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• Record Type: Approval of State Plan Supplements
• Section: 0
• Title: Approval of State Plan Supplements

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

Approval of State Plan Supplements

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

ACTION: Final rule; Approval of State plan supplements.

SUMMARY: Section 18 of the Occupational Safety and Health Act of 1970 (the Act) requires States operating approved State occupational safety health programs to remain at least as effective as the Federal Occupational Safety and Health Administration's (OSHA) program. The Omnibus Budget Reconciliation Act of 1990, which was enacted on November 5, 1990, amended section 17 of the Act to provide for increased penalty levels for violations of the Act. (The revised penalty levels were implemented on March 1, 1991). As a result of this amendment to the Act. 29 CFR 1953.23 requires State plan States to effect the necessary statutory changes to their own occupational safety and health legislation to adopt new State penalty authority equivalent to the Federal seven-fold penalty increase. This document approves the adoption by 23 State plans of their own statutory authority equivalent to Federal OSHA's seven-fold penalty increase.

EFFECTIVE DATE: March 29, 1994.

FOR FURTHER INFORMATION CONTACT:

James Foster, Director, Office of Information and Consumer Affairs, Occupational Safety and Health Administration, U.S. Department of Labor, room N-3637, 200 Constitution Avenue, NW., Washington, DC 20210, (202) 219-8184.

SUPPLEMENTARY INFORMATION:

A. Background

Part 1953 of this chapter provides procedures for the review and approval of State change supplements by the Assistant Secretary of Labor for Occupational Safety and Health (hereinafter referred to as the Assistant Secretary).

An amendment to section 17 of the Occupational Safety and Health Act providing for increased penalty levels for violations of the Act, was signed into law on November 5, 1990. Omnibus Budget Reconciliation Act of 1990, Public Law 101-552 section 3101 (1190). (The revised levels were implemented Federally on March 1, 1991.) As a result of this amendment to the Act, 29 CFR 1953.23 and OSHA Instruction STP 2-1.163, dated May 13, 1991, Revised Federal Penalty Levels, State plan States were required to effect the necessary statutory changes to their occupational safety and health legislation to reflect the new Federal penalty maximums of $7,000 for serious, other-than-serious, failure to abate, and posting violations, and $70,000 for willful and repeat violations; as well as the $5,000 floor for willful violations.

Twenty-three State plan States have revised their legislation to substantially reflect OSHA's new penalty system. Oregon's revised legislation includes all provisions, except, through a legislative drafting error, revision of the penalty for posting violations. Legislation to correct this omission will be introduced during the State's 1995 legislative session.

Therefore, this approval action does not extend to Oregon's posting violation penalty authority. The twenty-three States are:

___________________________________________________________________________
             |     Statutory       |   Effective    |  Implementation
  State      |     Citation        |     Date       |       Date
             |        No.          |                |
_____________|_____________________|________________|______________________
Alaska.......| Section 18.60.095   |    09/20/92    |   09/20/92
Arizona......| Labor Code Sec.     |                |
             |  R-13-602           |    09/28/92    |   09/29/92
California...| Title 8, LC Sec.    |                |
             |  6317-6434          |    10/05/91    |   06/01/92
Hawaii.......| HRS 396-10          |    06/01/92    |   06/01/92
Indiana......| INOSH Act           |                |
             |  25.IC22-8-1.1-27.1 |    10/01/91    |   10/01/91
Iowa.........| IOSH Act CH88.14    |    04/17/92    |   04/17/92
Kentucky.....| Labor Laws 338.991  |    07/15/92    |   07/15/92
Maryland.....| MDOSH Law 5-810     |    01/01/92    |   01/22/92
Michigan.....| MIOSH Act 408.035   |    04/01/92    |   04/01/92
Minnesota....| MNOSH 182.666       |    08/01/91    |   10/01/91
Nevada.......| NRS 618.635-618.675 |    07/05/91    |   07/05/91
New Mexico...| NMOHS Act           |                |
             |  Sec. 50-9-24       |    07/01/92    |   07/01/92
N. Carolina..| Gen. Stat. 95-138   |    01/01/92    |   01/01/92
Oregon.......| ORS Sec. 654.086    |    09/29/91    |   10/01/92
Puerto Rico..| PROSH Act No. 1609  |                |
             |  Sec. 25            |    08/25/91    |   09/01/91
S. Carolina..| Code of Laws        |                |
             |  41-15-320          |    04/24/91    |   10/01/91
Tennessee....| Codes Annotated     |                |
             |  50-3-402           |    07/01/91    |   07/01/91
Utah.........| CH9, UOSH Act       |                |
             |  35-9-21            |    04/29/91    |   04/29/91
Vermont......| VTOSH Act,          |                |
             | Title 21, CH 3,     |                |
             |  Sec. 210           |    05/03/91    |   07/01/91
Virgin Is....| VIAct, No. 5819     |                |
             | Title 24, Sec. 44   |    10/20/92    |   10/20/92
Virginia.....| VA Code 5-810       |    07/01/92    |   07/01/92
Washington...| RCW Sec. 49.17.180  |    07/28/91    |   03/16/92
Wyoming......| WYOSH Act 27-11-107 |    03/19/92    |   03/19/92
_____________|_____________________|________________|_________________

Under current law, State plan States may, but are not required to, have comparable monetary penalty provisions for their public (State and local government) sector programs. Two public employee only plan States (New York and Connecticut) have chosen not to incorporate the new higher penalty system into their occupational safety and health programs. Connecticut will continue to assess penalties for public sector violations at the lower levels. New York assesses penalties for failure to abate violations only and will continue to do so.

B. Issues for Determination

Having reviewed the States' plan change supplements in comparison to the Federal change, it has been determined that the States' supplemental changes to their respective statutes are identical to the comparable Federal legislative amendments and, accordingly, should be approved.

C. Public Participation

Under 29 CFR 1953.2(c) of this chapter, the Assistant Secretary may prescribe alternative procedures to expedite the review process or for other good cause which may be consistent with applicable laws for the following reasons:

1. The States' legislative changes are substantially equivalent to Federal statutory changes which were enacted by Congress on November 5, 1990.

2. The States' plan changes were adopted in accordance with the procedural requirements of State law and, therefore, no further public comment is required.

Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667): 29 CFR part 1902, Secretary of Labor's Order No. 1-90 (55 FR 9033).

Signed the 15th day of March, 1994, in Washington, DC.

Joseph A. Dear,

Assistant Secretary.

[59 FR 14554, March 29, 1994]

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