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Regulations (Preambles to Final Rules) - Table of Contents
• Record Type: Abatement Verification
• Section: 9
• Title: Section 9 - IX. Federalism

IX. Federalism

The final regulation has been reviewed in accordance with Executive Order 12612 (52 FR 41685), regarding Federalism. This Order requires that agencies, to the extent possible, refrain from limiting state policy options, consult with States prior to taking any actions that would restrict state policy options, and take such actions only if clear constitutional authority exists and the problem is of national scope. The Order provides for preemption of State law only if a clear Congressional intent has been expressed for the Agency to do so. Any such preemption is to be limited to the extent possible.

With respect to states that do not have OSHA-approved occupational safety and health State plans, the final regulation conforms to the preemption provisions of Section 18 of the OSH Act (29 U.S.C. 667); this section preempts State promulgation and enforcement of requirements dealing with occupational safety and health issues covered by Federal OSHA standards unless the state has an OSHA-approved Sate plan. (See Gade v. National Solid Wastes Management Association, 112 S.Ct. 2374 (1992).) Since states without State plans are prohibited already from issuing citations for violations of requirements covered by Federal OSHA standards, this final regulation does not expand this limitation.

The Agency certifies that this final regulation has been assessed in accordance with the principles, criteria, and requirements set forth under Sections 2 through 5 of Executive Order 12612. Section 18(c)(2) of the OSH Act (29 U.S.C. 667(c)((2)) provides that an OSHA-approved State plan must provide for the development and enforcement of safety and health standards that are, or will be, at least as effective as the Federal program. In implementing this requirement, 29 CFR 1902.3(d)(1) requires a State plan to establish a program for the enforcement of state standards that is, or will be, at least as effective as the standard provided under the OSH Act, and provide assurances that the State plan enforcement program will continue to be at least as effective as the Federal program. Furthermore, 29 CFR 1902.4(a) requires state plans to establish the same procedures and rules that are established by Federal OSHA, or alternative procedures and rules as effective as the Federal procedures and rules. In particular, a State plan must provide that employees be informed of their protections and obligations under the Act. (See 29 CFR 1902.4(c)(2)(iv).) The plan also must provide for prompt notice to employers and employees when an alleged violation of standards has occurred, including the proposed abatement requirements, by such means as the issuance and posting of citations. (See 29 CFR 1902.4(c)(2)(x).) Since this final regulation will improve Federal OSHA's enforcement of the OSH Act and, in particular, will foster the abatement of violations and communication to employees about their protections under the Act, State plans will be required to adopt an identical regulation, or an equivalent regulation that is at least as effective as the Federal regulation, within six months of Federal promulgation. Thus, the final regulation complies with Executive Order 12612 with respect to State Plan States because (1) the final regulation deals with a problem of national scope, and (2) the OSH Act requires that State Plan States adopt the OSHA regulation or an equally-effective regulation. Since a number of State Plan States already have abatement-verification and employee-notification procedures similar to the requirements specified under this regulation, they will only need to reissue the requirement as an enforceable regulation.

State comments were invited on prepublication drafts of both the proposed and final regulation, and these comments were fully considered before a final regulation was promulgated. Two State Plan States, Michigan and Minnesota, commented (Exs. 4-86 and 4-87, respectively) on the draft proposed regulation. Michigan and Minnesota again submitted comments on the draft final regulation, along with Maryland (Exs. 4-89, 4-90, and 4-91, respectively). These states expressed concern about the tagging and posting requirements, the paperwork burden these requirements impose on employers, and the use of additional state resources to implement the regulation. Minnesota also wanted a number of items clarified in the compliance guidance that OSHA will issue with this regulation (e.g., the application of the tagging and reporting requirements in contested cases). The final regulation has addressed the States' concerns regarding the tagging and posting requirements, and lessened the paperwork burden for both employers and the enforcement agencies (i.e., OSHA and State Plan States). This reduced paperwork burden, the compliance guidance that will accompany this final regulation, and the economic benefits that will accrue to enforcement agencies under the final regulation (see "Economic Analysis" above) will reduce the burden to, and enhance the economic resources of, the Federal and State agencies responsible for enforcing the final regulation.

OSHA also sought information from the State Plan States that require abatement documents on their experience with employers providing false information on the documents. On average, these states reported a false-information rate of five per cent or less.

[62 FR 15324, March 31, 1997]

Regulations (Preambles to Final Rules) - Table of Contents

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