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OSHA Instruction STP 2-1.164 August 12, 1991 Office of State Programs
SUBJECT: Involving State Plan States in the Development of Federal Standards
A. Purpose. This instruction formalizes OSHA's policy to involve the
States administering their own OSHA-approved occupational safety and health
programs, to the maximum extent possible, in the development of new and
revised Federal safety and health standards, and establishes procedures to be
followed by National Office Directorates and Regional Administrators in
providing information on, and obtaining State plan States' input and
participation in, the Federal standard development process.
B. Scope. This instruction applies to OSHA National Office Directorates,
Regional Administrators, and State plan States.
C. Action. The Directorate of Federal-State Operations shall, in
cooperation with other Directorates and Regional Administrators, provide each
of the State plan States, at specified times, information on and an
opportunity to participate in the development of new and revised Federal
safety and health standards. In implementing this instruction, the
procedures in paragraph E. below shall be followed.
D. Background. Section 18 of the Occupational Safety and Health Act of
1970 creates a unique relationship which establishes the basis for the States
to assume a role, somewhat different from that of the general public, with
OSHA in the development and enforcement of occupational safety and health
standards. OSHA presently provides each State the opportunity to participate
in the development of Federal standards on an ad hoc basis by means of
commenting on draft standards (proposed and final), when such drafts are
shared with any outside group, and participating in the Federal standards
promulgation process by commenting on proposed standards and testifying at
hearings. This new policy provides an opportunity for early and substantive
involvement of each State, in which it can also share information with OSHA,
in the course of OSHA's internal deliberations to develop new standards. The
new policy is intended to provide for and protect the full and frank exchange
of views and experiences between an individual State and OSHA officials
during the decision-making process and to prevent predecisional disclosure of
incipient policies or decisions that could disrupt agency procedures.
E. Freedom of Information Act (FOIA) Implications. Any confidential OSHA
rulemaking documents transmitted to State plan States shall be transmitted as
a limited, inter-agency/ intra-agency disclosure, made as part of OSHA's
internal decision-making process, for the purpose of involving the individual
States, who administer Federally approved safety and health plans, in the
standards process. All such confidential rulemaking documents are protected
from disclosure as deliberative predecisional material.
1. State Assurances. Each State plan State shall assure in
writing that confidential OSHA rulemaking documents, and any comments the
State may wish to submit in response to the documents, shall not be released
to or discussed with any person outside of the State agency, and that each
State has adequate authority under State law to assure the confidentiality of
such documents.
2. State Review of State FOIA Laws and Notification. Each State
shall review its authority to protect the confidentiality of the documents
referred to above, and shall notify OSHA of its conclusions.
a. Within 45 calendar days of issuance of this instruction,
each State shall submit in writing to the respective Regional Administrator a
statement as to whether the State has adequate authority under State law to
protect the confidentiality of OSHA rulemaking documents provided to the
State pursuant to this instruction.
b. The Regional Administrator shall forward a copy of each
State's written notification to the Director, Office of State Programs,
immediately upon receipt.
c. If it is concluded that the State does not have the
authority to withhold such documents from disclosure, OSHA will not be able
to include that State in its internal distribution process.
3. State Notification of Requests for Release of Documents. Each
State shall promptly notify the Regional Administrator of any requests for
State release of documents formally or informally. Such requests shall be
referred to the Office of State Programs for coordination with the
appropriate OSHA Standards Directorate for response.
F. Procedures. The major steps that OSHA will implement in providing
State plan States a role in the Federal standards development process are as
follows:
1. Department's Regulatory Program. The Office of State Programs
shall, on an annual basis, forward to each State a copy of the final printed
version of the OSHA portion of the Department's Regulatory Program, after it
is published by the Office of Management and Budget.
2. Semiannual Regulatory Agenda and List of Project
Officers.
a. The Office of State Programs shall forward copies of the
Federal Register notice announcing OSHA's Semiannual Regulatory Agenda, along
with the list identifying staff contacts in the Directorates of Safety
Standards and Health Standards for each rule, to each State so that any State
having or seeking information, or otherwise wishing to have involvement in a
project, may contact the Standards staff directly. Contact is solely at each
State's initiative. (The Semiannual Regulatory Agenda is generally published
by the Department in April and October of each year.)
b. The Directorates of Health Standards and Safety Standards
shall, within 15 days of a request by the Office of State Programs, forward
to the Office of State Programs a list identifying the staff contacts for
each of the proposed rules listed in the Semiannual Regulatory
Agenda.
c. In addition, Standards Directorate staff shall discuss
non-sensitive information with a State when contacted. If a State requests
sensitive or confidential information, the request shall be referred to
designated management officials for a response.
3. Copies of Reports of OSHA Standards Actions.
a. The Directorate of Safety Standards shall provide a copy of
each of its Reports of OSHA Safety Standards Actions and the Directorate of
Health Standards shall provide a copy of each of its Reports of OSHA Health
Standards Actions, which list all safety and health standards projects and
their current promulgation status/projected dates, to the Office of State
Programs. These updates shall be provided at least quarterly and monthly as
possible.
b. The Office of State Programs shall forward to each State a
copy of the Reports of OSHA Standards Actions.
4. Preliminary Input to Standards Development.
a. Whenever it is determined that preliminary input from
experienced field staff is needed as part of the standards development
process, the Office of State Programs shall be notified immediately by the
appropriate Standards Directorate and/or the Office of Field Programs of the
establishment of a Federal standards task group for a particular standard so
the Office of State Programs may notify the Occupational Safety and Health
State Plans Association (OSHSPA) chairperson to coordinate individual State
involvement.
b. The OSHSPA chairperson, in coordination with the Office of
State Programs, will determine whether any State has a particular interest or
expertise in the standard at issue, and invite representatives from one or
more States, with technical expertise on the subject, to express the State's
individual experiences and to give factual information to the Federal
standards task group.
(1) It will be up to each State to volunteer to share its
experience and information with the OSHA standards task
groups.
(2) If a State is interested in participating, its
representative must be willing to travel and will not receive special Federal
reimbursement for travel or other related expenses. In addition, each State
representative, will be expected not only to present the views of and provide
feedback to its own State but to share appropriate information on the
standard's progress with the OSHSPA membership.
5. Notification When Entering State Plan States.
a. Whenever Health Standards, Safety Standards, or Regulatory
Analysis staff (including contractors) make contacts (e.g. telephone surveys
or visits) in a State plan State, including visits to an employer's
establishment for any purpose including the gathering of information to be
used in promulgating standards, they shall give the Regional Administrator
and State designee notice before entering the State. Notification shall be
through the Regional Administrator, who will in turn notify the State, or
directly to the State if the Regional Administrator authorizes. When a
national study is being conducted through a telephone survey, the Office of
State Programs will issue a general notification to all State designees,
based on information provided by Regulatory Analysis.
b. If the State wishes to accompany the Standards or
Regulatory Analysis staff (including contractors) to an employer's
establishment, the State will send only non-compliance
personnel.
c. When a public hearing on any standard is held in a State
plan State, the State Designee will be given an opportunity to make welcoming
remarks and to testify early in the proceeding.
6. Beginning Stages of Standard Development.
a. Early in the standards process, when the Directorates of
Health Standards and Safety Standards send copies of preliminary standard
development information or documents, including but not limited to, initial
staff concepts, early proposals, draft Advance Notices of Proposed Rulemaking
(ANPR), Requests for Information (RFI), or staff drafts to any outside group
or to the Regional Administrators for review and comment, both the Office of
Field Programs and the Office of State Programs shall be sent
copies.
b. The appropriate Standards Directorate shall forward copies
of the preliminary documents to the Regional Administrators through the
Office of Field Programs for review and comment.
c. The Office of State Programs shall forward copies of the
preliminary documents to each State designee for review and comment. State
comments shall be submitted directly to the appropriate Standards Directorate
with copies to the Regional Administrator and the Office of State Programs.
All advance copies of documents are provided to the States under the
non-disclosure terms and conditions established in section E,
above.
7. Draft Regulatory Text.
a. In some cases, the first document developed in the
standards process will be draft regulatory text. The Directorates of Health
Standards and Safety Standards shall send copies of such draft language to
both the Office of Field Programs and the Office of State Programs, at such
times as field review is appropriate.
b. The appropriate Standards Directorate shall forward copies
of draft language to the Regional Administrators through the Office of Field
Programs for review and comment.
c. The Office of State Programs shall forward copies of draft
language to the State designees for review and comment. State comments shall
be submitted directly to the appropriate Standards Directorate for their
consideration with copies to the Regional Administrator and the Office of
State Programs. State comments and all advance copies of documents are
provided to the States under the non-disclosure terms and conditions
established in section E, above.
Note. Each State must be aware that its early participation does
not mean all subsequent drafts will be automatically provided to it. Any
State with a particular interest in the standard should maintain contact with
the standards Project Officer and offer further input.
8. Advance Copy of Standards Federal Register Notice.
a. After the final version of a standard (proposed or final) has
received OMB clearance it is sent to the appropriate Standards Directorate
for final corrections.
b. After OMB suggested corrections are made (but while final
Departmental clearance and Assistant Secretary signature are being obtained),
the appropriate Standards Directorate shall forward to the Office of State
Programs and the Office of Field Programs an advance copy of the standards
Federal Register notice.
c. The appropriate Standards Directorate shall forward to the
Regional Administrators through the Office of Field Programs an advance copy
of the standards Federal Register notice.
d. Depending upon the circumstances unique to each standard, the
Office of State Programs may forward to each State plan State an advance copy
of the standards Federal Register notice, and include in its transmittal
letter the anticipated publication date. These documents, like all other
advance copies will be provided subject to the non-disclosure terms and
conditions established in section E, above (pending publication in the
Federal Register).
(1) If the preamble is extremely long only the Summary and
Regulatory Text will be provided, but upon specific request to the Office of
State Programs or the Office of Field Programs the entire text will be
provided. Short Federal Register notices will be telefaxed with no hard copy
to follow.
(2) Such advance Federal Register notices are provided so that
each State may be prepared to respond to press inquiries and prepare to
initiate its own parallel State promulgation process. However, no discussion
or release of the content or nature of the Federal Register notice may occur
until it is made public Federally through Federal Register
posting/publication, news release or news conference.
e. Every effort will be made to provide such notice of intended
publication to each State as far in advance as possible. However,
circumstances unique to each standard, e.g. need for Secretary of Labor
announcement, and/or Congressional/pending court actions, etc., may limit the
amount of time possible for advance notice.
Gerard F. Scannell Assistant Secretary
DISTRIBUTION: National Office Directorates Regional Administrators State
Designees
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