 
promulgation, OSHA will issue appropriate written, publicly available, 
procedures assigning organizational responsibility for Federal review 
and approval of State plan supplements. This change will provide the 
Assistant Secretary with the flexibility to modify the strictly 
internal review procedures without the need for formal rulemaking. It 
is OSHA's current intent to assign approval authority for all plan 
changes, including standards, to Regional Administrators.
    The current regulation provides for an opportunity for public 
comment whenever a plan change differs significantly from the Federal 
program and the publication of a Federal Register notice approving all 
State plan changes, even those which are identical to a corresponding 
Federal program component. This proposed rule provides that generally, 
OSHA will seek public comment if a State plan change differs 
significantly from the comparable Federal program component and OSHA 
needs additional information on its compliance with the criteria in 
section 18(c) of the Act, including whether it is at least as effective 
as the Federal program and, in the case of a standard applicable to 
products used or distributed in interstate commerce, whether it is 
required by compelling local conditions or unduly burdens interstate 
commerce. After public comments are reviewed, a Federal Register notice 
will be published either approving the state plan modification or 
announcing OSHA's intention to initiate proceedings to reject it.
    The current regulation discusses four types of plan changes 
(developmental, in response to Federal program changes, as a result of 
program evaluation, or at the State's initiative), with the submission 
and review process for each type addressed separately. Because all plan 
supplements will be subject to the same review and approval process, 
OSHA reorganized the proposed regulation to first address the 
submission of each of the four types of plan supplements, followed by 
one section on the review and approval of all types of supplements.
    The current regulation requires States to submit six copies of all 
plan supplements. This proposal requires states to submit only one copy 
and provides for the electronic notification and submission of all 
required documentation.
    Conforming technical amendments will also be made to sections in 
parts 1952, 1954 and 1955 which include references to particular 
sections in part 1953, to reflect the revisions.

C. Public Participation

    Interested persons are invited to submit written data, views and 
arguments with respect to this proposed revision. These comments must 
be submitted on or before January 7, 2002, in duplicate to Docket T-
035, Docket Office, Room N-2625, U.S. Department of Labor, OSHA, 200 
Constitution Avenue, NW., Washington, DC 20210, (202) 693-2350. 
Comments under 10 pages long may be sent by telefax to the Docket 
Office at (202) 693-1648, provided that the original and one copy of 
the comment are sent to the Docket Office immediately thereafter. 
Electronic comments may be submitted on the Internet at: 
ecomments.osha.gov but must be followed by a mailed submission in 
duplicate. Written submissions must clearly identify the issues which 
are addressed and the position taken with respect to each issue.

D. Paperwork Reduction Act

    On September 4, 2001, OSHA published notice in the Federal Register 
(66 FR 46291) providing a 60 day opportunity for public comment on the 
information collection requirements associated with Federal regulations 
governing OSHA-approved State plans (29 CFR parts 1902, 1952, 1953, 
1954, 1955, 1954). This is part of a pre-clearance process under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3506(c)(2)(A)), prior to 
review by the Office of Management and Budget (OMB). The burden 
associated with the current 1953 regulation was estimated to be 2,360 
hours. This reflects the information that the States must provide to 
OSHA to keep their State plans up-to-date, but not the usual and 
customary activity associated with program operation, such as 
promulgation of standards, adoption of regulations, and development of 
policies. Final action on the proposed regulatory revision covered by 
today's notice will likely result in a reduction in that burden 
estimate. At that time, approval of appropriate adjustments to the 
related

[[Page 56045]]

information collection burden hours will be sought.

E. Regulatory Review

Regulatory Flexibility Act

    OSHA certifies pursuant to the Regulatory Flexibility Act of 1980 
(5 U.S.C. 601 et seq.) that the proposed revisions will not have a 
significant economic impact on a substantial number of small entities. 
These proposed regulations apply only to certain state agencies and 
would not place small units of government under any new or different 
requirements, nor would any additional burden be placed upon the State 
government beyond the responsibilities already assumed as part of the 
approved plan.

Unfunded Mandates Reform Act

    The procedures in 29 CFR part 1953 for submission and approval of 
plan changes apply only to states which have voluntarily submitted a 
state plan for OSHA approval under the OSH Act, and accordingly these 
procedures do not meet the definition of a ``Federal intergovernmental 
mandate'' under section 421(5) of UMRA (2 U.S.C. 658(5)).

List of Subjects in 29 CFR Part 1953

    Intergovernmental relations, Law enforcement, Occupational safety 
and health, Reporting and recordkeeping requirements.

Authority

    This document was prepared under the direction of John L. Henshaw, 
Assistant Secretary of Labor for Occupational Safety and Health. It is 
issued under section 18 of the OSH Act (29 U.S.C. 667), and Secretary 
of Labor's Order No. 3-2000 (65 FR 50017, August 16, 2000).

    Signed at Washington, DC this 26th day of October, 2001.
John L. Henshaw,
Assistant Secretary of Labor.

    29 CFR Part 1953 would be revised as set forth below:

PART 1953--CHANGES TO STATE PLANS

Sec.
1953.1  Purpose and scope.
1953.2  Definitions.
1953.3  General policies and procedures.
1953.4  Submission of plan supplements.
1953.5  Special provisions for standards changes.
1953.6  Review and approval of plan supplements.

    Authority: Sec. 18, 84, Stat. 1608 (29 U.S.C. 667); Secretary of 
Labor's Order No. 3-2000 (65 FR 50017, August 16, 2000).


Sec. 1953.1  Purpose and scope.

    (a) This part implements the provisions of section 18 of the 
Occupational Safety and Health Act of 1970 (``OSH Act'' or the ``Act'') 
which provides for State plans for the development and enforcement of 
State occupational safety and health standards. These plans must meet 
the criteria in section 18(c) of the Act, and part 1902 of this chapter 
(for plans covering both private sector and State and local government 
employers) or part 1956 of this chapter (for plans covering only State 
and local government employers), either at the time of submission or--
where the plan is developmental--within the three year period 
immediately following commencement of the plan's operation. Approval of 
a State plan is based on a finding that the State has, or will have, a 
program, pursuant to appropriate State law, for the adoption and 
enforcement of State standards that is ``at least as effective'' as the 
Federal program.
    (b) When submitting plans, the States provide assurances that they 
will continue to meet the requirements in section 18(c) of the Act and 
part 1902 or part 1956 of this chapter for a program that is ``at least 
as effective'' as the Federal. Such assurances are a fundamental basis 
for approval of plans. (See Sec. 1902.3 and Sec. 1956.2 of this 
chapter.) From time to time after initial plan approval, States will 
need to make changes to their plans. This part establishes procedures 
for submission and review of State plan supplements documenting those 
changes that are necessary to fulfill the State's assurances, the 
requirements of the Act, and part 1902 or part 1956 of this chapter.
    (c) Changes to a plan may be initiated in several ways. In the case 
of a developmental plan, changes are required to document establishment 
of those necessary structural program components that were not in place 
at the time of plan approval. These commitments are included in a 
developmental schedule approved as part of the initial plan. These 
``developmental changes'' must be completed within the three year 
period immediately following the commencement of operations under the 
plan. Another circumstance requiring subsequent changes to a State plan 
would be the need to keep pace with changes to the Federal program, or 
``Federal Program Changes.'' A third situation would be changes 
required as a result of the continuing evaluation of the State 
program--``evaluation changes.'' Finally, changes to a State program's 
safety and health requirements or procedures initiated by the State 
without a Federal parallel could have an impact on the effectiveness of 
the State program--``State-initiated changes.'' While requirements for 
submission of a plan supplement to OSHA differ depending on the type of 
change, all supplements are processed in accordance with the procedures 
in Sec. 1953.6.


Sec. 1953.2  Definitions.

    (a) OSHA means the Assistant Secretary of Labor for Occupational 
Safety and Health, or any representative authorized to perform any of 
the functions discussed in this part, as set out in implementing 
Instructions.
    (b) State means an authorized representative of the agency 
designated to administer a State plan under Sec. 1902.3(b) of this 
chapter.
    (c) Plan change means any modification made by a State to its 
approved occupational safety and health State plan which has an impact 
on the plan's effectiveness.
    (d) Plan supplement means all documents necessary to accomplish, 
implement, describe and evaluate the effectiveness of a change to a 
State plan which differs from the parallel Federal legislation, 
regulation, policy or procedure. (This would include a copy of the 
complete legislation, regulation, policy or procedure adopted; an 
identification of each of the differences; and an explanation of how 
each provision is at least as effective as the comparable Federal 
provision.)
    (e) Identical plan change means one in which the State adopts the 
same program provisions and documentation as the Federal program with 
the only differences being those modifications necessary to reflect a 
State's unique structure (e.g., organizational responsibility within a 
State and corresponding titles or internal State numbering system). 
Different plan change means one in which the State adopts program 
provisions and documentation that are not identical as defined in this 
paragraph.
    (g) Developmental change is a change made to a State plan which 
documents the completion of a program component which was not fully 
developed at the time of initial plan approval.
    (h) Federal program change is a change made to a State plan when 
OSHA determines that an alteration in the Federal program could render 
a State program less effective than OSHA's if it is not similarly 
modified.

[[Page 56046]]

    (i) Evaluation change is a change made to a State plan when 
evaluations of a State program show that some substantive aspect of a 
State plan has an adverse impact on the implementation of the State's 
program and needs revision.
    (j) State-initiated change is a change made to a State plan which 
is undertaken at a State's option and is not necessitated by Federal 
requirements.


Sec. 1953.3  General policies and procedures.

    (a) Effectiveness of State plan changes under State law. Federal 
OSHA approval of a State plan under section 18(b) of the OSH Act in 
effect removes the barrier of Federal preemption, and permits the state 
to adopt and enforce state standards and other requirements regarding 
occupational safety or health issues regulated by OSHA. A State with an 
approved plan may modify or supplement the requirements contained in 
its plan, and may implement such requirements under State law, without 
prior approval of the plan change by Federal OSHA. Changes to approved 
state plans are subject to subsequent OSHA review. If OSHA finds reason 
to reject a State plan change, and this determination is upheld after 
an adjudicatory proceeding, the plan change would then be excluded from 
the State's Federally-approved plan.
    (b) Required State plan notifications and supplements. Whenever a 
State makes a change to its legislation, regulations, standards, or 
major changes to policies or procedures, which affect the operation of 
the State plan, the State shall provide written notification to OSHA. 
When the change differs from a corresponding Federal program component, 
the State shall submit a formal, written plan supplement. When the 
State adopts a provision which is identical to a corresponding Federal 
provision, written notification, but no formal plan supplement, is 
required. However, the State is expected to maintain the necessary 
underlying State document (e.g., legislation or standard) and to make 
it available for review upon request. Submission of all notifications 
and supplements may be in electronic format.
    (c) Plan supplement availability. Copies of all principal documents 
comprising the State plan, whether approved or pending approval, shall 
be available for inspection and copying at the Federal and State 
locations specified in the subpart of part 1952 of this chapter 
relating to each State plan. The underlying documentation for identical 
plan changes shall be maintained by the State and shall similarly be 
available for inspection and copying at the State locations. Annually, 
States shall submit updated copies of the principal documents 
comprising the plan, or appropriate page changes, to the extent that 
these documents have been revised. To the extent possible, plan 
documents will be maintained and submitted by the State in electronic 
format and also made available in such manner.
    (d) Advisory opinions. Upon State request, OSHA may issue an 
advisory opinion on the approvability of a proposed change which 
differs from the Federal program prior to promulgation or adoption by 
the State and submission as a formal supplement.
    (e) Alternative procedures. Upon reasonable notice to interested 
persons, the Assistant Secretary may prescribe additional or 
alternative procedures in order to expedite the review process or for 
any other good cause which may be consistent with the applicable laws.


Sec. 1953.4  Submission of plan supplements.

    (a) Developmental changes.
    (1) Sections 1902.2(b) and 1956.2(b) of this chapter require that 
each State with a developmental plan must set forth in its plan, as 
developmental steps, those changes which must be made to its initially-
approved plan for its program to be at least as effective as the 
Federal program and a timetable for making these changes. The State 
must notify OSHA of a developmental change when it completes a 
developmental step or fails to meet any developmental step.
    (2) If the completion of a developmental step is the adoption of a 
program component which is identical to the Federal program component, 
the State need only submit documentation, such as the cover page of an 
implementing directive or a notice of promulgation, that it has adopted 
the program component, but must make the underlying documentation 
available for Federal and public review upon request.
    (3) If the completion of a developmental step involves the adoption 
of policies or procedures which differ from the Federal program, the 
State must submit one copy of the required plan supplement.
    (4) When a developmental step is missed, the State must submit a 
supplement which documents the impact on the program of the failure to 
complete the developmental step, an explanation of why the step was not 
completed on time and a revised timetable with a new completion date 
(generally not to exceed 90 days) and any other actions necessary to 
ensure completion. Where the State has an operational status agreement 
with OSHA under Sec. 1954.3 of this chapter, the State must provide an 
assurance that the missed step will not affect the effectiveness of 
State enforcement in any issues for which the State program has been 
deemed to be operational.
    (5 ) If the State fails to submit the required documentation or 
supplement, as provided in Sec. 1953.4(a)(2), (3) or (4) above, when 
the developmental step is scheduled for completion, OSHA shall notify 
the State that documentation or a supplement is required and set a 
timetable for submission of any required documentation or supplement, 
generally not to exceed 90 days.
    (b) Federal Program changes.
    (1) When a significant change in the Federal program would have an 
adverse impact on the ``at least as effective'' status of the State 
program if a parallel state program modification were not made, State 
adoption of a change in response to the Federal program change shall be 
required. A Federal program change that would not result in any 
diminution of the effectiveness of a State plan compared to Federal 
OSHA generally would not require adoption by the State.
    (2) Examples of significant changes to the Federal program that 
would normally require a State response would include a change in the 
Act, promulgation or revision of OSHA standards or regulations, or 
changes in policy or procedure of national importance. A Federal 
program change that only establishes procedures necessary to implement 
a new or established policy, standard or regulation does not require a 
State response, although the State would be expected to establish 
policies and procedures which are ``at least as effective,'' which must 
be available for review on request.
    (3) When there is a change in the Federal program which requires 
State action, OSHA shall advise the States. This notification shall 
also contain a date by which States must submit either a supplement if 
they adopt a change which differs from the Federal change, or 
documentation of adoption of a program component identical to the 
Federal program component, or, as explained in paragraph (b)(5) of this 
section, a statement why a program change is not necessary. This date 
will generally be six months from the date of notification, except 
where the Assistant Secretary determines that the nature or scope of 
the change requires a different time frame, for example, a change 
requiring legislative action where a State has a biennial legislature 
or a policy of major national implications requiring a shorter 
implementing time frame. State notification of intent may

[[Page 56047]]

be required prior to the plan supplement submission.
    (4) If the State change is different from the Federal program 
change, the State shall submit one copy of the required supplement. The 
supplement shall contain a copy of the relevant legislation, 
regulation, policy or procedure and documentation on how the change 
maintains the ``at least as effective as'' status of the plan.
    (5) If the State adopts a change identical to the Federal program 
change, the State is not required to submit a supplement. However, the 
State shall provide documentation, such as the cover page of an 
implementing directive or a notice of promulgation, that it has adopted 
the change.
    (6) The State may demonstrate why a program change is not necessary 
because the State program is already the same as or at least as 
effective as the Federal program change. Such submissions will require 
review and approval as set forth in Sec. 1953.6.
    (7) Where there is a change in the Federal program which does not 
require State action but is of sufficient national interest to warrant 
indication of State intent, the State may be required to provide such 
notification within a specified time frame.
    (c) Evaluation changes.
    (1) Special and periodic evaluations of a State program by OSHA in 
cooperation with the State may show that some portion of a State plan 
has an adverse impact on the effectiveness of the State program and 
accordingly requires modification to the State's underlying 
legislation, regulations, policy or procedures as an evaluation change. 
For example, OSHA could find that additional legislative or regulatory 
authority may be necessary to effectively pursue the State's right of 
entry into workplaces, or to assure various employee or employer 
rights.
    (2) OSHA shall advise the State of any evaluation findings that 
require a change to the State plan and the reasons supporting this 
decision. This notification shall also contain a date by which the 
State must accomplish this change and submit either the change 
supplement or a timetable for its accomplishment and interim steps to 
assure continued program effectiveness, documentation of adoption of a 
program component identical to the Federal program component, or, as 
explained in paragraph (c)(5) of this section, a statement 
demonstrating why a program change is not necessary.
    (3) If the State adopts a program component which differs from a 
corresponding Federal program component, the State shall submit one 
copy of a required supplement. The supplement shall contain a copy of 
the relevant legislation, regulation, policy or procedure and 
documentation on how the change maintains the ``at least as effective 
as'' status of the plan.
    (4) If the State adopts a program component identical to a Federal 
program component, submission of a supplement is not required. However, 
the State shall provide documentation, such as the cover page of an 
implementing directive or a notice of promulgation, that it has adopted 
the change and shall retain all other documentation within the State 
available for review upon request.
    (5) The State may demonstrate why a program change is not necessary 
because the State program is meeting the requirements for an ``at least 
as effective'' program. Such submission will require review and 
approval as set forth in Sec. 1953.6.
    (d) State-initiated changes.
    (1) A State-initiated change is any change to the State plan which 
is undertaken at a State's option and is not necessitated by Federal 
requirements. State-initiated changes may include legislative, 
regulatory administrative, policy or procedural changes which impact on 
the effectiveness of the State program.
    (2) A State-initiated change supplement is required whenever the 
State takes an action not otherwise covered by this part that would 
impact on the effectiveness of the State program. The State shall 
notify OSHA as soon as it becomes aware of any change which could 
affect the State's ability to meet the approval criteria in parts 1902 
and 1956 of this chapter and submit a supplement within 60 days. Other 
State initiated supplements may be submitted at any time generally not 
to exceed 6 months after the change occurred. The State supplement 
shall contain a copy of the relevant legislation, regulation, policy or 
procedure and documentation on how the change maintains the ``at least 
as effective as'' status of the plan. If the State fails to notify OSHA 
of the change or fails to submit the required supplement within the 
specified time period, OSHA shall notify the State that a supplement is 
required and set a time period for submission of the supplement, 
generally not to exceed 30 days.


Sec. 1953.5  Special provisions for standards changes.

    (a) Permanent standards.
    (1) Where a Federal program change is a new permanent standard, or 
a more stringent amendment to an existing permanent standard, the State 
shall promulgate a State standard adopting such new Federal standard, 
or more stringent amendment to an existing Federal standard, or an at 
least as effective equivalent thereof, within six months of the date of 
promulgation of the new Federal standard or more stringent amendment. 
The State may demonstrate that a standard change is not necessary 
because the State standard is already the same as or at least as 
effective as the Federal standard change. In order to avoid delays in 
worker protection, the effective date of the State standard and any of 
its delayed provisions must be the date of State promulgation or the 
Federal effective date whichever is later. The Assistant Secretary may 
permit a longer time period if the State makes a timely demonstration 
that good cause exists for extending the time limitation. State 
permanent standards adopted in response to a new or revised Federal 
standard shall be submitted as a State plan supplement in accordance 
with Sec. 1953.4(b), Federal Program changes.
    (2) Because a State may include standards and standards provisions 
in addition to Federal standards within an issue covered by an approved 
plan, it would generally be unnecessary for a State to revoke a 
standard when the comparable Federal standard is revoked or made less 
stringent. If the State does not adopt the Federal action, it need only 
provide notification of its intent to retain the existing State 
standard to OSHA within 6 months of the Federal promulgation date. If 
the State adopts a change to its standard parallel to the Federal 
action, it shall submit the appropriate documentation as provided in 
Sec. 1953.4(b)(3) or (4)--Federal program changes. However, in the case 
of standards applicable to products used or distributed in interstate 
commerce where section 18(c)(2) of the Act imposes certain restrictions 
on State plan authority, the modification, revision, or revocation of 
the Federal standard may necessitate the modification, revision, or 
revocation of the comparable State standard unless the State standard 
is required by compelling local conditions and does not unduly burden 
interstate commerce.
    (3) Where a State on its own initiative adopts a permanent State 
standard for which there is no Federal parallel, the State shall submit 
it in accordance with Sec. 1953.4(d)--State-initiated changes.
    (b) Emergency temporary standards.
    (1) Immediately upon publication of an emergency temporary standard 
in the Federal Register, OSHA shall advise the States of the standard 
and that a Federal program change supplement shall be required. This 
notification must also

[[Page 56048]]

provide that the State has 30 days after the date of promulgation of 
the Federal standard to adopt a State emergency temporary standard if 
the State plan covers that issue. The State may demonstrate that 
promulgation of an emergency temporary standard is not necessary 
because the State standard is already the same as or at least as 
effective as the Federal standard change. The State standard must 
remain in effect for the duration of the Federal emergency temporary 
standard which may not exceed six (6) months.
    (2) Within 15 days after receipt of the notice of a Federal 
emergency temporary standard, the State shall advise OSHA of the action 
it will take. State standards shall be submitted in accordance with the 
applicable procedures in Sec. 1953.4(b)--Federal Program Changes, 
except that the required documentation or plan supplement must be 
submitted within 5 days of State promulgation.
    (3) If for any reason, a State on its own initiative adopts a State 
emergency temporary standard, it shall be submitted as a plan 
supplement in accordance with Sec. 1953.4(c), but within 10 days of 
promulgation.


Sec. 1953.6  Review and approval of plan supplements.

    (a) OSHA shall review a supplement to determine whether it is at 
least as effective as the Federal program and meets the criteria in the 
Act and implementing regulations and the assurances in the State plan. 
If the review reveals any defect in the supplement, or if more 
information is needed, OSHA shall offer assistance to the State and 
shall provide the State an opportunity to clarify or correct the 
change.
    (b) If upon review, OSHA determines that the differences from a 
corresponding Federal component are purely editorial and do not change 
the substance of the policy or requirements on employers, it shall deem 
the change identical. This includes ``plain language'' rewrites of new 
Federal standards or previously approved State standards which do not 
change the meaning or requirements of the standard. OSHA will inform 
the State of this determination. No further review or Federal Register 
publication is required.
    (c) Federal OSHA may seek public comment during its review of plan 
supplements. Generally, OSHA will seek public comment if a State 
program component differs significantly from the comparable Federal 
program component and OSHA needs additional information on its 
compliance with the criteria in section 18(c) of the Act, including 
whether it is at least as effective as the Federal program and in the 
case of a standard applicable to products used or distributed in 
interstate commerce, whether it is required by compelling local 
conditions or unduly burdens interstate commerce under section 18(c)(2) 
of the Act.
    (d) If the plan change meets the approval criteria, OSHA shall 
approve it and shall thereafter publish a Federal Register notice 
announcing the approval. OSHA reserves the right to reconsider its 
decision should subsequent information be brought to its attention.
    (e) If a State fails to submit a required supplement or if 
examination discloses cause for rejecting a submitted supplement, OSHA 
shall provide the State a reasonable time, generally not to exceed 30 
days, to submit a revised supplement or to show cause why a proceeding 
should not be commenced either for rejection of the supplement or for 
failure to adopt the change in accordance with the procedures in 
Sec. 1902.17 or part 1955 of this chapter.

[FR Doc. 01-27728 Filed 11-5-01; 8:45 am]
BILLING CODE 4510-26-P