[Federal Register Volume 67, Number 186 (Wednesday, September 25, 2002)]
[Rules and Regulations]
[Pages 60122-60130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24284]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1902, 1952, 1953, 1954, and 1955

[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), 
Department of Labor.

ACTION: Final rule.

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SUMMARY: The Occupational Safety and Health Administration (OSHA) is 
revising its regulation concerning changes to approved State plans. The 
revised rule streamlines the process for submission, review and 
approval of plan supplements documenting such changes, including 
changes to occupational safety and health standards, and standardizes 
timeframes.

DATES: This final rule will become effective November 25, 2002.

FOR FURTHER INFORMATION CONTACT: Barbara Bryant, Director, Office of 
State Programs, Occupational Safety and Health Administration, U.S. 
Department of Labor, Directorate of Federal-State Operations, Room 
N3700, 200 Constitution Avenue NW., Washington, DC 20210, (202) 693-
2244.

SUPPLEMENTARY INFORMATION:

I. 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 only 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 as well as 
administrative and budgetary information 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 
29 CFR 1902.2 and 1956.2.) If a 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 is required to 
notify OSHA of the change. 29 CFR part 1953 provides the regulatory 
framework for the submission, review and approval of these changes.
    On November 6, 2001, OSHA published notice in the Federal Register 
and requested public comment (66 FR 56043) on its proposed revisions to 
29 CFR part 1953, Changes to State Plans, which were designed to update 
the rule to reflect current practice and experience since its original 
issuance and to streamline the process for submission, review and 
approval of state plan changes. The proposed rule was developed with 
input from all parties involved in the submission and review of State 
plan changes and in conjunction with a Federal/State Task Force after 
interviews with staff in 24 of the 26 States that operate OSHA-approved 
State plans . The proposed regulatory revisions were presented to the 
affected States, and their input was incorporated.
    The public comment period closed on January 7, 2002. OSHA received 
one comment on the proposed rule, from Mr. Peter De Luca, Administrator 
of the Oregon Occupational Safety and Health Division. Mr. De Luca 
expressed his support of the sections of the proposed regulation 
regarding delegation of approval authority to Regional Administrators, 
seeking public comment only on significant differences, and allowing 
electronic submission of all required documents. However, one area 
according to Mr. De Luca that ``has not received adequate attention * * 
* is a definition of ``at least as effective as.'''' He stated that 
without ``adequate guidance'' the term ``at least as effective as'' has 
often been interpreted to mean ``identical to,'' and often some State 
plan innovations are ``viewed as less effective until proven 
otherwise.'' According to Mr. DeLuca,

[[Page 60123]]

States are ``burdened with submitting * * * justification documents to 
defend their programs. Finally, Mr. DeLuca states that the ``lack of 
clarity around `at least as effective as' only stifles and discourages 
creativity [in State plan States] that could result in greater safety 
and health for workers.''
    OSHA greatly appreciates receiving these views and has carefully 
considered them in preparing the final rule. OSHA agrees that the 
principle that State plan requirements are not required to be identical 
is an important statutory feature of the State plans program. The 
language and structure of the part 1953 regulation acknowledge the 
important principle that State plan requirements need not be identical, 
in providing different procedures for ``identical'' and ``different'' 
State plan changes and in eliminating the requirement for a written 
plan supplement for ``identical'' changes. Moreover, throughout its 
history OSHA has repeatedly acknowledged the latitude of States to 
develop alternative ``at least as effective'' requirements.
    OSHA believes it would not be practicable or advisable to issue 
guidance defining the term ``at least as effective.'' The comparative 
test comes up a very broad variety of contexts involving a wide variety 
of State regulations, procedures, and statutory requirements. It would 
be difficult if not impossible to develop a ``one size fits all'' 
definition that works well in all contexts.
    OSHA must and should continue to rely on the States to demonstrate 
that particular State-developed alternative standards or procedures are 
``at least as effective.'' The determination may not always be an easy 
one. Each different plan change should be evaluated individually on its 
own merits within the context of that State's program. For example, in 
making a program change the State may rely, in some instances, on other 
provisions in the State Plan that are not in the Federal program. 
Certainly, in enacting a program change, it is the State rather than 
OSHA that is most likely to have the requisite information to determine 
if the State's program change is ``as effective as'' the Federal 
component.
    OSHA believes that its Part 1953 regulation will not unduly impair 
the State's ability to be ``creative'' and ``innovative'' in seeking 
ways to enhance the health and safety of the workers it covers. OSHA 
does not view State plan changes as ``less effective until proven 
otherwise,'' and we believe that there is nothing in the revised Part 
1953 suggesting this. On the contrary, a State makes the initial 
determination as to whether a particular requirement is ``at least as 
effective'' at the time it adopts and begins to enforce the new 
requirement, and if OSHA disagrees, it must institute an adjudicatory 
rejection proceeding in which the burden of proof rests with OSHA, not 
the State.
    In light of these comments and the absence of any requests for 
significant modification, OSHA is proceeding with the promulgation of a 
final rule which is identical to the proposed rule with only several 
technical modifications which are described below.

II. Summary and Explanation of Final Rule

A. Submission of Plan Changes

    29 CFR part 1953, as originally promulgated, required that whenever 
a State changed any component of a State's plan that the State was 
required to provide a copy of the implementing documents, e.g., 
standards, regulations, operating policies and procedures, 
administrative and budgetary information, 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 was required whether the change was identical 
to the Federal regulation, policy or procedure or if it differed. OSHA 
then reviewed the change; if it met the approval criteria, OSHA was 
expected to publish a notice announcing the approval of the change; if 
it did not meet the criteria OSHA initiated procedures to reject the 
change.
    The existing regulation required 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 amending 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, if a standard, could not 
``pose an undue 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 a procedural 
formality as there is no issue as to approvability. Under the 
provisions of the revised final rule, States will now be required to 
submit only documentation attesting to their 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 to maintain all other implementing documentation 
of the actual program change (standard, regulation, policy or 
procedure) available for review within the State. No formal approval 
process will be undertaken for such ``identical changes.'' 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 all the 
implementing documents, including documentation as to adoption, and 
submit a written description of the change, which includes the 
identification of and rationale for each of the differences from the 
Federal program. OSHA will then review and either approve or reject the 
plan change.

B. Pre-approval State Enforceability; Federal Review and Approval of 
Plan Change Supplements

    The revised final regulation expressly sets forth OSHA's 
longstanding interpretation of the Act to the effect that States which 
have submitted and obtained Federal approval of a State plan under 
section 18(b) may adopt modifications to their State plan (such as new 
standards, regulations, amendments to State OSHA legislation, or 
revised enforcement procedures) and may implement these modifications 
upon adoption, without prior approval of each particular modification 
by Federal OSHA. Initial 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/
pre-implementation Federal approval of new standards, regulations or 
other requirements issued by States with Federally-approved plans. 
Instead, OSHA reviews these State standards and regulations after they 
are enacted and subsequently submitted to OSHA for review, and, if 
there is reason to believe a particular plan modification fails in some 
way to meet the requirements of the Act, OSHA regulations, both the 
existing rule and this final revised rule, provide that OSHA will 
initiate an adjudicative

[[Page 60124]]

rejection proceeding, in a similar manner to that prescribed by section 
18(d) of the Act for Federal rejection of a State plan. 29 CFR 
1953.23(d)(2) of the existing regulation now recodified as Sec.  
1953.6(e). 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/pre-implementation 
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, 62 FR 31159 (June 6, 1997) 
(approval of California hazard communication standard); 50 FR 46460 
(November 8, 1985) (New Mexico hearing conservation standard)), and has 
been judicially upheld in Florida Citrus Packers v. California, 549 F. 
Supp. 213 (N.D. Cal. 1982). No public comments were received with 
regard to the inclusion of this interpretation in the proposed 
regulation. It is therefore included in the final rule, as proposed.
    The existing regulation provided that the OSHA Regional 
Administrators, by authority delegated from the Assistant Secretary, 
would 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 amended regulation simply states that OSHA 
will review and approve State plan supplements. OSHA will issue 
appropriate written, publicly available, procedures assigning 
organizational responsibility for Federal review and approval of State 
plan supplements. This change provides 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, except the most unusual, plan changes, 
including standards, to Regional Administrators.
    The existing regulation provided 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 revised final rule provides that 
generally, OSHA will seek public comment only if a State plan change 
differs significantly from the comparable Federal program component and 
if 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 existing regulation discussed 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 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 existing regulation required States to submit six copies of all 
plan supplements. This revised final rule requires States to submit 
only one copy and provides for the electronic notification and 
submission of all required documentation.
    One minor change has been made to the proposed regulations, to 
standardize and clarify the time limits for adoption and submission of 
State plan change supplements or other documentation. Under both the 
existing rule and the November 6, 2001 proposed revision, State changes 
in response to new or revised Federal standards were required to be 
adopted within 6 months of adoption of the Federal standard. However, 
plan changes in response to changes in the Federal program other than 
standards were generally required to be both adopted and submitted 
within six months of notification of the Federal change. (States have 
been required by OSHA Instruction but not by regulation to submit all 
new standards within 30 days of adoption.) State-initiated changes not 
involving standards were required to be submitted within 30 days or 6 
months, depending on the nature of the change, under the existing rule, 
and within 60 days or 6 months under the proposal. Evaluation changes 
and developmental changes had set time frames for adoption but not for 
submission in both the existing rule and the proposed revision.
    The final regulation has been modified from the proposal to provide 
uniformity in the time frames for adoption and submission. The 
regulation continues to provide that State standards in response to 
Federal standards must be promulgated within six months of Federal 
adoption. Similarly, changes in response to other Federal program 
changes requiring adoption will now generally be required to be adopted 
(rather than submitted) within six months of the Federal change, still 
allowing some flexibility based on the nature of the change. All 
changes, regardless of type, must now be submitted within 60 days of 
adoption (with the exception of emergency temporary standards which, 
because of their short duration, require submission within 10 days). 
Section 1953.3(b) contains a general statement of this principle, and 
it is specifically stated in the sections on submission of the various 
types of plan changes.
    Conforming technical amendments are also being made to sections in 
Parts 1952, 1954 and 1955 which include references to particular 
sections in Part 1953, to reflect the revisions.

C. 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, and 1956). This was 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). No public comments 
were received, and this Information Collection Request was approved by 
OMB on February 12, 2002 (Approval Number 1218-0247). The November 6, 
2001 Notice of Proposed Rulemaking for this revision of 29 CFR part 
1953

[[Page 60125]]

included OSHA's proposal to reduce the burden hours associated with the 
paperwork requirements of this part. The agency received one comment 
which supported the revision. This final regulation implements a 
significant reduction of the paperwork required of the States by 
reducing the number of Federal Program Changes to which they will be 
required to respond as well as the complexity of those responses. (In 
addition, an automated system to track plan changes is being 
implemented which will also reduce the number of direct inquiries to 
the States for information.) OMB approval of this reduction in burden 
hours is pending.

D. 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)).
Federalism
    Executive Order 13132, ``Federalism,'' (64 FR 43255; Aug. 4, 1999) 
establishes fundamental Federalism criteria to be applied in 
formulating and implementing Federal policies, and requires agencies to 
consult with affected state and local officials in the development of 
regulatory policies. OSHA has included in the Supplementary Information 
section of today's notice a general explanation of the relationship 
between Federal OSHA and the States with approved State plans under the 
Occupational Safety and Health Act. The proposed rule on which today's 
final rule is based was developed in coordination with representatives 
from the State plan States, and opportunities for additional State 
input have been afforded both during the public comment period and 
through consultation with the Occupational Safety and Health State Plan 
Association (OSHSPA), the organization of State agencies which 
administer Federally-approved plans.
Executive Order
    This final rule has been deemed not significant under Executive 
Order 12866.

List of Subjects in 29 CFR Parts 1902, 1952, 1953, 1954, and 1955

    Administrative practice and procedure, 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 Occupational Safety and Health Act of 
1970 (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 19th day of September, 2002.
John L. Henshaw,
Assistant Secretary of Labor.


    Accordingly, 29 CFR Ch. XVII is amended as follows:
    1. 29 CFR Part 1953 is revised to read as follows:

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 when changes 
are required as a result of the continuing evaluation of the State 
program. Such changes are called ``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. Such changes are 
called ``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.

[[Page 60126]]

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.
    (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. All plan change supplements or 
required documentation must be submitted within 60 days of adoption of 
the change. 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, within 60 days of adoption of the change, 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 within 60 
days of adoption of the change.
    (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), when the 
developmental step is scheduled for completion, OSHA shall

[[Page 60127]]

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 60 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 adopt a corresponding change 
or submit 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 be required 
prior to adoption.
    (4) If the State change is different from the Federal program 
change, the State shall submit one copy of the required supplement 
within 60 days of State adoption. 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 that it has adopted the change, such 
as the cover page of an implementing directive or a notice of 
promulgation, within 60 days of State adoption.
    (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 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 within 60 days of adoption of the change. 
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 that it has adopted the change, 
such as the cover page of an implementing directive or a notice of 
promulgation, within 60 days of adoption of 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, e.g., changes to the State's legislation, and 
submit a supplement within 60 days. Other State initiated supplements 
must be submitted within 60 days 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

[[Page 60128]]

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 within 60 days 
of State promulgation 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. 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 within 60 days of State promulgation 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 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.

PART 1902--[AMENDED]

    2. The authority citation for part 1902 is revised to read as 
follows:

    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).


    3. In Sec.  1902.31, in the definition of ``developmental step,'' 
the last sentence is revised to read as follows:


Sec.  1902.31  Definitions.

* * * * *
    Developmental step * * * (See 29 CFR 1953.4(a).)

    4. Section 1902.33 is revised to read as follows:


Sec.  1902.33  Developmental period.

    Upon the commencement of plan operations after the initial approval 
of a State's plan by the Assistant Secretary, a State has three years 
in which to complete all of the developmental steps specified in the 
plan as approved. Section 1953.4 of this chapter sets forth the 
procedures for the submission and consideration of developmental 
changes by OSHA. Generally, whenever a State completes a developmental 
step, it must submit the resulting plan change as a supplement to its 
plan to OSHA for approval. OSHA's approval of such changes is then 
published in the Federal Register and the pertinent subparts of part 
1952 of this chapter are amended to reflect the completion of a 
developmental step.

PART 1952--[AMENDED]

    5. The authority citation for part 1952 is revised to read as 
follows:

    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).

[[Page 60129]]

Subpart F--Washington

    6. Section 1952.125(a) is amended by revising paragraph (a) to read 
as follows:


Sec.  1952.125  Changes to approved plans.

    (a) In accordance with part 1953 of this chapter, the following 
Washington plan changes were approved by the Assistant Secretary on 
August 4, 1980.
* * * * *

Subpart K--California

    7. Section 1952.175 is amended by revising paragraphs (a), (c), 
(d), (e), (f), (g), and (h) to read as follows:


Sec.  1952.175  Changes to approved plans.

    (a) In accordance with part 1953 of this chapter, the California 
carcinogen program implemented on January 1, 1977, was approved by the 
Assistant Secretary on March 6, 1978.
* * * * *
    (c) In accordance with part 1953 of this chapter, California 
amended its employer recordkeeping and reporting requirements effective 
November 4, 1978, so as to provide employee access to the employer's 
log and summary of occupational injuries and illnesses.
    (d) In accordance with part 1953 of this chapter, California's 
liaison with the Occupational Health Centers, implemented on April 25, 
1979, was approved by the Assistant Secretary on July 25, 1980.
    (e) In accordance with part 1953 of this chapter, the California 
Hazard Alert System, implemented in July 1979, was approved by the 
Assistant Secretary on July 25, 1980.
    (f) In accordance with part 1953 of this chapter, the revised 
stratification of the Safety Engineer Series, adopted by California on 
July 1, 1979, was approved by the Assistant Secretary on January 12, 
1981.
    (g) In accordance with part 1953 of this chapter, California's 
Small Employer Voluntary Compliance Program, implemented on March 1, 
1981, was approved by the Assistant Secretary on August 2, 1983.
    (h) In accordance with part 1953 of this chapter, the California 
Cooperative Self-Inspection Program was approved by the Assistant 
Secretary on August 1, 1986.
* * * * *

Subpart O--Maryland

    8. Section 1952.212(a) is amended by revising paragraph (a) to read 
as follows:


Sec.  1952.212  Completion of developmental steps and certification.

    (a) In accordance with part 1953 of this chapter, the Maryland 
occupational safety and health standards were approved by OSHA on 
October 3, 1974.
* * * * *

Subpart DD--New Mexico

    9. Section 1952.367 is amended by revising paragraph (b) to read as 
follows:


Sec.  1952.367  Changes to approved plans.

* * * * *
    (b) In accordance with part 1953 of this chapter, New Mexico's 
State plan amendment, dated January 3, 1997, excluding coverage of all 
private sector employment on Federal military facilities and bases (see 
Sec.  1952.365), and, to the extent permitted by applicable law, over 
tribal or private sector employment within any Indian reservation and 
lands under the control of a tribal government, from its State plan was 
approved by the Acting Assistant Secretary on September 24, 1997.

Subpart EE--Virginia

    10. Section 1952.372 is amended by revising paragraph (p) to read 
as follows:


Sec.  1952.372  Completion of developmental steps and certification.

* * * * *
    (p) In accordance with part 1953 of this chapter, Virginia 
submitted legislative amendments to Title 40.1 of the Labor Laws of 
Virginia as enacted by the Virginia General Assembly of February 6, 
1979. These legislative amendments, which dealt primarily with the 
Commissioner's delegation authority, procedures concerning Virginia's 
system of judicial review of contested cases, and penalty provisions, 
were approved by the Assistant Secretary on August 15, 1984.
* * * * *

PART 1954--[AMENDED]

    11. The authority citation for part 1954 is revised to read as 
follows:

    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).


    12. Section 1954.3 is amended by revising paragraphs (b)(2), 
(d)(1)(ii) and (d)(1)(iii) to read as follows:


Sec.  1954.3  Exercise of Federal discretionary authority.

* * * * *
    (b) * * *
    (2) Approved State standards. The State must have standards 
promulgated under State law which are identical to Federal standards; 
or have been found to be at least as effective as the comparable 
Federal standards; or have been reviewed by OSHA and found to provide 
overall protection equal to comparable Federal standards. Review of the 
effectiveness of State standards and their enforcement will be a 
continuing function of the evaluation process. Where State standards in 
an issue have not been promulgated by the State or have been 
promulgated and found not to provide overall protection equal to 
comparable Federal standards, the State will not be considered 
operational as to those issues.
* * * * *
    (d)(1) * * *
    (ii) Subject to pertinent findings of effectiveness under this 
part, and approval under Part 1953 of this chapter, Federal enforcement 
proceedings will not be initiated where an employer has posted the 
approved State poster in accordance with the applicable provisions of 
an approved State plan and Sec.  1952.10.
    (iii) Subject to pertinent findings of effectiveness under this 
part, and approval under part 1953 of this chapter, Federal enforcement 
proceedings will not be initiated where an employer is in compliance 
with the recordkeeping and reporting requirements of an approved State 
plan as provided in Sec.  1952.4.
* * * * *

PART 1955--[AMENDED]

    13. The authority citation for part 1955 is revised to read as 
follows:

    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).


    14. Section 1955.2 is amended by revising paragraph (a)(4) to read 
as follows:


Sec.  1955.2  Definitions.

    (a) * * *
    (4) Developmental step includes, but is not limited to, those items 
listed in the published developmental schedule, or any revisions 
thereto, for each plan contained in 29 CFR part 1952. A developmental 
step also includes those items in the plan as approved under section 
18(c) of the Act, as well as those items in the approval decision which 
are subject to evaluations (see e.g., approval of Michigan plan), which 
were deemed necessary to make the State program at least as effective 
as the Federal program within the 3 year developmental period. (See 
part 1953 of this chapter.
* * * * *

    15. Section 1955.3 is amended by revising the introductory text of

[[Page 60130]]

paragraphs (a)(1) and (a)(2) to read as follows:


Sec.  1955.3  General policy.

    (a) * * *
    (1) Whenever the Assistant Secretary determines that under Sec.  
1902.2(b) of this chapter a State has not substantially completed the 
developmental steps of its plan at the end of three years from the date 
of commencement of operations, a withdrawal proceeding shall be 
instituted. Examples of a lack of substantial completion of 
developmental steps include but are not limited to the following:
* * * * *
    (2) Whenever the Assistant Secretary determines that there is no 
longer a reasonable expectation that a State plan will meet the 
criteria of Sec.  1902.3 of this chapter involving the completion of 
developmental steps within the three year period immediately following 
commencement of operations, a withdrawal proceeding shall be 
instituted. Examples of a lack of reasonable expectation include but 
are not limited to the following:
* * * * *
[FR Doc. 02-24284 Filed 9-24-02; 8:45 am]
BILLING CODE 4510-26-P