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• Publication Date: 10/12/2011
• Publication Type: Final Rules
• Fed Register #: 76: 63190-63191
• Standard Number: 1952
• Title: Michigan State Plan; Change in Level of Federal Enforcement: Indian Tribes

[Federal Register Volume 76, Number 197 (Wednesday, October 12, 2011)]
[Rules and Regulations]
[Pages 63190-63191]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-26262]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952


Michigan State Plan; Change in Level of Federal Enforcement:
Indian Tribes

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

ACTION: Final rule.

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SUMMARY: This document gives notice of OSHA's approval of a change to
the state of Michigan's occupational safety and health state plan to
exclude coverage of establishments on Indian reservations which are
owned or operated by employers who are enrolled members of Indian
tribes. Under the terms of a September 28, 2004 addendum to the
September 24, 1973 Operational Status Agreement between OSHA and the
Michigan Occupational Safety and Health Administration (MIOSHA),
jurisdiction and enforcement have been relinquished back to federal
OSHA for conducting safety and health inspections and interventions
within the borders of all Indian reservations for employers who are
"enrolled members of Indian reservations", i.e., members of Indian
tribes. Non-member employers within the reservations and member
employers located outside the territorial borders of Indian
reservations remain under MIOSHA jurisdiction. Accordingly, OSHA amends
its regulations to reflect this change in the level of federal
enforcement.

DATES: Effective Date: October 12, 2011.

FOR FURTHER INFORMATION CONTACT: Press inquiries: Frank Meilinger,
Office of Communications, OSHA, U.S. Department of Labor, Room N-3647,
200 Constitution Avenue, NW., Washington, DC 20210; telephone: (202)
693-1999. General Information and Technical Inquiries: Laura Seeman,
Acting Director, Office of State Programs, Directorate of Cooperative
and State Programs, Room N-3700, OSHA, U.S. Department of Labor, 200
Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
2244. An electronic copy of this Federal Register notice is available
on OSHA's Web site at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 18 of the Occupational Safety and Health Act of 1970 (the
Act), 29 U.S.C. 667, provides that states which wish to assume
responsibility for developing and enforcing their own occupational
safety and health standards may do so by submitting, and obtaining
federal approval of, a state plan. Part 1954 of title 29, Code of
Federal Regulations, sets out procedures under section 18 of the Act
for the evaluation and monitoring of state plans which have been
approved under section 18(c) of the Act and 29 CFR part 1902. After
initial approval, but prior to final approval, section 18(e) of the Act
provides for a period of concurrent jurisdiction.
    The Michigan Occupational Safety and Health State Plan was
initially approved on September 24, 1973 (38 FR 27388, Oct. 3, 1973).
The Michigan program is administered by the Michigan Occupational
Safety and Health Administration (MIOSHA) in the Department of
Licensing and Regulatory Affairs, previously the Department of Labor
and Economic Growth. Prior to 2003, the state plan agency was called
the Bureau of Safety and Regulation, Department of Consumer and
Industry Services.
    If federal monitoring shows that a state program has developed to a
degree sufficient to justify suspension of duplicative concurrent
federal enforcement activity, U.S. Department of Labor regulations
provide that OSHA, through its Regional Administrator, may enter into a
procedural agreement (and addenda to such agreements) with the state,
usually referred to as an "operational status agreement", setting
forth areas of federal and state enforcement responsibility (29 CFR
1954.3(f)).
    On January 6, 1977, an Operational Status Agreement was entered
into between OSHA and the Michigan State Plan agency whereby concurrent
federal enforcement authority was suspended with regard to most federal
occupational safety and health standards in issues covered by the
state's OSHA-approved occupational safety and health plan. Federal OSHA
retained its authority over safety and health in private sector
maritime employment and with regard to federal government employers and
employees, and employees of the U.S. Postal Service (effective June 9,
2000).
    On July 18, 2001, Ms. Kathleen M. Wilbur, Director of the Michigan
Department of Consumer and Industry Services (now the Michigan
Department of Licensing and Regulatory Affairs), first wrote to the
OSHA Regional Administrator about the issue of jurisdiction of the
Michigan Bureau of Safety and Regulation (now the Michigan Occupational
Safety and Health Administration) on Indian reservations. MIOSHA and
the Michigan Attorney General's Office had reached
the legal conclusion that MIOSHA, as a state operating under authority
of state law, pursuant to a federally approved state plan, did not have
authority to inspect and apply MIOSHA statutory and regulatory
requirements to Indian-owned and Indian-operated businesses within the
territorial borders of Indian reservations. The state reached the
conclusion at that time that, with respect to non-Indian owned
businesses operating on Indian reservations, the provisions of MIOSHA
would apply.
    Subsequently, on September 28, 2004, an addendum to the state's
Operational Status Agreement between federal OSHA and MIOSHA was
signed. This addendum stated that MIOSHA relinquished to federal OSHA
the jurisdiction and enforcement authority for conducting safety and
health inspections and interventions within the borders of all Indian
reservations for employers who are enrolled members of Indian tribes.
The addendum also provided that non-member employers within Indian
reservations and member employers located outside the territorial
borders of Indian reservations remain under MIOSHA jurisdiction.
Accordingly, notice is hereby given of this change in federal
enforcement authority with regard to employers on Indian land in the
state of Michigan. OSHA is also amending its description of the
approved state plan at 29 CFR part 1952, Subpart T to reflect this
change in the level of federal enforcement.

B. Obtaining Copies of Referenced Documents

    A copy of the documents referenced in this notice may be obtained
from: Office of State Programs, Directorate of Cooperative and State
Programs, Occupational Safety and Health Administration, Room N3700,
200 Constitution Avenue, NW., Washington, DC 20210, (202) 693-2244, fax
(202) 693-1671; Office of the Regional Administrator, Occupational
Safety and Health Administration, 230 S. Dearborn Street, 32nd Floor,
Room 3244, Chicago, Illinois 60604, (312) 353-2220, fax (312) 353-7774;
and the Michigan Occupational Safety and Health Administration, P.O.
Box 30643, 7150 Harris Drive, Lansing, Michigan 48909, (517) 322-1817,
fax (517) 322-1775. Other information about the Michigan State Plan is
posted on the state's Web site at http://www.michigan.gov/miosha.
Electronic copies of this Federal Register notice are available on
OSHA's Web site at http://www.osha.gov/.

C. Administrative Procedure

    This Federal Register document acknowledges a modification made by
the state of Michigan to its occupational safety and health state plan,
and does not involve any regulatory action by federal OSHA. States with
approved plans have authority to modify the statutes, regulations, and
procedures in their plan, using procedures provided under state law.
These state plan modifications have legal effect in the state as soon
as they are adopted; pre-enforcement approval by federal OSHA is not
required. 29 CFR 1953.3(a); see Florida Citrus Packers v. California,
545 F. Supp. 216, 219 (N.D. Cal. 1982).
    The attached Federal Register notice is designated a "final
rule." That designation is necessary because OSHA publishes a general
description of every state plan in 29 CFR part 1952. Because they are
set forth in the Code of Federal Regulation, these descriptions can be
updated only by publishing a "final rule" document in the final rules
section of the Federal Register. Such rules do not contain any new
federal regulatory requirements, but merely provide public information
about changes already in effect under state law. Michigan's
determination that certain Indian-owned establishments are not subject
to coverage under the state's plan is the result of limitations already
in effect under that state's law. The present Federal Register notice
simply provides information to the public concerning this limitation.
    For this reason, public notice and comment are unnecessary, and
good cause exists for making this final rule effective upon publication
in the Federal Register. Accordingly, OSHA finds that public
participation is unnecessary, and this notice of approval is effective
upon publication in the Federal Register.

List of Subjects in 29 CFR Part 1952

    Indian tribes, Intergovernmental relations, Law enforcement,
Occupational safety and health.

    Signed at Washington, DC, on September 26, 2011.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

    Part 1952 of 29 CFR is hereby amended as follows:

PART 1952--[AMENDED]

0
1. The authority section for Part 1952 continues to read as follows:

    Authority:  Section 18 of the OSH Act (29 U.S.C. 667), 29 CFR
Part 1902, and Secretary of Labor's Order No. 5-2002 (67 FR 65008).

Subpart T--Michigan

0
2. In Sec.  1952.265 remove the third sentence and add two sentences in
its place to read as follows:


Sec.  1952.265  Level of Federal enforcement.

    * * * Federal OSHA will also retain authority for coverage of
Federal government employers and employees; and of the U.S. Postal
Service (USPS), including USPS employees, and contract employees and
contractor-operated facilities engaged in USPS mail operations; and of
employers who own or operate businesses located within the boundaries
of Indian reservations who are enrolled members of Indian tribes. (Non-
Indian employers within the reservations and Indian employers outside
the territorial boundaries of Indian reservations remain subject to
Michigan jurisdiction.). * * *

[FR Doc. 2011-26262 Filed 10-11-11; 8:45 am]
BILLING CODE 4510-26-P

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