50766 Federal Register / Vol. 87, No. 159 / Thursday, August 18, 2022 / Rules and Regulations 

1R.J. Reynolds Tobacco Co. et al. v. United States 

Food and Drug Administration et al., No. 6:20–cv– 

00176 (E.D. Tex. filed April 3, 2020). 

2R.J. Reynolds Tobacco Co., No. 6:20–cv–00176 

(E.D. Tex. May 8, 2020) (order granting joint motion 

and establishing schedule), Doc. No. 33. 

3R.J. Reynolds Tobacco Co., No. 6:20–cv–00176 

(E.D. Tex. December 2, 2020) (order granting 

Plaintiffs’ motion and postponing effective date), 

Doc. No. 80. 

4R.J. Reynolds Tobacco Co., No. 6:20–cv–00176 

(E.D. Tex. March 2, 2021) (order granting Plaintiffs’ 

motion and postponing effective date), Doc. No. 89. 

5R.J. Reynolds Tobacco Co., No. 6:20–cv–00176 

(E.D. Tex. May 21, 2021) (order granting Plaintiffs’ 

motion and postponing effective date), Doc. No. 91. 

6R.J. Reynolds Tobacco Co., No. 6:20–cv–00176 

(E.D. Tex. August 18, 2021) (order postponing 

effective date), Doc. No. 92. 

7R.J. Reynolds Tobacco Co., No. 6:20–cv–00176 

(E.D. Tex. November 12, 2021) (order postponing 

effective date), Doc. No. 93. 

8R.J. Reynolds Tobacco Co., No. 6:20–cv–00176 

(E.D. Tex. February 10, 2022) (order postponing 

effective date), Doc. No. 94. 

9R.J. Reynolds Tobacco Co., No. 6:20–cv–00176 

(E.D. Tex. May 10, 2022) (order postponing effective 

date), Doc. No. 96. 

10R.J. Reynolds Tobacco Co., No. 6:20–cv–00176 

(E.D. Tex. August 10, 2022) (order granting 

Plaintiffs’ motion and postponing effective date), 

Doc. No. 100. 

FOR FURTHER INFORMATION CONTACT: 

Courtney Smith, Office of Regulations, 

Center for Tobacco Products, Food and 

Drug Administration, Document Control 

Center, 10903 New Hampshire Ave., 

Bldg. 71, Rm. G335, Silver Spring, MD 

20993–0002, 1–877–287–1371, email: 

CTPRegulations@fda.hhs.gov. 

SUPPLEMENTARY INFORMATION: In the 

Federal Register of March 18, 2020, the 

Food and Drug Administration (FDA or 

Agency) issued a final rule establishing 

new cigarette health warnings for 

cigarette packages and advertisements. 

The final rule implements a provision of 

the Family Smoking Prevention and 

Tobacco Control Act (Tobacco Control 

Act) (Pub. L. 111–31) that requires FDA 

to issue regulations requiring color 

graphics depicting the negative health 

consequences of smoking to accompany 

new textual warning label statements. 

The Tobacco Control Act amends the 

Federal Cigarette Labeling and 

Advertising Act of 1965 (Pub. L. 89–92) 

to require each cigarette package and 

advertisement to bear one of the new 

required warnings. The final rule 

specifies the 11 new textual warning 

label statements and accompanying 

color graphics. Pursuant to section 

201(b) of the Tobacco Control Act, the 

rule was published with an effective 

date of June 18, 2021, 15 months after 

the date of publication of the final rule. 

On April 3, 2020, the final rule was 

challenged in the U.S. District Court for 

the Eastern District of Texas.1 On May 

8, 2020, the court granted a joint motion 

to govern proceedings in that case and 

postpone the effective date of the final 

rule by 120 days.2 On December 2, 2020, 

the court granted a new motion by the 

plaintiffs to postpone the effective date 

of the final rule by an additional 90 

days.3 On March 2, 2021, the court 

granted another motion by the plaintiffs 

to postpone the effective date of the 

final rule by an additional 90 days.4 On 

May 21, 2021, the court granted another 

motion by the plaintiffs to postpone the 

effective date of the final rule by an 

additional 90 days.5 On August 18, 

2021, the court issued an order to 

postpone the effective date of the final 

rule by an additional 90 days.6 On 

November 12, 2021, the court issued 

another order to postpone the effective 

date of the final rule by an additional 90 

days.7 On February 10, 2022, the court 

issued another order to postpone the 

effective date of the final rule by an 

additional 90 days.8 On May 10, 2022, 

the court issued another order to 

postpone the effective date of the final 

rule by an additional 90 days.9 On 

August 10, 2022, the court granted a 

motion by the plaintiffs to postpone the 

effective date of the final rule by an 

additional 90 days.10 The court ordered 

that the new effective date of the final 

rule is October 6, 2023. Pursuant to the 

court order, any obligation to comply 

with a deadline tied to the effective date 

is similarly postponed, and those 

obligations and deadlines are now tied 

to the postponed effective date. 

To the extent that 5 U.S.C. 553 applies 

to this action, the Agency’s 

implementation of this action without 

opportunity for public comment, 

effective immediately upon publication 

today in the Federal Register, is based 

on the good cause exception in 5 U.S.C. 

553(b)(B). Seeking public comment is 

impracticable, unnecessary, and 

contrary to the public interest. The 90- 

day postponement of the effective date, 

until October 6, 2023, is required by 

court order in accordance with the 

court’s authority to postpone a rule’s 

effective date pending judicial review (5 

U.S.C. 705). Seeking prior public 

comment on this postponement would 

have been impracticable, as well as 

contrary to the public interest in the 

orderly issuance and implementation of 

regulations. 

Dated: August 12, 2022. 

Lauren K. Roth, 

Associate Commissioner for Policy. 

[FR Doc. 2022–17761 Filed 8–17–22; 8:45 am] 

BILLING CODE 4164–01–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1956 

[Docket No. OSHA–0022–0008] 

RIN 1218–AD41 

Massachusetts State Plan for State and 

Local Government Employers; Initial 

Approval Determination 

AGENCY: Occupational Safety and Health 

Administration (OSHA), Labor. 

ACTION: Final rule. 

SUMMARY: The Massachusetts State and 

Local Government Only State Plan, a 

State occupational safety and health, 

applicable only to Massachusetts State 

and local Government employees 

(workers of the State and its political 

subdivisions), is approved as a 

developmental plan under the 

Occupational Safety and Health Act of 

1970 and OSHA regulations. OSHA’s 

decision to grant the Massachusetts 

State Plan initial approval is based on 

its determination that the Massachusetts 

State Plan meets, or will meet within 

three years, OSHA’s State Plan approval 

criteria, and that Massachusetts has 

provided adequate assurances that it 

will be at least as effective as Federal 

OSHA in protecting the safety and 

health of Massachusetts State and local 

Government workers. The 

Massachusetts State Plan is eligible to 

receive funding from the Department of 

Labor’s Fiscal Year 2022 budget. 

DATES: This final rule is effective August 

18, 2022. 

FOR FURTHER INFORMATION CONTACT: For 

press inquiries: Contact Francis 

Meilinger, Director, Office of 

Communications, U.S. Department of 

Labor; telephone (202) 693–1999; email 

meilinger.francis2@dol.gov. 

For general and technical 

information: Contact Douglas J. 

Kalinowski, Director, OSHA Directorate 

of Cooperative and State Programs, U.S. 

Department of Labor; telephone (202) 

693–2200; email: kalinowski.doug@

dol.gov. 

Copies of this Federal Register 

document and news releases: Copies of 

this Federal Register document and 

other documents referenced herein are 

available at www.regulations.gov, the 

Federal eRulemaking Portal, in Docket 

No. OSHA–2022–0008. Electronic 

copies of this document, as well as news 

releases and other relevant information, 

are also available at OSHA’s web page 

at: www.osha.gov. 


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Federal Register / Vol. 87, No. 159 / Thursday, August 18, 2022 / Rules and Regulations 50767 

1The Appendices referenced in the 

Massachusetts State Plan narrative are also 

included in the Docket as supporting and related 

materials. 

Documents submitted to the docket by 

OSHA or stakeholders are assigned 

document identification numbers 

(Document ID) for easy identification 

and retrieval. The full Document ID is 

the docket number plus a unique fourdigit code. For example, the full 

Document ID number for the 

Massachusetts State Plan narrative, 

which describes the Massachusetts State 

Plan, is Document ID OSHA–2022– 

0008–0048.1 OSHA will identify this 

comment, and other comments in the 

rulemaking, by the term ‘‘Document ID’’ 

followed by the comment’s unique fourdigit code (e.g., as to the Massachusetts 

State Plan narrative, Document ID 

0048). 

SUPPLEMENTARY INFORMATION: 

I. Background 

Section 18 of the OSH Act, 29 U.S.C. 

667, provides that a State which desires 

to assume responsibility for the 

development and enforcement of 

standards relating to any occupational 

safety and health issue with respect to 

a Federal standard which has been 

promulgated may submit a State Plan to 

the Assistant Secretary of Labor for 

Occupational Safety and Health 

(Assistant Secretary) documenting the 

proposed program in detail. State and 

local Government employers are 

excluded from Federal OSHA coverage 

under the Act (29 U.S.C. 652(5)). 

However, a State may submit a State 

Plan for the development and 

enforcement of occupational safety and 

health standards applicable only to 

employers and employees of the State 

and its political subdivisions (i.e., State 

and local Government employers and 

employees) (29 CFR 1956.1). The 

Assistant Secretary will approve a State 

Plan applicable only to State and local 

Government employers and employees 

(State and local Government State Plan) 

if the Plan provides for the development 

and enforcement of standards relating to 

hazards in employment covered by the 

Plan which are or will be at least as 

effective in providing safe and healthful 

employment and places of employment 

as standards promulgated and enforced 

under Section 6 of the OSH Act, giving 

due consideration to differences 

between State and local Government 

and private sector employment (29 

U.S.C. 667(c); 29 CFR 1956.2(a)). In 

making this determination, the Assistant 

Secretary will measure the State Plan 

against the criteria and indices of 

effectiveness set forth in 29 CFR part 

1956.10 and 1956.11 (29 CFR 1956.2(a)). 

A State and local Government State Plan 

may receive initial approval although it 

does not yet fully meet this criteria, if 

it includes satisfactory assurances by 

the State that it will take the necessary 

steps to bring the program into 

conformity with these criteria within 

the 3-year period immediately following 

the commencement of the State Plan’s 

operation (29 CFR 1956.2(b)(1)). In such 

case, the developmental State Plan must 

include the specific actions (referred to 

as developmental steps) that the State 

Plan must take and a schedule for their 

accomplishment, not to exceed 3 years. 

Once a State and local Government 

State Plan has completed the 

developmental steps, Federal OSHA 

will publish a notification in the 

Federal Register certifying the State 

Plan’s completion of all developmental 

steps (29 CFR 1956.23; 1902.33 and 

1902.34). 

Section 23(g) of the OSH Act provides 

for funding of up to 50% of the State 

Plan costs (29 U.S.C. 672(g)). Congress 

designates specific funds for this 

purpose (see, e.g., FY 2022 Consolidated 

Appropriations Act, H.R. 2471, p. 383 

(March 17, 2022)). 

II. Massachusetts State Plan History 

and Events Leading to Initial Approval 

The Massachusetts Department of 

Labor Standards (DLS) has a history that 

traces back to 1912. Although the 

agency’s name has changed slightly over 

time, the mission of the DLS has always 

included promoting and protecting 

workers’ health, safety, and working 

conditions. In 2014, by statute, 

Massachusetts authorized the DLS to 

provide State workers with at least the 

level of protection from workplace 

safety and health hazards as protections 

provided under the OSH Act by Federal 

OSHA (M.G.L. c. 149, § 61⁄2). The DLS’s 

authority to provide such protection 

was expanded to cover all State and 

local Government workers, including 

any political subdivision of the 

Commonwealth, which includes 

municipal and county workers, by 

amendment to the authorizing statute in 

2018. Since 2019, the DLS, through its 

Workplace Safety and Health Program 

(WSHP), has performed inspections of 

State and local Government employers 

to ensure compliance with these 

requirements. The DLS began working 

with OSHA to obtain approval for a 

State Plan for occupational safety and 

Health, applicable only to State and 

local Government employment, and 

submitted a draft Plan to OSHA in 

December 2020, with final revisions to 

the Plan in June 2022. 

In Fiscal Year 2022, Congress 

increased the funds available for State 

Plans. The Fiscal Year 2022 Omnibus 

Appropriations Act includes $1,250,000 

in State Plan grant funds for the 

Massachusetts State Plan. 

On June 30, 2022, OSHA published a 

notice in the Federal Register proposing 

to grant the Massachusetts State Plan 

initial approval as a State and local 

Government State Plan under section 18 

of the OSH Act (29 U.S.C. 667) (87 FR 

39033). In the proposal, OSHA 

indicated that it had preliminarily 

found the Massachusetts State Plan to 

be conceptually approvable as a 

developmental State Plan. The proposal 

also included a request for interested 

persons to submit public comment and 

to request an informal hearing 

concerning the proposed initial State 

Plan approval. OSHA received seven 

comments in response, and, as 

discussed below, all seven comments 

strongly supported OSHA’s proposal. 

OSHA did not receive any requests for 

an informal hearing. 

III. Summary of Comments Received 

OSHA received seven comments from 

interested persons in response to its 

June 30, 2022, proposal and request for 

public comment. As previously noted, 

all seven comments may be viewed in 

the rulemaking docket at 

www.regulations.gov, under Docket No. 

OSHA–2022–0008. 

All seven comments strongly support 

OSHA’s initial approval of the 

Massachusetts State Plan. The 

Occupational Safety and Health State 

Plan Association (OSHSPA), which ‘‘is 

an organization of twenty-eight (28) 

State Plans and U.S. Territories that 

have OSHA-approved State Plans,’’ 

submitted a comment expressing strong 

support for OSHA’s proposal to grant 

initial approval to the Massachusetts 

State Plan in order to ‘‘ensure 

approximately 434,000 public sector 

workers in Massachusetts are afforded 

occupational safety and health 

protections that OSHA cannot provide’’ 

(Document ID 0052). Another 

commenter, on behalf of United Support 

and Memorial for Workplace Fatalities, 

also expressed strong support 

(Document ID 0055). 

The other five comments received 

were nearly identical to one another. 

These comments were received from the 

Massachusetts Coalition for 

Occupational Safety and Health 

(MassCOSH) (Document ID 0049), Dr. 

Leslie I. Boden, professor of Public 

Health at Boston University (Document 

ID 0050), SEIU Local 888 (Document ID 

0051); Massachusetts AFL–CIO 

(Document ID 0054), and Teamsters 


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Local Union No. 25 (Document ID 

0056). All five of these comments 

‘‘emphatically support’’ OSHA’s 

proposal to grant initial approval. They 

also raised identical specific concerns 

about terms of the proposed 

Massachusetts State Plan, regarding 

Massachusetts’ regulations applicable to 

the Massachusetts State Plan that 

address advance notice of inspections, 

anti-retaliation, and Massachusetts’ 

adoption of new OSHA standards and 

Emergency Temporary Standards. These 

five commenters’ specific concerns are 

addressed below, in conjunction with 

OSHA’s findings regarding the 

Massachusetts State Plan’s compliance 

with the criteria and indices of 

effectiveness for State and local 

Government State Plans set forth in 

OSHA’s regulations. 

IV. Findings 

As previously discussed, in order to 

grant initial approval to a State Plan for 

State and local Government, OSHA 

must determine whether the State Plan 

provides for the development and 

enforcement of standards relating to 

hazards in employment covered by the 

Plan which are or will be at least as 

effective in providing safe and healthful 

employment and places of employment 

as standards promulgated and enforced 

under Section 6 of the OSH Act, giving 

due consideration to differences 

between State and local Government 

and private sector employment (29 

U.S.C. 667(c); 29 CFR 1956.2(a)). To 

make this determination, the Assistant 

Secretary measures the State Plan 

against the criteria in 29 CFR 1956.10 

and the indices of effectiveness in 29 

CFR 1956.11 (29 CFR 1956.2(a)). 

OSHA has evaluated the 

Massachusetts State Plan against the 

criteria and indices of effectiveness in 

OSHA’s regulations and finds that the 

Massachusetts State Plan meets these 

criteria, or will meet these criteria 

within the three-year period 

immediately following the 

commencement of the State Plan’s 

operation, as permitted by 29 CFR 

1956.2(b)(1). OSHA’s specific findings 

and conclusions with regard to these 

criteria and indices of effectiveness are 

discussed below. 

OSHA’s findings are based primarily 

on information about the Massachusetts 

State Plan that is included in the 

Massachusetts State Plan narrative 

(Document ID 0048), and on the 

Appendices referenced in the 

Massachusetts State Plan narrative that 

OSHA has also included in the 

rulemaking docket. And OSHA 

reviewed and carefully considered the 

seven public comments received in 

reaching its determinations regarding 

the Massachusetts State Plan. 

A. Designated Agency 

Section 18(c)(1) of the OSH Act 

provides that a State occupational safety 

and health program must designate a 

State agency or agencies responsible for 

administering the Plan throughout the 

State (29 U.S.C. 667(c)(1); see also 29 

CFR 1956.10(b)(1)). The State Plan must 

describe the authority and 

responsibilities of the designated agency 

and provide assurance that other 

responsibilities of the agency will not 

detract from its responsibilities under 

the Plan (29 CFR 1956.10(b)(2)). 

The DLS is designated as the State 

agency responsible for the development 

and enforcement of occupational safety 

and health standards applicable to State 

and local Government employment 

throughout the State. Workplace Safety 

and Health Program (WSHP) is the subagency responsible for administering the 

Massachusetts State Plan. The 

Massachusetts State Plan narrative 

describes the authority of the 

Massachusetts DLS and its other 

responsibilities (Document ID 0048, pp. 

9–10). 

B. Scope 

Section 18(c)(6) of the OSH Act 

provides that a State Plan, to the extent 

permitted by its law, must establish and 

maintain an effective and 

comprehensive occupational safety and 

health program applicable to all 

employees of the State and its political 

subdivisions (29 U.S.C. 667(c)(6)). A 

State Plan may only exclude certain 

political subdivision employees from 

coverage if the State is constitutionally 

precluded from regulating occupational 

safety and health conditions for such 

political subdivision (29 CFR 

1956.2(c)(1)). Further, the State may not 

exclude any occupational, industrial or 

hazard grouping from coverage under its 

Plan unless OSHA finds that the State 

has shown there is no necessity for such 

coverage (29 CFR 1956.2(c)(2)). 

The Massachusetts State Plan covers 

State and local Government employees 

throughout the State. M.G.L. c. 149, 

§ 61⁄2 defines ‘‘public employees’’ as 

‘‘individuals employed by a public 

employer.’’ ‘‘Public employers,’’ as 

defined by M.G.L. c. 149, § 61⁄2, include 

‘‘any agency, executive office, 

department, board, commission, bureau, 

division, or authority of the 

commonwealth or of any political 

subdivision of the commonwealth [that 

is, city, town, county], any quasi-public 

independent entity and any authority or 

body politic and corporate established 

by the general court [Legislature] to 

serve a public purpose.’’ Volunteers 

under the direction of a public employer 

or other public corporation or political 

subdivision are also covered. The 

definition of public employee does not 

include students (except when 

employed or vocational/technical 

students when performing field work), 

or those incarcerated or involuntarily/ 

voluntarily committed in public 

institutions (Document ID 0048, pp. 6– 

9). 

Consequently, OSHA finds that the 

Massachusetts State Plan contains 

satisfactory assurances that no 

employees of the State and its political 

subdivisions are excluded from 

coverage, and the Plan excludes no 

occupational, industrial, or hazard 

grouping. 

C. Standards and Federal Program 

Changes 

Section 18(c)(2) of the OSH Act 

requires State Plans to provide for the 

development and enforcement of 

occupational safety and health 

standards which are at least as effective 

as Federal OSHA standards that relate to 

the same issues (29 U.S.C. 667(c)(2)). A 

State Plan for State and local 

Government must provide for the 

development or adoption of such 

standards and must contain assurances 

that the State will continue to develop 

or adopt such standards (29 CFR 

1956.10(c); 1956.11(b)(2)(ii)). A State 

may establish the same standards, 

procedures, criteria, and rules as 

Federal OSHA (29 CFR 1956.11(a)(1)), 

or alternative standards, procedures, 

criteria, and rules that are at least as 

effective as those of Federal OSHA (29 

CFR 1956.11(a)(2)). Among other 

requirements, State standards that deal 

with toxic materials or harmful physical 

agents, must adequately assure, to the 

extent feasible, that no employee will 

suffer material impairment of health or 

functional capacity, even if such 

employee has regular exposure to the 

regulated hazard throughout the 

employee’s working life (29 CFR 

1956.11(b)(2)(i)). Where a State’s 

standards are not identical to Federal 

OSHA’s, they must be promulgated 

through a procedure allowing for 

consideration of all pertinent factual 

information and participation of all 

interested persons (29 CFR 

1956.11(b)(2)(iii)). The State Plan must 

provide for prompt and effective 

standards setting actions for protection 

of employees against new and 

unforeseen hazards, by such means as 

the authority to promulgate emergency 

temporary standards (29 CFR 

1956.11(b)(2)(v)). State standards must 

provide for furnishing employees 


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Federal Register / Vol. 87, No. 159 / Thursday, August 18, 2022 / Rules and Regulations 50769 

appropriate information regarding 

hazards in the workplace through labels, 

posting, medical examinations, etc. (29 

CFR 1956.11(b)(2)(vi)). They must 

require suitable protective equipment 

and technological procedures with 

respect to regulated hazards, including 

monitoring or measuring exposure, 

where appropriate (29 CFR 

1956.11(b)(2)(vii)). M.G.L. c. 149, §§ 6 

and 61⁄2 authorize the DLS to investigate 

and issue fines to places of public 

employment. M.G.L. c. 149, § 61⁄2

includes the requirement that ‘‘Public 

employers shall provide public 

employees at least the level of 

protection provided under the federal 

Occupational Safety and Health Act of 

1970, 29 U.S.C. 651 et seq., including 

standards and provisions of the general 

duty clause contained in 29 U.S.C. 654.’’ 

Massachusetts promulgated regulations 

pursuant to M.G.L. c. 149, § 61⁄2. Those 

regulations include 454 CMR 25.00 and 

29.00, which were promulgated and/or 

amended according to M.G.L. c. 30A, § 1 

et seq., the Massachusetts State 

Administrative Procedure Act (State 

APA). 454 CMR 25.00 incorporates the 

standards set forth under the OSH Act, 

29 U.S.C. 651 et seq., including the 

General Duty Clause, and regulations, 

29 CFR parts 1903, 1904, 1910, 1915, 

1917, 1918, 1926, 1928, and 1977, and 

applies them to Massachusetts places of 

State and local Government 

employment. 454 CMR 29.00 provides 

the procedures for issuing civil 

penalties and hearing appeals 

(Document ID 0048, p. 10). 

M.G.L. c. 149, § 61⁄2 created the 

Occupational Health and Safety Hazard 

Advisory Board (Advisory Board), 

whose members are appointed by the 

Governor. The Advisory Board evaluates 

injury and illness data, recommends 

training and implementation of safety 

and health measures, and monitors the 

effectiveness of safety and health 

programs to determine where additional 

resources are needed to protect the 

safety and health of State and local 

Government employees. The DLS 

consults with the Advisory Board prior 

to promulgating occupational safety and 

health regulations and adopting 

regulations promulgated by OSHA, 

pursuant to M.G.L. c. 149, § 61⁄2(d) 

(Document ID 0048, pp. 10–11). 

In all rulemaking, the DLS follows its 

State APA and 950 CMR 20.00 

(PREPARING AND FILING 

REGULATIONS). Prior to the adoption, 

amendment, or repeal of any regulation 

where the violation of the regulation is 

punishable by fine or imprisonment, 

except for emergency temporary 

standards, the DLS must provide notice 

and hold a public hearing where any 

interested persons, data, views, 

arguments, or comments either orally, in 

writing, or both, shall be accepted for 

consideration. The DLS has provided 

assurances that it will complete this 

process to adopt all Federal 

occupational safety and health 

standards not promulgated as 

emergency temporary standards, within 

six months, as required by OSHA 

regulation (Document ID 0048, p. 11). 

When the DLS promulgated 454 CMR 

25.02, it incorporated the following 

phrase, ‘‘All current and updated 

regulations and references at 29 CFR 

parts 1903, 1904, 1910, 1915, 1917, 

1918, 1926, 1928 and 1977 are 

incorporated by reference, and 

applicable to all places of employment 

covered by 454 CMR 25.00’’ with the 

intent of automatically adopting any 

future changes of revisions of the 

Federal OSHA standards. However, this 

method of adopting standards is 

prohibited by the State APA. Therefore, 

the DLS, as a developmental step, will 

amend 454 CMR 25.00 to remove this 

phrase and clarify its rulemaking 

process with respect to the adoption of 

Federal OSHA standards (Document ID 

0048, p. 11). 

In addition, consistent with 29 CFR 

1953.4(b), Massachusetts has provided 

assurances that it will timely adopt and/ 

or implement all other Federal Program 

Changes, or an at least as effective 

alternative, whenever OSHA designates 

such Federal Program Changes to be 

‘‘adoption required’’ or ‘‘equivalency 

required.’’ This includes the adoption of 

all Federal Directives designated as 

‘‘adoption required’’ or ‘‘equivalency 

required’’ by OSHA, or an at least as 

effective alternative (Document ID 0048, 

p.11). 

The DLS has the authority under 

M.G.L. c. 149, § 61⁄2 to adopt alternative 

or different occupational health and 

safety standards where no Federal 

standards are applicable to the 

conditions or circumstances or where 

standards that are more stringent than 

the Federal are deemed advisable. New 

or modified standards may be requested 

through research and experience during 

inspections, a recommendation from the 

Advisory Board, and an interested 

person. Prior to the development and 

promulgation of new standards or the 

modification or revocation of existing 

standards, the DLS would consider 

input from the Advisory Board, per 

M.G.L. c. 149, § 61⁄2(d), experts with 

technical knowledge, and submissions 

from interested persons, and provide the 

opportunity for interested persons to 

participate in any hearing. To be 

considered by the Advisory Board, new 

or modified standards are required to be 

more protective of employees than 

existing OSHA standards, or to address 

issues for which there is no existing 

OSHA standard (Document ID 0048, p. 

12). 

The DLS has the authority to adopt 

emergency temporary standards where 

State and local Government employees 

may be exposed to unique hazards for 

which existing standards do not provide 

adequate protection for the preservation 

of their health or safety. Emergency 

rulemaking procedures are in the State 

APA at M.G.L. c. 30A, § 2, 3, & 6 and 

950 CMR 20.05. An emergency is 

defined in the State APA as the 

existence of a situation where it is 

necessary to adopt, amend, or repeal a 

regulation for the preservation of the 

public health, safety, or general welfare 

immediately, and where the observance 

of the requirements of notice and a 

public hearing would be contrary to the 

public interest. The DLS’s finding of an 

emergency and a brief statement of the 

reasons for its finding shall be 

incorporated in the emergency 

regulation as filed with the State 

Secretary. 

With regard to Federal occupational 

safety and health standards promulgated 

as emergency temporary standards, if 

OSHA promulgates an emergency 

temporary standard, Massachusetts has 

provided assurances that the DLS will, 

and has the authority to, adopt and rely 

on OSHA’s findings of grave danger and 

reasonable necessity, and that such 

reliance on Federal OSHA’s findings 

will be sufficient to satisfy the 

requirements of the State APA. The DLS 

would file emergency regulations within 

30 days of the Federal promulgation 

date unless an existing State standard is 

deemed to be at least as effective, 

following the emergency rulemaking 

procedures as outlined in the State APA 

at M.G.L. c. 30A, §§ 2, 3, & 6, and 950 

CMR 20.05(2). An emergency regulation 

becomes effective immediately when 

filed or such later time as specified 

therein, per M.G.L. c. 30A, § 6 

(Document ID 0048, pp. 12–14). 

Per the State APA, and as described 

at 950 CMR 20.05(2), such emergency 

temporary regulations may only remain 

in effect no longer than three months 

from the date filed with the State 

Secretary or until superseded by a 

permanent regulation. During the three 

months covered by the emergency 

regulation, the DLS has provided 

assurances that it would proceed with 

the rulemaking process as described in 

950 CMR 20.05(2)(a) through (c) to 

adopt the ETS for a period equal to or 

exceeding Federal OSHA’s ETS, and 

that it would make an emergency 

temporary standard permanent within 


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2Massachusetts has already written and adopted 

a Massachusetts Field Operations Manual (MA 

FOM) based on Federal OSHA’s Field Operations 

Manual (FOM) with some differences to reflect 

differences between the State Plan and Federal 

OSHA. Federal OSHA is currently reviewing the 

Massachusetts FOM. The DLS has provided 

assurances that, once Federal OSHA’s review is 

complete, it will make any updates, as necessary, 

to ensure that the enforcement policies in the MA 

FOM are at least as effective as Federal OSHA’s 

FOM. This commitment is also a developmental 

step (Document ID 0048, p. 29). 

three months of its effective date 

pursuant to 950 CMR 20.05(2)(a) 

through (c), provided that the Federal 

emergency temporary standard remains 

in effect (Document ID 0048, pp. 12–13). 

As previously discussed, five 

commenters provided nearly identical 

public comments in support of OSHA’s 

proposal to grant the Massachusetts 

State Plan initial approval. These five 

commenters also expressed concerns 

regarding the Massachusetts rulemaking 

process, and particularly regarding 

Massachusetts’ recent decision not to 

adopt OSHA’s COVID–19 Healthcare 

Emergency Temporary Standard 

(COVID–19 Healthcare ETS) (Document 

ID 0049; 0050; 0051; 0054; 0056). 

Additionally, they expressed concerns 

that the State APA only permits a 

Massachusetts emergency temporary 

standard to remain in effect for three 

months, whereas the commenters state 

that the OSH Act contemplates an 

emergency temporary standard to 

remain effective until superseded by a 

permanent standard, ‘‘a process 

contemplated by the OSH Act to occur 

within 6 months of the [Emergency 

Temporary Standard’s] promulgation.’’ 

OSHA appreciates these commenters’ 

perspective. It is true that Massachusetts 

did not adopt OSHA’s COVID 

Healthcare ETS. However, the agency 

does not find that Massachusetts’ failure 

to adopt that ETS suggests a deficiency 

in the State Plan because Massachusetts 

also did not have an OSHA-approved 

State Plan when the COVID Healthcare 

ETS was published in 2021, and thus 

was not required by the OSH Act to 

have and enforce standards that were at 

least as effective as Federal OSHA at 

that time. Moreover, OSHA specifically 

consulted with the DLS regarding 

Massachusetts’ decision not to adopt 

OSHA’s COVID–19 Healthcare ETS, and 

Massachusetts made assurances, 

discussed above, that it will timely 

adopt all Federal standards promulgated 

in the future, including any future 

emergency temporary standards, and 

that it will adopt a permanent standard 

that is at least as effective as a Federal 

emergency temporary standard, within 

the three-month timeframe that the State 

APA permits emergency regulations in 

Massachusetts to remain in effect. 

OSHA notes that State Plans’ statutory 

and regulatory requirements for 

adopting Federal OSHA standards vary 

considerably by State. OSHA will 

continue to monitor Massachusetts’ 

ability to timely adopt Federal 

standards, including emergency 

temporary standards, if promulgated, 

including during the three-year 

developmental period following 

OSHA’s grant of initial approval to the 

Massachusetts State Plan and prior to 

certifying the State Plan’s completion of 

all developmental steps in accordance 

with 29 CFR 1956.23, 1902.33, and 

1902.34. 

Based on the preceding Plan 

provisions, assurances, and 

commitments, OSHA finds the 

Massachusetts State Plan to have met 

the statutory and regulatory 

requirements for initial plan approval 

with respect to adoption of occupational 

safety and health standards and Federal 

Program Changes. 

D. Variances 

A State Plan must have authority to 

grant variances from State standards 

upon application of a public employer 

or employers which corresponds with 

Federal OSHA’s authority under 

sections 6(b)(6) and 6(d) of the OSH Act 

(29 U.S.C. 655(b)(6) and (d); 29 CFR 

1956.11(b)(2)(iv). Such authority must 

include provisions for the consideration 

of views of interested parties, by such 

means as giving affected employees 

notice of each application and an 

opportunity to request and participate 

in hearings or other appropriate 

proceedings relating to variance 

applications (29 CFR 1956.11(b)(2)(iv)). 

Per 454 CMR 25.05(6), variances may 

be granted when, ‘‘The Director, on the 

record, after notice, an inspection when 

warranted, and an opportunity for a 

hearing may provide such reasonable 

limitations and may make such rules 

and regulations allowing reasonable 

variations, tolerances, and exemptions 

to and from any or all provisions of 454 

CMR 25.00 as found necessary and 

proper. Such action shall not be in effect 

for more than six months without 

notification to affected employees and 

an opportunity being afforded for a 

hearing.’’ The DLS has provided 

assurances that variances may not be 

granted unless it is established that 

adequate protection is afforded to 

employees under the terms of the 

variance. However, current DLS 

provisions for granting variances, found 

at 454 CMR 25.05(6), are inconsistent 

with OSHA’s permanent variance 

procedure. Therefore, during its 

developmental period, Massachusetts 

has provided assurances that it intends 

to complete the developmental step of 

amending 454 CMR 25.05 to modify its 

variance requirements to become 

consistent with those in the OSH Act 

and to adopt OSHA’s regulation 

governing variances, 29 CFR 1905 

(Document ID 0048, pp. 14–15). 

Accordingly, OSHA finds that the 

Massachusetts State Plan has adequately 

provided assurances that it will meet 

the statutory and regulatory 

requirements for initial plan approval 

with respect to variances within the 

developmental period. 

E. Enforcement 

Section 18(c)(2) of the OSH Act 

requires a State Plan to include 

provisions for enforcement of State 

standards which are or will be at least 

as effective in providing safe and 

healthful employment and places of 

employment as the Federal program, 

and to assure that the State’s 

enforcement program for public 

employees will continue to be at least as 

effective as the Federal program in the 

private sector (29 U.S.C. 667(c)(2); see 

also 29 CFR 1956.10(d)(1)). 

1. Legal Authority 

The State Plan must require State and 

local Government employers to comply 

with all applicable standards, rules and 

orders and must have the legal authority 

necessary for standards enforcement (29 

U.S.C. 667(c)(4); 29 CFR 1956.10(d)(2), 

1956.11(c)(2)(viii)). 

M.G.L. c. 149 § 61⁄2 requires public 

employers to, ‘‘provide public 

employees at least the level of 

protection provided under the Federal 

Occupational Safety and Health Act of 

1970, 29 U.S.C. 651 et. seq., including 

standards and provisions of the general 

duty clause contained in 29 U.S.C. 654.’’ 

The DLS, as the designated enforcement 

agency for M.G.L. c. 149 § 61⁄2, has the 

authority to inspect public sector 

workplaces pursuant to M.G.L. c. 149, 

§§ 6, 61⁄2, 10, 17, and 454 CMR 25.03. 

According to 454 CMR 25.03(1)(a), the 

DLS has the authority to ‘‘enter without 

delay’’ public sector workplaces to 

conduct inspections. M.G.L. c. 149, §§ 6, 

61⁄2(e), 10, and 17, 454 CMR 25.03 and 

25.05(4), as well as the Massachusetts 

Field Operation Manual (MA FOM) 2 at 

Chapter 3(IV)(C), provide procedures for 

when an employer refuses entry to the 

DLS inspector. Pursuant to 454 CMR 

25.03(c), the DLS may question 

privately any employer, operator, 

manager, agent or employee. The DLS 

has the authority to review employer 

records as part of an inspection under 

M.G.L. c. 149 § 17, which states that the 

DLS, ‘‘. . . shall have access to all 


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records pertaining to wages, hours, and 

other conditions of employment which 

are found essential to such 

investigations.’’ This authority is also 

included in 454 CMR 25.03(c) 

(Document ID 0048, pp. 16–17). 

Additional legal authority of the 

Massachusetts State Plan related to 

enforcement is discussed below. 

2. Inspections 

A State Plan must provide for the 

inspection of covered workplaces, 

including in response to complaints, 

where there are reasonable grounds to 

believe a hazard exists (29 CFR 

1956.11(c)(2)(i)). When no compliance 

action results from an inspection of a 

violation alleged by an employee 

complaint, the State must notify the 

complainant of its decision not to take 

compliance action by such means as 

written notification and opportunity for 

informal review (29 CFR 

1956.11(c)(2)(iii)). 

As previously noted, the DLS has the 

authority to inspect any workplace 

where work is being performed by an 

employee of a State or local Government 

employer to enforce its occupational 

safety and health standards pursuant to 

M.G.L. c. 149, §§ 6, 61⁄2, 10 and 17, and 

454 CMR 25.03 (Document ID 0048, p. 

17). The DLS will accept a complaint 

from any source: employees, 

representatives of employees, or 

members of the public. Complaints may 

be made in person, by telephone, or by 

email. A complaint form is available on 

the DLS website. A complainant may 

request that their name not be revealed 

to the employer. While allegations made 

in the complaint are provided to the 

employer, copies of the complaint form 

are not regularly provided to the 

employer. However, under court order, 

the DLS may be required to provide the 

complaint form and the name of the 

complainant to the State or local 

Government employer. If the DLS 

determines upon the receipt of a 

complaint that there are reasonable 

grounds to believe that unsafe or 

unhealthful working conditions exists, 

an inspector shall be assigned to the 

case to determine if such violation or 

danger exists per 29 CFR 1903.11, 

incorporated at 454 CMR 25.02, and the 

MA FOM Chapter 9. When contact 

information has been provided, the DLS 

will inform the individual who has 

made a complaint that an inspection 

will be scheduled and that the 

individual will be advised of the results. 

If the DLS determines that there are no 

reasonable grounds to believe that a 

violation or danger exists, the employee 

or representative of the employee who 

alleged violations will be notified of 

such determination per procedures of 

the MA FOM Chapter 9, as required in 

29 CFR 1903, as adopted under 454 

CMR 25.00 (Document ID 0048, p. 20). 

3. Employee Notice and Participation in 

Inspection 

In conducting inspections, the State 

Plan must provide an opportunity for 

employees and their representatives to 

point out possible violations through 

such means as employee 

accompaniment or interviews with 

employees (29 CFR 1956.11(c)(2)(iii)). In 

addition, the State Plan must provide 

that employees be informed of their 

protections and obligations under the 

OSH Act by such means as the posting 

of notices (29 CFR 1956.11(c)(2)(iv)), 

and provide that employees have access 

to information on their exposure to 

regulated agents and access to records of 

the monitoring of their exposure to such 

agents (29 CFR 1956.11(c)(2)(vi)). 

During the walkaround inspection, 

representatives of the employer and 

employees are allowed to accompany 

the DLS throughout the inspection 

process so long as they do not interfere 

in the conduct of the inspection or 

present a safety or health hazard as 

determined in the sole discretion of the 

DLS, pursuant to 454 CMR 25.03(6) 

(Document ID 0048, p. 19). 

Any State or local Government 

employer who violates any of the 

posting requirements, pursuant to 29 

CFR 1903.2 & 1903.16 incorporated by 

454 CMR 25.02, 454 CMR 25.04, and the 

MA FOM Chapter 6(X), shall be 

assessed a penalty of not more than 

$1,000 for each violation pursuant to 

M.G.L. c. 149, § 6 (Document ID 0048, 

p. 27). 

State and local Government 

employers in Massachusetts are 

required to maintain accurate records 

regarding occupational safety and health 

injuries, illnesses, deaths, and 

exposures to toxic materials, and 

employees and/or employee 

representatives have the right to access 

the records pursuant to 29 CFR 

1904.35(b)(2) and 29 CFR 1910.1020 as 

incorporated by 454 CMR 25.02 and 

25.06(1) (Document ID 0048, p. 18). 

4. Nondiscrimination Protections 

State Plans must provide necessary 

and appropriate protection to employees 

against discharge or discrimination for 

exercising their rights under the State 

program, including by such means as 

providing for employer sanctions and 

employee confidentiality (29 CFR 

1956.11(c)(2)(v)). 

The DLS has authority to remedy 

retaliation for a State or local 

Government employee who files a 

complaint, instituted any proceeding, 

testified, or exercised any rights 

afforded by 454 CMR 25.00, pursuant to 

29 CFR 1977 as incorporated at 454 

CMR 25.02 and 25.07. Any State or local 

Government employee who believes 

that they have been discharged or 

otherwise discriminated against in 

violation of 454 CMR 25.07 and 

incorporated 29 CFR 1977, may within 

30 days after the alleged violation 

occurs, file a complaint with the DLS, 

alleging discrimination. The DLS may 

seek a remedy for an employee who files 

a retaliation complaint for discharge or 

discrimination within 30 days after any 

alleged violation pursuant to 29 CFR 

part 1977, in accord with 454 CMR 

25.07 & 25.02 and the MA FOM Chapter 

9(I)(J)(2). Massachusetts has also 

adopted, and will conduct inspections 

consistent with, the OSHA 

Whistleblower Investigations Manual, 

CPL 02–03–007. If upon investigation, 

the DLS determines that the provisions 

of 454 CMR 25.07 have been violated, 

an action shall be brought for all 

appropriate relief, including rehiring or 

reinstatement of the employee to their 

former position with back pay, pursuant 

to 29 CFR 1977.3 as incorporated by 454 

CMR 25.02. In addition, the DLS has a 

fine structure that can increase the 

amount of future fines, up to the current 

maximum of one thousand dollars for 

each violation, if further discrimination 

were to occur, pursuant to M.G.L. c. 

149, § 6, 454 CMR 25.05(1), 454 CMR 

29.04(2)(d), and MA FOM Chapter 9(II) 

procedures. 

Massachusetts also has a 

Whistleblower’s Protection statute, 

M.G.L. c. 149, § 185, that protects State 

and local Government employees and 

prohibits retaliation through a right of 

private civil action. Any State or local 

Government employee or former 

employee aggrieved of a violation of 

M.G.L. c. 149, § 185 may, within two 

years, institute a civil action in Superior 

Court. All remedies available in 

common law tort actions shall be 

available to prevailing plaintiffs, 

including reinstatement and back pay 

(Document ID 0048, pp. 21–22). 

The five commenters that provided 

nearly identical public comments in 

support of OSHA’s proposal to grant the 

Massachusetts State Plan initial 

approval also raised concerns that the 

Massachusetts State Plan’s adoption of 

OSHA’s regulations at 29 CFR 1977 

governing Discrimination Against 

Employees Exercising Rights Under the 

Williams-Steiger Occupational Safety 

and Health Act of 1970 and 

incorporation of these regulations at 454 

CMR 25.07 may not provide 

Massachusetts with adequate legal 


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authority to investigate and take 

enforcement action if a State or local 

Government employee believes that 

they have been discharged or otherwise 

discriminated against in violation of the 

Massachusetts State Plan’s regulations 

Document ID 0049; 0050; 0051; 0054; 

0056). 

OSHA’s understanding is that 

Massachusetts adopted 454 CMR 25.07 

and 29 CFR 1977 through the 

rulemaking process required by the 

State APA, and thus OSHA’s 

understanding, consistent with the 

Massachusetts State Plan’s assurances, 

is that the DLS currently has authority 

to enforce these provisions. OSHA notes 

that at least one other State and local 

Government State Plan, Maine, has 

recently similarly adopted 29 CFR 1977 

without issue. However, OSHA agrees 

that, were a State court to determine 

that the Massachusetts State Plan lacked 

the authority to enforce its antiretaliatory provisions, this would likely 

render the State Plan less effective than 

Federal OSHA and necessitate 

Massachusetts making further changes 

to its statutory or regulatory structure, as 

appropriate, to ensure its continued 

enforcement authority. OSHA will 

continue to evaluate the Massachusetts 

State Plan’s ability to enforce its antiretaliation provisions under 454 CMR 

25.07 and 29 CFR 1977, as incorporated, 

including during the three-year 

developmental period following its 

initial approval. 

In addition, these commenters 

expressed concerns that the 

Massachusetts State Plan does not 

include a penalty structure that is the 

equivalent of the punitive damages that 

may be available for violation of the 

antiretaliatory provisions in section 

11(c) of the OSH Act (Document ID 

0049; 0050; 0051; 0054; 0056). As noted 

above, Massachusetts has the authority 

to issue fines of up to one thousand 

dollars for each violation if repeat 

instances of discrimination occur, 

pursuant to M.G.L. c. 149, § 6, 454 CMR 

25.05(1), 454 CMR 29.04(2)(d), and MA 

FOM Chapter 9(II) procedures. As 

discussed below, OSHA’s indices of 

effectiveness for State and local 

Government State Plans provide that, in 

lieu of monetary penalties as sanctions, 

a complex system of enforcement tools 

and rights, including administrative 

orders and employees’ right to contest, 

may be demonstrated to be as effective 

as monetary penalties in achieving 

compliance in public employment (29 

CFR 1956.11(c)(2)(x)). Thus, OSHA has 

found the Massachusetts State Plan to 

have met the statutory and regulatory 

requirements for initial plan approval 

with respect to its nondiscrimination 

protections. 

5. Imminent Danger Procedures 

A State Plan is required to provide for 

the prompt restraint or elimination of 

conditions or practices in places of 

employment which could reasonably be 

expected to cause death or serious 

physical harm immediately or before the 

imminence of such danger can be 

eliminated through enforcement 

procedures otherwise provided for by 

the State Plan (29 CFR 

1956.11(c)(2)(vii)). 

In the case of such imminent danger, 

the DLS has the authority to issue a stop 

work order for violations of safety 

regulations pursuant to 454 CMR 

25.03(7). The Attorney General may 

bring a civil action for declaratory or 

injunctive relief to enforce any order of 

the DLS pursuant to 454 CMR 25.05(4), 

as well as M.G.L. c. 149, §§ 2 and 61⁄2. 

454 CMR 25.08 provides that the DLS 

will follow procedures in 29 CFR 1903, 

which is incorporated by 454 CMR 

25.02, for cases of imminent danger, and 

the MA FOM Chapter 11 also has 

imminent danger procedures. These 

procedures include that, upon 

discovering conditions or practices 

constituting an imminent danger, the 

inspector will immediately address the 

issue with the State or local Government 

employer and ask the employer to notify 

employees and remove them from 

exposure. If the employer does not or 

cannot voluntarily eliminate the hazard 

or remove affected employees from 

exposure, the DLS inspector will 

immediately notify the Program 

Supervisor. If necessary, the Program 

Supervisor will consult with the DLS’s 

General Counsel, the Massachusetts 

State Police, and the Attorney General, 

and take action to eliminate the 

imminent danger to the State or local 

Government employees as soon as 

possible (Document ID 0048, pp. 19–20). 

6. Right of Entry; Advance Notice 

Section 18(c)(3) of the OSH Act 

requires State Plans to provide for a 

right of entry to inspect workplaces that 

is at least as effective as Federal OSHA’s 

right under section 8 of the OSH Act, 

and which includes a prohibition on 

advance notice of inspections (29 U.S.C. 

667(c)(3); 29 CFR 1956.10(e) and (f)). 

Under the Massachusetts State Plan, 

inspectors have the authority to enter 

any place of employment without delay 

and at reasonable times, pursuant to 

M.G.L. c. 149, §§ 61⁄2, 10 and 17 and 454 

CMR 25.03(1)(a) (Document ID 0048, 

p.17). Anyone providing advance notice 

of any inspection, without permission 

from the Director, will be punished per 

M.G.L. c. 268A, §§ 23 & 26 and 454 CMR 

25.03(4). Incorporated 29 CFR 1903.6 

provides four exceptions to the 

prohibition of providing advance notice, 

which are: (1) in cases of imminent 

danger; (2) where the inspection can 

most effectively be conducted after 

regular business hours or where special 

preparations are necessary; (3) where 

necessary to assure the presence of the 

employer and employees or needed 

personnel; (4) or in other circumstances 

where the Director determines that the 

giving of advance notice would enhance 

the probability of an effective and 

thorough inspection (Document ID 

0048, pp. 18–19). 

The five commenters that provided 

nearly identical public comments in 

support of OSHA’s proposal to grant the 

Massachusetts State Plan initial 

approval raised concerns that the 

Massachusetts State Plan regulation, 454 

CMR 25.03(4), allows advance notice of 

inspections if authorized by ‘‘the 

Director’’ without further limitation or 

reference to 29 CFR 1903.6 (Document 

ID 0049; 0050; 0051; 0054; 0056). The 

commenters request that the DLS be 

required to provide details on when and 

why the Director would give permission 

during the developmental period. In 

response to these concerns, OSHA 

notes, as discussed above, that the 

Massachusetts State Plan has adopted 

through rulemaking and incorporated 

the requirements of 29 CFR 1903.6, and 

thus is subject to their limitations. 

Further, OSHA finds that the reference 

to ‘‘the Director’’ in 454 CMR 25.03(4) 

is consistent with 29 CFR 1903.6, which 

vests decision-making authority with 

regard to giving advance notice of 

inspections with OSHA Area Directors. 

Finally, 454 CMR 25.03(4) makes clear 

that sanctions are available under 

M.G.L. c. 268A, sections 23 and 26, for 

persons who give advance notice of any 

inspection without authority from the 

DLS Director. Based on this, OSHA has 

determined that the Massachusetts State 

Plan’s requirements regarding advance 

notice of inspections are at least as 

effective as Federal OSHA’s 

requirements. 

7. Citations, Sanctions, and Abatement 

A State Plan for State and local 

Government must provide for prompt 

notice to State and local Government 

employers and employees when alleged 

violations have occurred, including 

proposed abatement requirements (29 

CFR 1956.11(c)(2)(ix)). The State Plan 

must further provide the authority for 

effective sanctions to be issued against 

employers violating State occupational 

safety and health standards. In lieu of 

monetary penalties as sanctions, a 


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complex system of enforcement tools 

and rights, including administrative 

orders and employees’ right to contest, 

may be demonstrated to be as effective 

as monetary penalties in achieving 

compliance in public employment (29 

CFR 1956.11(c)(2)(x)). 

The DLS’s authority to issue Civil 

Citations and penalties is established in 

M.G.L. c. 149, §§ 6 and 61⁄2, 454 CMR 

25.00, and 454 CMR 29.00, and 29 CFR 

part 1903, as incorporated by 454 CMR 

25.02. If an inspector believes that a 

violation of a safety and health standard 

exists, the inspector will issue a written 

Order to Correct within 180 days of the 

completion of the inspection process. 

This report will describe the nature of 

the violation, including reference to the 

appropriate regulation, the corrective 

action to abate the violation, and an 

abatement date for each violation, 

pursuant to 454 CMR 25.05(2). The DLS 

shall provide written notification to the 

appropriate governing official, public 

administrator, agency head, and/or 

personnel director, pursuant to 454 

CMR 25.05(3). No reports will be issued 

after 180 days from the initiation of an 

inspection. Massachusetts will amend 

454 CMR 25.05(2) during its 

developmental period to reflect this 

policy (Document ID 0048, p. 22). 

The Director has the discretion to 

issue civil penalties of up to $1,000 per 

violation, pursuant to M.G.L. c. 149, § 6, 

and 454 CMR 29.04(2)(d). The DLS 

generally issues a Written Warning as 

the first enforcement action taken 

against a State or local Government 

employer. However, an employer’s 

failure to correct a violation within the 

period of time specified in a Written 

Warning and Order to Correct issued by 

the DLS may result in the issuance of a 

Civil Citation or other enforcement 

action. The DLS may also issue 

penalties as a first method of 

enforcement, without a prior written 

warning, depending on the gravity of 

the violation and when the violation 

warrants such action. The DLS has 

authority to take other enforcement 

actions, including issuing a Stop Work 

Order in cases of imminent danger or 

other cases as deemed appropriate, and 

the Massachusetts Attorney General 

may bring a civil action for declaratory 

or injunctive relief where necessary 

(Document ID 0048, pp. 23–26). 

The DLS will offer appropriate 

abatement assistance during the 

walkaround to explain how workplace 

hazards might be eliminated and advise 

a State or local Government employer of 

apparent violations and other pertinent 

issues during the closing conference, in 

the interest of providing the employer 

an opportunity to reduce the risk to 

employees from that hazard. In some 

circumstances, the employer’s 

immediate correction or initiation of 

steps to abate a hazard during the 

inspection may result in a good faith 

reduction in any proposed penalty, 

pursuant to 29 CFR 1903.15(b) and (c) 

as incorporated by 454 CMR 25.02, 454 

CMR 29.00 and the MA FOM Chapter 

6(III)(B)(3)(b) (Document ID 0048, p. 23). 

Covered employers must provide 

documentation of abatement pursuant to 

29 CFR 1903.19(d), incorporated by 454 

CMR 25.02 and the MA FOM Chapter 

6(X)(C), or a follow-up inspection may 

be scheduled after the abatement time 

frame has expired. A written response 

from the employer will be evaluated by 

the DLS for completeness and 

appropriateness in relation to the report. 

If the written response is inadequate, a 

follow-up inspection can be scheduled 

after the abatement time frame, per the 

MA FOM Chapter 7(XI)(B). The results 

of the follow-up inspection will then be 

documented in a report that includes 

any corrective measures taken by the 

employer. This report will be sent to the 

complainant if the original inspection 

was initiated by a complaint. The 

complainant may refute or question any 

abatement measure, per the MA FOM 

(Document ID 0048, p. 23). 

8. Contested Cases 

A State Plan for State and local 

Government employees must have 

authority and procedures for employer 

contests of violations alleged by the 

State, penalties/sanctions, and 

abatement requirements at full 

administrative or judicial hearings. 

Employees must also have the right to 

contest abatement periods and the 

opportunity to participate as parties in 

all proceedings resulting from an 

employer’s contest (29 CFR 

2956.11(c)(2)(xi)). 

Under the Massachusetts State Plan, 

any person, State or local Government 

employer, or other entity aggrieved by a 

Civil Citation, Order, or Penalty for 

violation of a standard under 454 CMR 

25.00, promulgated pursuant to M.G.L. 

c. 149, § 61⁄2, may request that an 

administrative hearing be held by 

submitting a written request to the 

Director or their representative within 

fifteen business days after the receipt of 

the Civil Citation or Order, pursuant to 

M.G.L. c. 149, § 9 and as detailed in 454 

CMR 29.04(6) as referenced by 454 CMR 

25.05(1). A State or local Government 

employer may contest a Civil Citation, 

penalty, or abatement period at an 

informal conference and an 

administrative hearing, pursuant to 

M.G.L. c. 149, § 9 and as detailed in 454 

CMR 29.04(6) as referenced by 454 CMR 

25.05(1) and the MA FOM Chapter 8. 

Employees or their authorized 

representatives may question the 

reasonableness of abatement periods 

pursuant to 29 CFR 1903, as adopted in 

454 CMR 25.00, M.G.L. c. 149, § 9 as 

detailed in 454 CMR 29.04(6) and the 

MA FOM. Employees or their 

authorized representatives may 

participate in review proceedings 

pursuant to 29 CFR 1903, as adopted in 

454 CMR 25.00, M.G.L. c. 149, § 9 as 

detailed in 454 CMR 29.04(6) and the 

MA FOM Chapter 8. 

Informal conferences may be held 

prior to a formal administrative hearing 

pursuant to 29 CFR 1903.20, as 

incorporated by 454 CMR 25.02 and the 

MA FOM Chapter 8. At the request of 

an affected State or local Government 

employer, employee, or employee 

representative, an informal conference 

may be held within fifteen business 

days of receipt of a Civil Citation to 

discuss any issues raised by an 

inspection, citation, penalty, or 

intention to appeal. The requesting 

party may attend the conference by 

right, and the other parties shall be 

afforded the opportunity to participate 

in the informal conference. 

All administrative hearings shall be 

held in accordance with the 

requirements of M.G.L. c. 30A and 801 

CMR 1.00: Standard Adjudicatory Rules 

of Practice and Procedure, pursuant to 

29 CMR 29.04(6). Any person, State or 

local Government employer, or other 

entity aggrieved by the decision of an 

administrative hearing may request 

judicial review of the decision by the 

Superior Court with jurisdiction, 

pursuant to M.G.L. c. 149, § 9 and as 

detailed in 454 CMR 29.04(6), 801 CMR 

1.01(13), and M.G.L. c. 30A, § 14 

(Document ID 0048, pp. 25–26). 

Enforcement Conclusion 

OSHA finds that all of the 

enforcement provisions of the 

Massachusetts State Plan described 

above meet the statutory and regulatory 

requirements for initial State Plan 

approval, or that Massachusetts has 

provided sufficient assurances that such 

requirements will be met during the 

developmental period. 

F. Staffing and Resources 

Section 18(c)(4) of the OSH Act 

requires State Plans to provide the 

qualified personnel necessary for the 

enforcement of standards (29 U.S.C. 

667(c)(4)). OSHA’s regulations also 

require OSHA to evaluate whether a 

State Plan for State and local 

Government has or will have a sufficient 

number of adequately trained and 

competent personnel to discharge its 


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responsibilities under the Plan (29 CFR 

1956.10(g)). Section 18(c)(5) of the OSH 

Act requires that the State Plan devote 

adequate funds for the administration 

and enforcement of its standards (29 

U.S.C. 667(c)(5); see also 29 CFR 

1956.10(h)). 

The Massachusetts State Plan 

provides assurances of a fully trained, 

adequate staff within three years of plan 

approval, including a program 

supervisor, an operations supervisor, 10 

safety inspectors and three health 

inspectors. The DLS currently has 

eleven inspectors, seven safety 

inspectors, and four health inspectors, 

all of whom perform duties related to 

both enforcement and consultation. If 

granted initial approval, the DLS will 

add three safety enforcement inspectors. 

The DLS will redesignate two of its 

safety enforcement inspectors and one 

health inspector to exclusively perform 

consultation. These re-designated 

employees will be part of a separate 

consultation division with distinct 

supervision from the enforcement 

inspectors. The DLS will also train one 

supervisor and two enforcement 

inspectors to conduct whistleblower 

investigations (Document ID 0048, pp. 

33–35). 

The accomplishment of hiring to 

achieve staffing goals, reorganization of 

the DLS staffing pattern described 

above, adoption of OSHA’s Mandatory 

Training Program for OSHA Compliance 

Personnel Directive (TED 01–00–019) 

and Mandatory Training Program for 

OSHA Whistleblower Investigators 

Directive (TED 01–00–020), and 

accomplishment of all personnel 

training consistent with these 

Directives, are all included as 

developmental steps in the 

Massachusetts State Plan’s timetable for 

accomplishment within three years, 

during the Massachusetts State Plan’s 

developmental period (Document ID 

0048, pp. 37–38). 

The compliance staffing requirements 

(or benchmarks) for State Plans covering 

both the private and public sectors are 

established based on the ‘‘fully 

effective’’ test established in AFL–CIO v. 

Marshall, 570 F.2d 1030 (D.C. Cir. 

1978). This staffing test, and the 

complicated formula used to derive 

benchmarks for Full Coverage Plans is 

not intended, nor is it appropriate, for 

application to the staffing needs of State 

Plans for occupational safety and health 

programs covering only State and local 

Government workers. However, the DLS 

has given satisfactory assurances that it 

will meet the requirements of 29 CFR 

1956.10 for an adequately trained and 

qualified staff sufficient for the 

enforcement of standards. The DLS has 

also given satisfactory assurances of 

adequate State matching funds (50 

percent) to support the Plan and is 

requesting initial Federal funding of 

$1,250,000, for a total initial program 

effort of $2,500,000. 

Accordingly, OSHA finds that the 

Massachusetts State Plan has provided 

for sufficient, qualified personnel and 

adequate funding for the various 

activities to be carried out under the 

Plan. 

G. Records and Reports 

Section 18(c)(7) of the OSH Act 

requires State Plans to make reports to 

the Assistant Secretary in the same 

manner as if the Plan were not in effect 

(29 U.S.C. 667(c)(7)). State and local 

Government State Plans must ensure 

that covered employers will maintain 

records and make reports on 

occupational injuries and illnesses in a 

manner similar to that required of 

private sector employers under the OSH 

Act (29 CFR 1956.10(i)). Section 18(c)(8) 

of the OSH Act requires State Plans to 

make such reports to the Assistant 

Secretary in such form and containing 

such information as they may from time 

to time require (29 U.S.C. 667(c)(8); 29 

CFR 1956.10(j)). 

The Massachusetts State Plan requires 

State and local Government employers 

to comply with Recordkeeping and 

Reporting Requirements at 454 CMR 

25.06 and 29 CFR 1904, which is 

incorporated per 454 CMR 25.02. Under 

454 CMR 25.06 and 29 CFR 1904, the 

DLS requires State and local 

Government employers to maintain 

accurate records for every occupational 

death, and every occupational injury 

and illness that results in death, loss of 

consciousness, days away from work, 

restricted work activity or job transfer, 

or medical treatment beyond first aid in 

a manner consistent with OSHA’s 

requirements for private sector 

employers. 

Covered employers in Massachusetts 

are required to maintain in each 

workplace an OSHA 300 Log, or 

equivalent, of all recordable 

occupational injuries and illnesses for 

that workplace. Within seven calendar 

days after receiving information about a 

case, the employer shall: decide if the 

case is recordable, determine if it is a 

new case or a recurrence of an existing 

one, establish whether the case was 

work-related, and decide whether to fill 

out the OSHA 301 Incident Report, the 

Massachusetts Department of Industrial 

Accidents form, or a suitable substitute 

that contains the same information as 

these first report of injury forms, 

pursuant to 29 CFR part 1904, 

incorporated per 454 CMR 25.02, and 

454 CMR 25.06. Covered employers 

must post an annual summary of workrelated injuries and illnesses for each 

workplace on the OSHA 300A form, or 

equivalent, from February 1 to April 30 

of the year following the year covered 

by the form in a conspicuous location 

where employees can view it and it 

must be certified by an executive of the 

State or local Government employer, 

pursuant to 29 CFR 1904.32, 

incorporated per 454 CMR 25.02. The 

OSHA 300A Summary of Work-Related 

Injuries and Illnesses, the OSHA 301 

Injury and Illness Incident Report, and 

the OSHA 300 Log of Work-Related 

Injuries and Illnesses, or suitable 

substitutes, must be retained for five 

years following the end of the calendar 

year that the records cover, pursuant to 

29 CFR 1904.33, incorporated per 454 

CMR 25.02. Such records are available 

to the DLS through inspection or by 

request, pursuant to M.G.L. c. 149, §§ 10 

& 17 and 454 CMR 25.03(1)(c) 

(Document ID 0048, pp. 30–31). 

The Massachusetts State Plan has also 

provided assurances in its State Plan 

that it will continue to participate in the 

Bureau of Labor Statistics’ Annual 

Survey of Injuries and Illnesses in the 

State to provide detailed injury, illness, 

and fatality rates for the public sector. 

The State Plan will also provide reports 

to OSHA in the desired form and will 

join the OSHA Information System 

within 90 days of plan approval, 

including the implementation of all 

hardware, software, and adaptations as 

necessary (Document ID 0048, p. 31). 

Accordingly, OSHA finds that the 

Massachusetts State Plan meets, or has 

adequately provided assurances that it 

will meet within the developmental 

period, the requirements of Sections 

18(c)(7) and (8) of the OSH Act on the 

employer and State reports to the 

Assistant Secretary, as required for 

initial State Plan approval. 

H. Voluntary Compliance Program 

State Plans for State and local 

Government employees must undertake 

programs to encourage voluntary 

compliance by covered employers and 

employees, such as by conducting 

training and consultation, and 

encouraging agency self-inspection 

programs (29 CFR 1956.11(c)(2)(xii)). 

The Massachusetts State Plan 

provides that the DLS will continue to 

provide and conduct educational 

programs for public employees 

specifically designed to meet the 

regulatory requirements and needs of 

covered employers. The Plan also 

provides that consultations, including 

site visits, compliance assistance and 

training classes, are individualized for 


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Federal Register / Vol. 87, No. 159 / Thursday, August 18, 2022 / Rules and Regulations 50775 

each work site and tailored to the public 

employer’s concerns. The DLS has 

conducted over 250 on-site 

consultations (i.e., voluntary 

compliance inspections) for State and 

local Government workplaces since 

2015. The DLS will continue to offer 

this service as it is a vital component of 

creating a culture of safety and 

proactively preventing accidents. In 

addition, public agencies are 

encouraged to develop and maintain 

their own safety and health programs as 

an adjunct to but not a substitute for the 

Massachusetts State Plan’s enforcement 

program (Document ID 0048, p. 28). 

The DLS will adopt OSHA’s 

regulation governing Consultation 

Agreements, 29 CFR 1908, during the 

developmental period. The DLS has also 

agreed to adjust its organizational 

structure to ensure separation between 

enforcement and compliance assistance 

(Document ID 0048, p. 28). 

OSHA finds that the Massachusetts 

State Plan provides for the 

establishment and administration of an 

effective voluntary compliance program. 

V. Decision 

OSHA has conducted a careful review 

of the Massachusetts State Plan for the 

development and enforcement of State 

standards applicable to Massachusetts 

State and local Government 

employment, and the record developed 

during the above-described proceedings, 

including public comments received in 

support of OSHA’s June 30, 2022, 

proposal. Based on this review, and on 

the assurances provided by the 

Massachusetts State Plan of the steps 

that it will take during the 

developmental period, OSHA has 

determined that the requirements and 

criteria for initial approval of a 

developmental State Plan have been 

met. The Massachusetts State Plan is 

hereby approved as a developmental 

State Plan for State and local 

Government under Section 18 of the 

OSH Act. 

OSHA notes that Massachusetts 

already has authority to enforce and is 

carrying out enforcement of its 

occupational safety and health 

standards in Massachusetts places of 

State and local Government 

employment. However, this 

determination by OSHA to grant the 

Massachusetts State Plan initial 

approval makes Massachusetts eligible 

to apply for and receive up to 50% 

matching Federal grant funding, as 

authorized by the OSH Act under 

section 23(g) (29 U.S.C. 672(g)). In 

addition, this determination signifies 

the beginning of the Massachusetts State 

Plan’s three-year developmental period, 

during which Massachusetts will be 

required to address the developmental 

steps identified in the Massachusetts 

State Plan narrative that is included in 

the docket of this rulemaking at 

www.regulations.gov (29 CFR 

1956.2(b)(1)) (Document ID 0048, pp. 

37–38). OSHA will publish a 

certification notice in the Federal 

Register to advise the public once 

Massachusetts has completed all 

developmental steps (29 CFR 1956.23; 

29 CFR 1902.33; 1902.34). 

VI. Regulatory Flexibility Act 

OSHA certifies pursuant to the 

Regulatory Flexibility Act of 1980 (5 

U.S.C. 601 et seq.) that the initial 

approval of the Massachusetts State 

Plan will not have a significant 

economic impact on a substantial 

number of small entities. By its own 

terms, the Plan will have no effect on 

private sector employment and is 

limited to the State of Massachusetts 

and its political subdivisions. 

Compliance with State OSHA standards 

is required by State law; Federal 

approval of a State Plan imposes 

regulatory requirements only on the 

agency responsible for administering the 

State Plan. Accordingly, no new 

obligations would be placed on State 

and local Government employers as a 

result of Federal approval of the 

Massachusetts State Plan. The approval 

of a State Plan for State and local 

Government employers in 

Massachusetts is not a significant 

regulatory action as defined in 

Executive Order 12866. 

VII. Federalism 

Executive Order 13132, ‘‘Federalism,’’ 

emphasizes consultation between 

Federal agencies and the States and 

establishes specific review procedures 

the Federal Government must follow as 

it carries out policies which affect State 

or local Governments. OSHA has 

consulted extensively with 

Massachusetts throughout the 

development, submission, and 

consideration of its State Plan. Although 

OSHA has determined that the 

requirements and consultation 

procedures provided in Executive Order 

13132 are not applicable to initial 

approval decisions under the Act, 

which have no effect outside the 

particular State receiving the approval, 

OSHA has reviewed the Massachusetts 

initial approval decision and believes it 

is consistent with the principles and 

criteria set forth in the Executive Order. 

VIII. Effective Date 

OSHA’s decision granting initial 

Federal approval to the Massachusetts 

State and local Government State Plan 

is effective August 18, 2022. OSHA has 

determined that good cause exists for 

making Federal approval of the 

Massachusetts State Plan effective upon 

publication, pursuant to Section 553(d) 

of the Administrative Procedure Act. 

Massachusetts’ program has been in 

effect for many years, and further 

modification of the program will be 

required over the next three years, 

following this decision to grant initial 

approval. OSHA’s proposal provided an 

opportunity for the submission of 

comment and requests for a public 

hearing. The seven comments received 

during this rulemaking strongly 

supported OSHA’s grant of initial 

approval. Further, Federal funds for the 

Massachusetts State Plan are available 

through the Fiscal Year 2022 Omnibus 

Appropriations Act. Therefore, for these 

reasons, this decision is immediately 

effective. 

List of Subjects in 29 CFR Part 1952 

Intergovernmental relations, 

Occupational safety and health, 

Reporting and recordkeeping 

requirements. 

Authority and Signature 

Douglas L. Parker, Assistant Secretary 

of Labor for Occupational Safety and 

Health, U.S. Department of Labor, 200 

Constitution Ave. NW, Washington, DC, 

authorized the preparation of this 

notice. OSHA is issuing this notice 

under the authority specified by Section 

18 of the Occupational Safety and 

Health Act of 1970 (29 U.S.C. 667), 

Secretary of Labor’s Order No. 8–2020 

(85 FR 58393), and 29 CFR parts 1902 

and 1956. 

Douglas L. Parker, 

Assistant Secretary of Labor for Occupational 

Safety and Health. 

For the reasons stated in the 

preamble, 29 CFR part 1952 is amended 

as follows: 

PART 1952—APPROVED STATE 

PLANS FOR ENFORCEMENT OF 

STATE STANDARDS 

■ 1. The authority citation for part 1952 

is revised to read as follows: 

Authority: Sec. 18, 84 Stat. 1608 (29 

U.S.C. 667); 29 CFR part 1902; Secretary of 

Labor’s Order No. 1–2012 (77 FR 3912, Jan. 

25, 2012), or 8–2020 (85 FR 58393, Sept. 18, 

2020), as applicable. 

Subpart B—List of Approved State 

Plans for State and Local Government 

Employees 

■ 2. Add § 1952.29 to read as follows: 


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50776 Federal Register / Vol. 87, No. 159 / Thursday, August 18, 2022 / Rules and Regulations 

§ 1952.29 Massachusetts. 

(a) The Massachusetts State Plan for 

State and local Government employees 

received initial approval from the 

Assistant Secretary on August 18, 2022. 

(b) The Plan further provides 

assurances of a fully trained, adequate 

staff within three years of plan approval, 

including 8 safety and 3 health 

compliance officers for enforcement 

inspections, and 2 safety and 1 health 

consultants to perform consultation 

services in the public sector. The State 

has assured that it will continue to 

provide a sufficient number of 

adequately trained and qualified 

personnel necessary for the enforcement 

of standards as required by 29 CFR 

1956.10. The State has also given 

satisfactory assurance of adequate 

funding to support the Plan. 

(c) The plan only covers State and 

local government employers and 

employees within the State. For 

additional details about the plan, please 

visit https://www.osha.gov/dcsp/osp/ 

stateprogs/massachusetts.html. 

[FR Doc. 2022–17803 Filed 8–17–22; 8:45 am] 

BILLING CODE 4510–26–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2022–0670 

RIN 1625–AA00 

Safety Zone; Cumberland River, 

Nashville, TN 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary safety zone for 

all navigable waters of the Cumberland 

River on mile marker (MM) 190 to 192. 

The safety zone is needed to protect 

personnel, vessels, and the marine 

environment from potential hazards 

created by Nashville CVC–ASAE 

Fireworks. Entry of vessels or persons 

into this zone is prohibited unless 

specifically authorized by the Captain of 

the Port Sector Ohio Valley or a 

designated representative. 

DATES: This rule is effective 9 p.m. 

through 9:30 p.m. on August 20, 2022. 

ADDRESSES: To view documents 

mentioned in this preamble as being 

available in the docket, go to https://

www.regulations.gov, type USCG–2022– 

0670 in the search box and click 

‘‘Search.’’ Next, in the Document Type 

column, select ‘‘Supporting & Related 

Material.’’ 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email Petty Officer Third Class 

Benjamin Gardner, Marine Safety 

Detatchment Nashville, U.S. Coast 

Guard; telephone 615–736–5421, email, 

Benjamin.T.Gardner@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

DHS Department of Homeland Security 

FR Federal Register 

MM Mile marker 

NPRM Notice of proposed rulemaking 

§ Section 

U.S.C. United States Code 

II. Background Information and 

Regulatory History 

The Coast Guard is issuing this 

temporary rule without prior notice and 

opportunity to comment pursuant to 

authority under section 4(a) of the 

Administrative Procedure Act (APA) (5 

U.S.C. 553(b)). This provision 

authorizes an agency to issue a rule 

without prior notice and opportunity to 

comment when the agency for good 

cause finds that those procedures are 

‘‘impracticable, unnecessary, or contrary 

to the public interest.’’ Under 5 U.S.C. 

553(b)(B), the Coast Guard finds that 

good cause exists for not publishing a 

notice of proposed rulemaking (NPRM) 

with respect to this rule because 

publishing an NPRM would be 

impracticable. It is impracticable to 

publish an NPRM because we must 

establish this safety zone by August 20, 

2022 and lack sufficient time to provide 

a reasonable comment period and then 

consider those comments before issuing 

the rule. 

Under 5 U.S.C. 553(d)(3), the Coast 

Guard finds that good cause exists for 

making this rule effective less than 30 

days after publication in the Federal 

Register. Delaying the effective date of 

this rule would be contrary to the public 

interest because immediate action is 

needed to respond to the potential 

safety hazards associated with the 

Nashville CVC–ASAE Fireworks event. 

III. Legal Authority and Need for Rule 

The Coast Guard is issuing this rule 

under authority in 46 U.S.C. 70034 

(previously 33 U.S.C. 1231). The 

Captain of the Port Sector Ohio Valley 

(COTP) has determined that potential 

hazards associated with the Nashville 

CVC—ASAE Fireworks starting August 

20, 2022, will be a safety concern for 

anyone within mile marker 190 to 192. 

on the Cumberland River. This rule is 

needed to protect personnel, vessels, 

and the marine environment in the 

navigable waters within the safety zone 

during the firework display. 

IV. Discussion of the Rule 

This rule establishes a temporary 

safety zone from 9 p.m. until 9:30 p.m. 

on August 20, 2022. The safety zone 

will cover all navigable waters between 

MM 190 to 192 on the Cumberland 

River, extending the entire width of the 

river. The duration of the zone is 

intended to protect personnel, vessels, 

and the marine environment in these 

navigable waters while the fireworks 

display is occuring. No vessel or person 

will be permitted to enter the safety 

zone without obtaining permission from 

the COTP or a designated 

representative. A designated 

representative is a commissioned, 

warrant, or petty officer of the U.S. 

Coast Guard assigned to units under the 

operational control of USCG Sector 

Ohio Valley. 

Vessels requiring entry into this safety 

zone must request permission from the 

COTP or a designated representative. To 

seek entry into the safety zone, contact 

the COTP or the COTP’s representative 

by telephone at 502–779–5422 or on 

VHF–FM channel 16. 

Persons and vessels permitted to enter 

this safety zone must transit at their 

slowest safe speed and comply with all 

lawful directions issued by the COTP or 

the designated representative. 

The COTP or a designated 

representative will inform the public 

through Broadcast Notices to Mariners 

(BNMs), Local Notices to Mariners 

(LNMs), and Marine Safety Information 

Bulletins (MSIBs) about this safety zone, 

enforcement period, as well as any 

changes in the dates and times of 

enforcement. 

V. Regulatory Analyses 

We developed this rule after 

considering numerous statutes and 

Executive orders related to rulemaking. 

Below we summarize our analyses 

based on a number of these statutes and 

Executive orders, and we discuss First 

Amendment rights of protestors. 

A. Regulatory Planning and Review 

Executive Orders 12866 and 13563 

direct agencies to assess the costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits. 

This rule has not been designated a 

‘‘significant regulatory action,’’ under 

Executive Order 12866. Accordingly, 

this rule has not been reviewed by the 

Office of Management and Budget 

(OMB). 


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