[Federal Register Volume 87, Number 125 (Thursday, June 30, 2022)]
[Proposed Rules]
[Pages 39033-39036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-13729]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

[Docket No. OSHA-2022-0008]
RIN 1218-AD41


Massachusetts State Plan for State and Local Government 
Employers; Notification of Submission; Proposal To Grant Initial State 
Plan Approval; Request for Public Comment and Opportunity To Request 
Public Hearing

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

ACTION: Proposed rule; request for written comments; notification of 
opportunity to request informal public hearing.

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SUMMARY: The Massachusetts Department of Labor Standards (the DLS) has 
submitted a developmental State Plan for occupational safety and 
health, applicable only to State and local Government employment 
(workers of the State and its political subdivisions) (Massachusetts 
State Plan), for determination of initial approval under Section 18 of 
the Occupational Safety and Health Act of 1970 (the OSH Act). In this 
notification, OSHA proposes to grant the Massachusetts State Plan 
initial approval based on its preliminary assessment 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. OSHA proposes to fund initial approval of the 
Massachusetts State Plan from the State Plan funding available in the 
Department of Labor's Fiscal Year 2022 budget.

DATES: 
    Written Comments: Comments and requests for a hearing must be 
submitted by August 1, 2022.
    Informal public hearing: Any interested person may request an 
informal hearing concerning the initial approval of the State Plan. 
OSHA will hold such a hearing if the Assistant Secretary of Labor for 
Occupational Safety and Health (Assistant Secretary) finds that 
substantial objections have been filed. After the close of the comment 
period, the Assistant Secretary will review all comments submitted; 
will review all hearing requests; and will schedule an informal hearing 
if a hearing is required to resolve substantial issues.
    Publication in Massachusetts: No later than 5 days following the 
date of publication of this notification in the Federal Register, 
Massachusetts shall publish, or cause to be published, reasonable 
notice within the State containing the same information contained 
herein.

ADDRESSES: Written comments: You may submit written comments and 
requests for an informal hearing electronically at www.regulations.gov, 
which is the Federal e-Rulemaking Portal. Follow the online 
instructions for making electronic submissions.
    Instructions. All submissions must include the agency's name and 
the docket number for this rulemaking (Docket No. OSHA-2021-0008).\1\ 
All comments, including any personal information you provide, are 
placed in the public docket without change and may be made available 
online at www.regulations.gov. Therefore, OSHA cautions commenters 
about submitting information they do not want made available to the 
public or submitting materials that contain personal information 
(either about themselves or others), such as Social Security Numbers 
and birthdates. Submissions must clearly identify the issues addressed 
and the positions taken.
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    \1\ 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 four-digit code.
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    Docket: To read or download comments or other material in the 
docket, go to Docket No. OSHA-2022-0008 at www.regulations.gov. All 
comments and submissions are listed in the www.regulations.gov index; 
however, some information (e.g., copyrighted material) is not publicly 
available to read or download through that website. All comments and 
submissions, including copyrighted material, are available for 
inspection through the OSHA Docket Office. Contact the OSHA Docket 
Office at (202) 693-2350 (TTY (877)889-5627) for assistance in locating 
docket submissions.


FOR FURTHER INFORMATION CONTACT: 
    For press inquiries: Contact Frank Meilinger, Director, OSHA Office 
of Communications, U.S. Department of Labor; telephone: (202) 693-1999; 
email: <a href="/cdn-cgi/l/email-protection#b7dad2dedbded9d0d2c599d1c5d6d9d4dec485f7d3d8db99d0d8c1"><span class="__cf_email__" data-cfemail="29444c404540474e4c5b074f5b48474a405a1b694d4645074e465f">[email protected]</span></a>.
    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: 
<a href="/cdn-cgi/l/email-protection#aec5cfc2c7c0c1d9ddc5c780cac1dbc9eecac1c280c9c1d8"><span class="__cf_email__" data-cfemail="016a606d686f6e76726a682f656e746641656e6d2f666e77">[email protected]</span></a>.

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 employees of the State and its political subdivisions (State and 
local Government employees) (29 CFR 1956.1). The Assistant Secretary 
will approve a State Plan for State and local Government employees 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 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 Plan for an occupational safety and health program 
for State and local Government employees may be approved 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

[[Page 39034]]

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; 29 CFR 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 at page 383 (March 17, 2022)).

II. Massachusetts State Plan History

    The 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, Sec.  6\1/2\). 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. The revised Plan 
has been found to be conceptually approvable as a developmental State 
Plan.
    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.

III. Description of the Massachusetts State Plan

    Massachusetts designates the DLS as the State agency responsible 
for administering the Plan throughout the State. A narrative describing 
the Massachusetts State Plan in detail is included in the docket of 
this rulemaking at www.regulations.gov.
    Under the Massachusetts State Plan's enabling legislation, M.G.L. 
c. 149, Sec. Sec.  6 and 6\1/2\, the DLS has authority to adopt 
standards and regulations and enforce and administer laws and rules 
protecting the safety and health of workers of the State and its 
political subdivisions. The DLS has adopted Federal OSHA occupational 
safety and health standards through rulemaking. OSHA's standards are 
incorporated into the Code of Massachusetts Regulations (CMR) at 454 
CMR 25.02. The DLS has provided assurances that it will timely adopt 
identical or at least as effective standards or enforcement policies in 
the future, whenever OSHA adopts standards and regulations, revisions 
to existing standards, or enforcement policies that OSHA determines 
necessary for the enforcement of such standards. The DLS has also 
provided assurances that it will adopt such standards, policy changes, 
or requirements that are at least as effective as Federal OSHA's within 
six months of Federal promulgation (30 days for any emergency temporary 
standard) in accordance with the requirements set forth at 29 CFR 
1953.5.
    In addition, 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. 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 Act and also adopt OSHA's regulation governing variances, 
29 CFR part 1905.
    The DLS has authority under M.G.L. c. 149, Sec. Sec.  6, 6\1/2\, 10 
and 17, and 454 CMR 25.03 to inspect covered workplaces. This authority 
includes provisions for right of entry for inspection, prohibition of 
advance notice of inspection, and employers' obligations to maintain 
records and provide reports as required. 454 CMR 25.02, as authorized 
through M.G.L. c. 149, Sec.  6\1/2\, incorporates OSHA's regulation 
governing inspections and citations, 29 CFR part 1903, which includes, 
among other requirements, provision for inspections in response to 
employee complaints, for written notification if the determination is 
made that a complaint does not warrant an inspection, and for posting 
written civil citations, pursuant to 29 CFR 1903.16. 454 CMR 25.03(6) 
provides for employer and employee representatives to accompany an 
inspector during the inspection.
    The DLS has the authority to remedy retaliation for a State or 
local Government worker who filed a complaint, instituted any 
proceeding, testified, or exercised any rights afforded under the 
Massachusetts State Plan pursuant to the requirement in M.G.L. c. 149, 
Sec.  6\1/2\ such that Massachusetts State and local Government workers 
have at least the level of protection they would have under OSHA. In 
addition, 454 CMR 25.02 incorporates OSHA's regulation 29 CFR part 
1977--Discrimination Against Employees Exercising Rights Under the 
Williams-Steiger Occupational Safety and Health Act of 1970. 
Massachusetts also has a Whistleblower's Protection statute, M.G.L. c. 
149, Sec.  185, that protects State and local Government employees and 
prohibits retaliation through a right of private civil action.
    The DLS's authority to issue Civil Citations and penalties is 
established in M.G.L. c. 149, Sec. Sec.  6 and 6\1/2\, 454 CMR 25.00, 
454 CMR 29.00, and 29 CFR part 1903, as incorporated by 454 CMR 25.02. 
The Director has the discretion to issue civil penalties of up to 
$1,000 per violation, pursuant to M.G.L. c. 149, Sec.  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.
    The DLS has sole authority for administration and enforcement of 
State

[[Page 39035]]

and local Government occupational safety and health within 
Massachusetts. Prior to adopting or amending regulations, the DLS will 
consult with the Massachusetts Occupational Health and Safety Hazard 
Advisory Board pursuant to M.G.L. c. 149, Sec.  6\1/2\(d). Other DLS 
programs are separate from the WSHP with independent authority and will 
not detract any resources or priorities assigned to the administration 
of the Massachusetts State Plan. When appropriate, the other programs 
may support the WSHP to improve workplace safety and compliance.
    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.
    29 CFR 1956.10(g) requires that State Plans for public employees 
provide a sufficient number of adequately trained and qualified 
personnel necessary for the enforcement of standards. 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 complex 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 assurance 
in its Plan that it will meet the staffing requirements of 29 CFR 
1956.10. The State 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.
    Although the State statute, M.G.L. c. 149, Sec.  6\1/2\, sets forth 
the general authority and scope for implementing the Massachusetts 
State Plan, if granted initial approval, the Massachusetts State Plan 
will be developmental under the terms of 29 CFR 1956.2(b), in that 
specific rules, regulations, and implementing procedures must still be 
adopted or revised to carry out the Plan and make it structurally ``at 
least as effective'' as Federal OSHA and fully operational. As 
previously noted, the Massachusetts State Plan sets forth a timetable 
for the accomplishment of these and other developmental steps within 
three years of Plan approval, as described in the Massachusetts State 
Plan narrative that is included in the docket of this rulemaking at 
www.regulations.gov. This timetable includes the amendment of certain 
Massachusetts State Plan regulations, the adoption of certain OSHA 
regulations, the development of a Technical Manual, transition to use 
of the OSHA Information System, the development of an Annual 
Performance Plan and a Five-Year Strategic Plan, completion of training 
requirements, and implementation of other policies, procedures, and 
instructions necessary for the operation of a program that is at least 
as effective as Federal OSHA in its enforcement of occupational safety 
and health standards.

IV. Effect of Initial Approval

    After review of any written comments received and of information 
received in the event of a public hearing, the Assistant Secretary will 
grant initial approval of the Massachusetts State Plan if the Assistant 
Secretary determines that the Plan meets the criteria set forth in the 
Act and applicable regulations at 29 CFR part 1956. The Assistant 
Secretary will provide notification of this determination and amendment 
of the Code of Federal Regulations in the Federal Register. 
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, 
a determination by OSHA to grant the Massachusetts State Plan initial 
approval will make 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, such determination 
will signify the beginning of the Massachusetts State Plan's 3-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)). 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).

V. Documents of Record

    All information and data presently available to OSHA relating to 
this proceeding have been made a part of the record and placed in the 
OSHA Docket Office. Most of these documents have also been posted 
electronically at www.regulations.gov, which is the Federal e-
Rulemaking Portal; however, some information (e.g., copyrighted 
material) is not publicly available to read or download through that 
website. In addition, the State Plan, the narrative describing the 
Massachusetts State Plan in detail, and written comments received can 
be made available by contacting OSHA's Office of State Programs at 
(202) 693-2200 or the office of the Assistant Regional Director for 
Region 1 at (617) 565-9860.

VI. Public Participation

    The Assistant Secretary's decision whether to grant initial 
approval to the Massachusetts State Plan will be made after careful 
consideration of all relevant information presented in the rulemaking 
(29 CFR 1956.20; 29 CFR 1902.20(b)(1)(i)). To aid the Assistant 
Secretary in making this decision, OSHA is soliciting public 
participation in this process.
    Notice in the State of Massachusetts: The DLS must publish 
appropriate notice within the State of Massachusetts within five days 
of publication of this notification, announcing OSHA's proposal to 
approve a Massachusetts State Plan, contingent on the availability of 
appropriated funds, and giving notice of the opportunity for public 
comment.
    Written comments: OSHA invites interested persons to submit written 
data, views, and comments with respect to this proposed initial State 
Plan approval. These comments must be received on or before August 1, 
2022. When submitting comments, persons must follow the procedures 
specified above in the sections titled DATES and ADDRESSES. Written 
submissions must clearly identify the issues addressed and the 
positions taken with respect to each issue. Comments received by the 
end of the specified comment period will become part of the record and 
will be available for public inspection online at www.regulations.gov 
(Docket Number OSHA-2022-0008).
    Informal public hearing: Pursuant to 29 CFR 1902.13(f), interested 
persons may request an informal hearing concerning the proposed initial 
State Plan approval. Such requests also must be received on or before 
August 1, 2022.

[[Page 39036]]

When submitting comments, persons must follow the procedures specified 
above in the sections titled DATES and ADDRESSES. Such requests must 
present particularized written objections to the proposed initial State 
Plan approval. Within 30 days of the close of the comment period, the 
Assistant Secretary will review all comments submitted and review all 
hearing requests. OSHA will hold the informal hearing if the Assistant 
Secretary finds that substantial objections have been filed. However, 
if, after reviewing the comments received during the written comment 
period, the Assistant Secretary finds that no substantial objections 
have been filed, then no informal public hearing will be held.

VII. Determination

    The Assistant Secretary will, within a reasonable time after the 
close of the comment period or after the certification of the record if 
a hearing is held, publish a decision regarding initial approval of the 
Massachusetts State Plan in the Federal Register. All written and oral 
submissions, as well as other information gathered by OSHA, will be 
considered in any action taken.

VIII. Regulatory Flexibility Act

    OSHA certifies pursuant to the Regulatory Flexibility Act of 1980 
(5 U.S.C. 601 et seq.) that the proposed 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.

F. 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 proposed 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 proposed 
Massachusetts initial approval decision and believes it is consistent 
with the principles and criteria set forth in the Executive order.

List of Subjects in 29 CFR Part 1952

    Approval, State Plans.

Authority and Signature

    Douglas L. Parker, Assistant Secretary of Labor for Occupational 
Safety and Health, U.S. Department of Labor, 200 Constitution Avenue 
NW, Washington, DC 20210, authorized the preparation of this 
notification. OSHA is issuing this notification 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 (Sept. 18, 2020)), and 29 CFR parts 1902 and 1956.

    Signed in Washington, DC.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.

    For the reasons stated in the preamble, OSHA proposes to amend 29 
CFR part 1952 as follows:

PART 1952--APPROVED STATE PLANS FOR ENFORCEMENT OF STATE STANDARDS

0
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

0
2. Add Sec.  1952.29 to read as follows:


Sec.  1952.29  Massachusetts.

    (a) The Massachusetts State Plan for State and local Government 
employees received initial approval from the Assistant Secretary on 
[DATE OF FINAL DETERMINATION].
    (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. 2022-13729 Filed 6-29-22; 8:45 am]
BILLING CODE 4510-26-P


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