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OSHA Instruction STP 2-1.17 October 30, 1978

March 17, 1975

Office of the Assistant Secretary

OSHA PROGRAM DIRECTIVE: #75-2

TO: ASSISTANT REGIONS DIRECTORS ASSOCIATE ASSISTANT REGIONAL DIRECTORS ASSOCIATE ASSISTANT SECRETARIES

Subject: Transfer of Responsibility for Review and Approval or Rejection of State Standards

References: 1. Program Directive #72-14, Standards Comparison

2. Memorandum of October 27, 1972, Supplemental Guidelines for the Preparation of Standards Comparison

3. Field Information Memorandum #74-60, Draft Federal Register Notices for State Standards Submitted in Accordance with 29 CFR 1953, "Changes to State Plans" as revised by Field Information Memorandum #74-71

1. Purpose. To transfer the authority for the review and approval or rejection of State standards from the National Office to the Regional Office and to provide procedures for such review and approval or rejection.

2. Directive Affected. This directive supersedes OSHA Program Directive #74-3, Transfer of State Standards Comparison to the Regional Offices, dated February 1, 1974.

3. Background. A major concern of the State plan program in OSHA is that States with approved plans have and will maintain occupational safety and health standards that are at least as effective as the Federal standards. Some States adopt Federal standards and, therefore, do not require a detailed standards comparison. However, other States submit their own standards, thereby necessitating an extensive review and analysis to verify the effectiveness of the State standard as compared with the Federal. In addition, the promulgation of new Federal standards and changes to existing standards require a corresponding action by the State in the form of a supplement or change to the 18(b) plan. These standards additions to State plans also require an evaluation by OSHA to satisfy the "as effective as" criteria. In the past, State standards were reviewed by the Regional Office and then submitted to the National Office for further comparison.

OSHA Instruction STP 2-1.17 October 30, 1978

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Authority for the review and approval of State standards was delegated to the Assistant Regional Directors in 29 CFR 1953.4, published in the Federal Register on February 14, 1974. Program Directive #74-3 set out procedures for the review and approval of these standards, allowing opportunity for public comment on the Federal level for all State standards submissions. Because the regulations, 29 CFR 1953.2, provide that the Assistant Secretary may prescribe alternative procedures to expedite the review process, and since State standards differing from Federal standards must be open to public comment in the States and such comments will be available to the Assistant Regional Director in reaching his decision, it has been decided that State standards which are identical to, or are determined to be at least as effective as, Federal standards may be approved without provision for public comment on the Federal level. Further, proposed revisions to 29 CFR 1953.3 to be published shortly will provide specifically for the approval of such standards without public participation at the Federal level.

The format for the State submission of a standard for comparison with the Federal is explained in Program Directive #72-14 and in the referenced supplementary memorandum dated October 27, 1972. These directions remain in effect.

4. Procedure. The State standards review process will follow these steps:

a. After a standard, either identical to or different from the comparable Federal standard, has been promulgated in accordance with the provisions of an approved State plan, six copies (together with standards comparisons for different standards or a State certificate that the standards submitted are identical to Federal standards with a code comparison if the identical standards are renumbered) should be sent to the Assistant Regional Director. The designee should forward to the Assistant Regional Director one copy of the transcript of any hearing and two copies of any public comment resulting from the State promulgation procedure. For different standards the State should include in the notice inviting public comment a statement inviting comment on whether the standard(s) meets the "at least as effective" criteria in 1902.3(c) and 1902.4(b).

Also, in the case of a different standard the State may send a copy of its standard at an early stage of development for the purpose of receiving an advisory opinion with regard to its approvability. The State also has the option to request that a proposed standard be published for comment at the Federal level concurrent with the publication during the State promulgation procedure. Concurrent publication may be requested either in conjunction with or independent of an advisory opinion. Where the final standard submitted for review is the same as the proposed standard, the comment received during the concurrent publication will meet the requirement for public participation in 4 c(3) below and additional opportunity for public comment need not be provided.

When adopting health standards States should make every effort to adopt a standard identical to the corresponding Federal standard. Where a State adopts a different health standard, it must support the submission with the relevant factual data justifying the standard in accordance with 29 CFR 1902.4(a) (2) and (b)(2)(i), (ii) and (iii).

OSHA Instruction STP 2-1.17 October 30, 1978

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b. The document with copies of any public comment received by the State and a hearing transcript will then be sent to the appropriate Regional staff for review and comparison. This staff is free to seek clarifications and/or technical assistance from other sources, including the National Office, when necessary. Where a health standard is not identical to the comparable Federal standard such standard should be carefully scrutinized for compatibility with the Federal standard and very careful review should be given to additional justification required of the State under Section 4.(a). Further, in order to provide uniformity on a national basis, all different health standards must be submitted to the National Office for review and approval prior to the publication of an approval notice.

c. On the basis of the review, the Assistant Regional Director will decide: whether the standard is identical to the Federal standard; at least as effective as the comparable Federal standard; not at least as effective as the Federal standard; or that more information is needed in order to make a determination.

(1) If the State standard is found to be identical to the Federal standard, the Assistant Regional Director will forward four copies of the standard to the Associate Assistant Secretary for Regional Programs, hereinafter called the Associate Assistant Secretary, with the original and seven copies of the completed notice of approval for publication in the Federal Register. Draft A previously forwarded by FIM #74-60 will continue to be the format for a notice that State standards are identical to Federal standards. Draft D also forwarded by FIM #74-60 is the proper notice of approval for an Emergency Temporary Standard (ETS) that is identical to the Federal standard. The Assistant Regional Director shall complete the review and submit the appropriate notice on an ETS to the National Office within 15 days of submission of the standard by the State. No provision for public comment is necessary in either of these cases.

(2) If the State standard is found to be at least as effective as the Federal standard, the Assistant Regional Director will forward four copies of the standard to the Associate Assistant Secretary, with the original and seven copies of the completed notice of approval for publication in the Federal Register. Draft B forwarded by FIM #74-60 gives the format for a notice that State standards are at least as effective as Federal standards. Draft D would be used for an at least as effective ETS as well as for identical ETS. Again no provision for public comment is necessary in these cases.

(3) If more information is needed before it can be determined whether the standard is at least as effective, the Assistant Regional Director will forward four copies of the standard to

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the Associate Assistant Secretary with the original and seven copies of the completed notice announcing the consideration of an independent State standard for publication in the Federal Register. Any standard, different from Federal standards, which could be considered a product standard as defined in CFR 1902.3 c(2) should be treated in this manner. Also all health standards different from Federal standards will require such publication. Draft C forwarded by FIM #74-60 is the format for a notice inviting public comment on a proposed State standard. If the Assistant Regional Director feels that a public comment period is needed before reaching a decision as to the approvability of an ETS, Draft C can be adapted for that purpose. Assistance by the Office of State Plan Review and Evaluation and the Solicitor's Office will be provided if necessary.

All public comments will be addressed to the Assistant Regional Director, who will decide if they warrant a response and whether a hearing is necessary. After review of the public comments, the Assistant Regional Director will reach a final decision on the State standard.

If the final decision is to approve the standard, the Assistant Regional Director will forward two copies of all public comments generated at the Federal level and the original and seven copies of the completed notice of final decision to the Associate Assistant Secretary. Draft E attached is the format for a final notice of approval of a State standard after public comment.

If the final decision is to reject the standard, the procedure in c(4) below, should be followed.

(4) If the State standard is found to be not at least as effective as the Federal standard, the State should be notified and given a reasonable time, generally not to exceed 30 days for regular standards and 20 days for an ETS to correct or clarify the standard. If the standard then meets the criteria in c(1), (2), or (3) above, the procedures in the appropriate paragraph shall be followed.

If the State standard is still not satisfactory, or if the State refuses to change the standard, a notice should be prepared stating that the standard is subject to rejection and inviting public comment. In the case of an ETS the Assistant Regional Director may elect to reject the standard without an opportunity for comment or may provide for a limited comment period providing that comments have not previously been solicited under c(3) above. Because rejection of a standard raises further implications concerning the State's coverage of the issue involved, and because of the individual nature of each case, the Office of State Plan Review and Evaluation and the Solicitor's Office will provide

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assistance to the Assistant Regional Director in the preparation of this notice and the ensuing rejection procedures. The Assistant Regional Director will forward four copies of the standard, alone with the original and seven copies of the completed notice to the Associate Assistant Secretary.

d. Upon receipt of any of the notices mentioned above, the Associate Assistant Secretary will forward the notices and a copy of the standard to the Office of the Solicitor. Two copies of the standard will be retained by the Associate Assistant Secretary for filing with copies of the State's 18(b) plan, along with any public comments received at the Federal level. The other copy of the standard will be sent to the Associate Assistant Secretary for National Programs for filing in the central standards records. Copies of the standards, Federal Register notices and public comments received in response to Federal publication should be made part of the official 18(b) plan and be available for review by the public in the State, Regional Office and National Office.

e. Upon approval by the Office of the Solicitor, the notice of final decision will be published in the Federal Register.

f. Notice of States' submissions which are proposed as amendments to standards packages in response to an amendment of the Federal standards and are considered minor need not be published immediately in the Federal Register, but may be held for publication until the end of the year of that States' operations.

5. Appeal. Interested persons may appeal decisions reached by the Assistant Regional Directors by means of a letter to the Assistant Secretary of Labor for Occupational Safety and Health, describing the basis of the objection and giving the reasons why the standard appears to be acceptable or unacceptable. This letter should be accompanied by a copy of the standard and a copy of the decision reached by the Assistant Regional Director. The Assistant Secretary will review the decision and may call for additional evidence, if necessary. The complainant will be informed of the Assistant Secretary's determination.

6. Filing. This directive will become effective immediately and adherence to the procedures herein shall begin at once.

John Stender Assistant Secretary of Labor

Attachment

OSHA Instruction STP 2-1.17 October 30 1979

DRAFT E

Occupational Safety and Health Administration

1. Background. On (date), notice was published in the FEDERAL REGISTER (e.g. 39 FR 1002) of the receipt of a standards supplement to the (name of State) State plan. [Summarize briefly the contents of the notice requesting public comment, for example see paragraphs 2 and 3 of Draft C, so that the public is familiar with what is being decided]

Interested persons were afforded 30 days from the date of publication to submit written comments concerning the standards supplement. Further, interested persons were afforded an opportunity to request an informal hearing with respect to the supplement on the basis of substantial objections thereto. No public comments were received, nor was a hearing requested. [If there were comments or a hearing request see 2. below]

2. Decision. Pursuant to the notice of (date of original notice), several comments were received from interested persons and organizations including [list groups who commented.] The [Names of group] requested a hearing.

OSHA Instruction STP 2-1.17 October 30, 1978

In light of the modifications which the State has made in response to the public comments and to comments from and discussions with the Regional Office, there are no significant objections remaining with respect to the supplement. Accordingly, the several requests for a hearing are denied. The public comments, and Regional review of the supplement raised several issues which were addressed by (name of State) in supplementary clarifications and modifications of the supplement. By letter dated (date), from (name of State official) to (name of OSHA official) the State provided the following clarifications and revisions to the supplement for incorporation as part of its plan.

(a) describe revisions or (b) assurances the State gave regarding changing its standards.

[If no revisions were made to the standard supplement as a result of public comments and the ARD has determined that none are necessary and the questions that necessitated public comment do not present a problem in approving the supplement than the previous paragraph beginning "In light of the modifications" etc. should not be used. Instead the notice should state that "Following review of the standards supplement and the public comments, the Assistant Regional Director has determined that there were no significant objections presented and accordingly, the requests for a hearing

OSHA Instruction STP 2-1.17 October 30, 1978

are denied. With regard to the public comments, the Assistant Regional Director has determined that no changes or modifications by the State are necessary for the following reasons:

(a) [give reasons]

(b)

[It should be noted that where no hearing has been requested, the language on substantial objections and denial of the hearing request should be deleted. If a hearing is considered necessary, the appropriate notices will be prepared with the assistance of Office of Regional Programs and the Office of the Solicitor]. Accordingly, it is determined that (name of State) standards covering (list issues) should be approved as [the completion of a developmental step; meeting the requirements for a Federal program change etc.].

This decision is effective (leave blank). Signed at (name of State) this (day) day of (month, year).

___________________________