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Regulations (Preambles to Final Rules) - Table of Contents
• Record Type: Permit-Required Confined Spaces
• Section: 7
• Title: Section 7 - VII. Federalism

VII. Federalism

This regulation has been reviewed in accordance with Executive Order 12612 regarding Federalism. This order requires that agencies, to the extent possible, refrain from limiting state policy options and consult with states prior to taking any action. Agencies may act only when there is clear constitutional authority and the presence of a problem of national scope. The order provides for preemption of state law only if there is a clear congressional intent for the Agency to do so. Any such preemption is to be limited to the extent possible.

Section 18 of the Occupational Safety and Health Act of 1970 expresses Congress' clear intent to preempt state laws relating to issues on which Federal OSHA has promulgated occupational safety and health standards. Under the OSH Act, a state can avoid preemption only if it submits, and obtains Federal approval of, a plan for the development of such standards and their enforcement. Occupational safety and health standards developed by such Plan-States must, among other things, be at least as effective in providing safe and healthful employment and places of employment as Federal Standards. Where such standards are applicable to products distributed or used in interstate commerce, they may not unduly burden commerce and must be justified by compelling local conditions (See Section 18(c)(2) of the OSH Act).

This regulation is drafted so that employees in every state would be protected by general, performance-oriented standards. To the extent that there are state or regional peculiarities caused by the terrain, the climate or other factors, states would be able, under the OSH Act, to develop their own state standards to deal with any special problems. And, under the Act, if a state develops an approved state program, it could make additional requirements in its standards. Moreover, the performance nature of this standard, of and by itself, allows for flexibility by states and employers to provide as much safety as possible using varying methods consonant with conditions in each state.

In short, there is a clear national problem related to occupational safety and health concerning entry into confined spaces. Those states which elect to participate under the statute would not be preempted by this regulation and would be able to address special, local conditions within the framework provided by this performance-oriented standard.

OSHA notes that California, Kentucky, Maryland, Michigan, New Jersey, and Virginia currently have regulations dealing with confined space entry. Of these six state regulations, none would be preempted. New Jersey is not a state-plan state, but their confined space standard applies only to public (state and local government) employees. An analysis of state confined space rules and procedures is contained in Section VI, Summary of the Final Regulatory Impact Analysis and Regulatory Flexibility Analysis, earlier in this preamble.

[58 FR 4462, Jan. 14, 1993; 59 FR 55208, Nov. 4, 1994]

Regulations (Preambles to Final Rules) - Table of Contents

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