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OSHA Instruction STP 2-2.8B JUN 20 1983 Office of State Programs

SUBJECT: Fire Protection; Means of Egress; Hazardous Materials

A. Purpose. This instruction informs the Regions and State designees that OSHA has promulgated a new standard and establishes requirements for extension of coverage to State and local government employees.

B. Scope. This instruction applies OSHA-wide.

C. Cancellation. OSHA Instruction STP 2-2.8A, January 19, 1981, is canceled.

D. Action. Each Regional Administrator shall ensure that E. of this instruction is followed and implemented.

E. Federal Program Change. This instruction describes a Federal program change which affects State programs. Each Regional Administrator shall:

1. Ensure that this change is forwarded to each State designee.

2. Explain the technical content of the standard to the State designee as requested.

3. Inform the State that adoption of the standard, or of a standard which is at least as effective, is required within 6 months of the date of publication of the Federal standard in the Federal Register.

4. Ensure that the State submits a plan supplement to the Regional Administrator for approval.

5. Inform each State designee that:

a. Notwithstanding the exemption of State and local governments from coverage of the Federal standard, the State must either promulgate a standard which applies to both the public (State and local government) and private sectors, or promulgate two separate standards.

b. With respect to the private sector, the State:

OSHA Instruction STP 2-2.8B JUN 20 1983 Office of State Programs

(1) Must establish an effective date for its standard which is not more than 6 months from the date of publication of the Federal standard, and

(2) May delay the effective date for provisions of its standard when the comparable Federal provisions have a delayed effective date, with the proviso that the delayed effective date of a State provision may be no later than the effective date of the comparable Federal provisions.

c. With respect to the public sector (State and local government):

(1) The State may establish effective dates which are later than the Federal effective dates when the unique circumstances of the public sector justify it. Justification of any later dates must be provided in the standards comparison submitted by the State.

(2) Each State is required to determine whether "volunteer" firefighters are deemed employees of the State or local governments for the purpose of coverage under the standard. State designees who are uncertain about coverage under the standard should request an opinion from the State's Attorney General. If the Attorney General's opinion is required to determine coverage, the State shall submit a copy of the opinion to the Regional Administrator along with the standards package.

(3) States may promulgate a separate standard covering public sector employees which differs from the State standard for the private sector.

OSHA Instruction STP 2-2.8B JUN 20 1983 Office of State Programs

F. Background.

1. Final Rules and Regulations for Fire Protection; Means of Egress; Hazardous Materials, were published in the Federal Register, Vol. 45, No. 179, on September 12, 1980.

2. Under 29 CFR 1953.23(a)(1), States are provided up to 6 months for adoption of this change, but until State adoption is effected, Federal OSHA will assume enforcement responsibility in all States.

3. The scope of the Federal standard exempts employees of the State and local governments because OSHA's authority under the Act does not apply to those governments. However, 29 CFR 1952.11(a) (2) requires that a State provide a program of protection for State and local government employees which is as effective as the standards contained in the approved plan applicable to private employers. Therefore, when a State adopts a standard comparable to the subject Federal standard, it must ensure either that employees of State and local governments are included within the scope of the standard, or that these employees are covered in a separate standard.

4. Although the Federal Fire Protection standard does not apply to volunteer fire departments, the applicability of the Fire Protection standard to volunteer fire departments in State Plan States depends upon whether volunteer firefighters are deemed employees of State and local governments under applicable State law. The question of coverage under State law can appropriately be addressed by the State's Attorney General. State designees who are uncertain about coverage under the standard should request such an opinion.

5. There are situations where volunteer firefighters receive pay for their time spent on-the-job, receive other types of remuneration, and/or are covered under workers' compensation provisions. Such factors as these may impact on whether a volunteer is an employee. If volunteer firefighters are deemed public employees under State law, then

OSHA Instruction STP 2-2.8B JUN 20 1983 Office of State Programs

coverage of volunteer fire departments under the State's public sector would be required. If volunteer firefighters are not considered public employees under State law, then coverage would not be expected.

6. A memorandum was sent to the State designees requesting their comments on this OSHA Instruction concerning the coverage of volunteer firefighters. Generally, the comments expressed concern for the States to have the flexibility to develop a standard for the public sector that is different from the OSHA fire protection standard. This instruction will clarify that States may promulgate a separate standard covering public sector employees (including the volunteer firefighters, if they are deemed public employees under State law) which is different from the State fire protection standard for the private sector.

7. In the private sector, establishment of delayed effective dates in a State's standard which are later than Federal dates would delay further the time by which the State can assume responsibility for enforcement of each of the various provisions of the standard, and would make it impossible for the State to provide protection under its standard for its employees which is as effective as protection under the Federal standard. However, in State and local governments, in which the Federal Government lacks jurisdiction, unique conditions (such as the greater expense for protective clothing occasioned by the larger number of firefighters in many local governments) may justify later effective dates.

Thorne G. Auchter Assistant Secretary

DISTRIBUTION: National, Regional, and Area Offices State Designees NIOSH Regional Program Directors

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