[Federal Register Volume 74, Number 131 (Friday, July 10, 2009)]
[Proposed Rules]
[Pages 33189-33192]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16379]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1956

[Docket No. OSHA-2009-0010]
RIN 1218-AC44


Illinois State Plan for Public Employees Only; Notice 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, Department of 
Labor (OSHA).

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

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SUMMARY: This document gives notice of the submission by the Illinois 
Department of Labor of a developmental State Plan for occupational 
safety and health, applicable only to public sector employment 
(employees of the State and its political subdivisions), for 
determination of initial approval under section 18 of the Occupational 
Safety and Health Act of 1970 (the ``Act''). OSHA is seeking written 
public comment on whether or not initial State Plan approval should be 
granted and offers an opportunity to interested persons to request an 
informal public hearing on the question of initial State Plan approval.
    Approval of the Illinois Public Employee Only State Plan will be 
contingent upon a determination that the Plan meets, or will meet 
within three years, OSHA's Plan approval criteria and the availability 
of funding as contained in the Department of Labor's Fiscal Year 2009 
budget.

DATES: Written comments and requests for a hearing must be submitted 
(postmarked, sent or received) by August 10, 2009.

ADDRESSES: You may submit comments and requests for a hearing, 
identified by Docket No. OSHA-2009-0010, by any of the following 
methods:
    Electronically: Comments and attachments and requests for a hearing 
may be submitted electronically at http://www.regulations.gov, which is 
the Federal eRulemaking Portal. Follow the instructions for submitting 
comments.
    Facsimile: If your comments, including attachments, and requests 
for a hearing do not exceed 10 pages, you may fax them to the OSHA 
Docket

[[Page 33190]]

Office at 202-693-1648. Hard copies of these documents are not 
required.
    Regular mail, hand delivery, express mail, messenger or courier 
service: Submit three copies of your comments and attachments, as well 
as hearing requests, to the OSHA Docket Office, Docket No. OSHA-2009-
0010, Technical Data Center, Room N-2625, OSHA, U.S. Department of 
Labor, 200 Constitution Avenue, NW., Washington, DC 20210; Telephone 
202-693-2350 (TTY number 877-889-5627). Note that security-related 
problems may result in significant delays in receiving submissions by 
regular mail. Please contact the OSHA Docket Office for information 
about security procedures concerning delivery of materials by express 
delivery, hand delivery, or courier service. The OSHA Docket Office and 
Department of Labor hours of operation are 8:15 a.m. to 4:45 p.m., ET.
    Instructions: All submissions must include the Agency name and the 
OSHA docket number (OSHA-2009-0010). All submissions, including any 
personal information, are placed in the public docket without revision, 
and will be available online at http://www.regulations.gov. Therefore, 
OSHA cautions members of the public against submitting information and 
statements that should remain private, including comments that contain 
personal information, such as Social Security numbers, birth dates, and 
medical data.
    Docket: To read or download comments or other material in the 
docket, go to http://www.regulations.gov or to the OSHA Docket Office 
at the address above. Documents in the docket are listed in the http://www.regulations.gov index. However, some information (e.g., copyrighted 
material) is not publicly available to read or download through this 
Web site. All submissions, including copyrighted material, are 
available for inspection and copying at the OSHA Docket Office. Contact 
the OSHA Docket Office for assistance in locating docket submissions, 
including notices of intention to appear, the text of testimony, and 
documentary evidence.
    Copies of this Federal Register notice: Electronic copies of this 
notice as well as copies of the proposed Illinois State Plan for Public 
Employees Only are available at http://www.regulations.gov. Electronic 
copies of this notice, as well as news releases and other relevant 
information, are available on OSHA's Web page at http://www.osha.gov.
    Copies of the proposed Illinois State Plan for Public Employees 
Only are also available for review and copying at: OSHA's Regional 
Office in Chicago, Illinois, at 230 South Dearborn Street, 32nd Floor, 
Room 3244, Chicago, Illinois 60604, and at: The Offices of the Illinois 
Department of Labor, Safety Inspection and Education Division at 1 West 
Old State Capitol Plaza, 3rd floor, Springfield, Illinois 62701; 160 
North LaSalle Street, Suite C-1300, Chicago, Illinois 60601; or 2309 
West Main Street, Suite 115, Marion, Illinois 62959.

FOR FURTHER INFORMATION CONTACT: 
    Press inquiries: Contact Jennifer Ashley, Office of Communications, 
Room N-3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue, 
NW., Washington, DC 20210; Telephone (202) 693-1999.
    General and technical inquiries: Contact Barbara Bryant, Director, 
Office of State Programs, Directorate of Cooperative and State 
Programs, OSHA, U.S. Department of Labor, Room N-3700, 200 Constitution 
Avenue, NW., Washington, DC 20210, Telephone (202) 693-2244 or Fax 
(202) 693-1671.

SUPPLEMENTARY INFORMATION: 

A. Background

    Section 18 of the Occupational Safety and Health Act of 1970 (the 
``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 
which a Federal standard 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. 
Regulations promulgated pursuant to the Act at 29 CFR part 1956 provide 
that 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 (``public 
employees''). Under these regulations the Assistant Secretary will 
approve a State Plan for public 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 for public employees as standards promulgated and enforced 
under section 6 of the Federal Act, giving due consideration to 
differences between public and private sector employment. In making 
this determination the Assistant Secretary will consider, among other 
things, the criteria and indices of effectiveness set forth in 29 CFR 
part 1956, subpart B. State and local government workers are excluded 
from Federal OSHA coverage under the Occupational Safety and Health Act 
of 1970.

B. Illinois State Plan History

    In 1973 the Illinois Industrial Commission and the Illinois 
Department of Labor obtained OSHA approval of a State Plan for the 
enforcement of occupational safety and health standards covering 
private sector workplaces as well as a program for public employees in 
Illinois. That Plan was approved by the Assistant Secretary on November 
5, 1973 (38 FR 30436; 29 CFR 1952.280 et seq.). The Plan was 
subsequently withdrawn effective June 30, 1975 by the State of Illinois 
under the authority of then Governor Dan Walker after the State was 
unable to make the necessary modifications to its program and statutory 
authority, and its State funding was withdrawn (40 FR 24523).
    Since 1985, the Illinois Department of Labor (IDOL), Safety 
Inspection and Education Division (SIED), has adopted standards and 
performed inspections in the public sector (State, county, and 
municipal employees) as outlined under the provisions of the State's 
existing enabling legislation: The Illinois Safety Inspection and 
Education Act (SIEA) [820 ILCS 220] and the Illinois Health and Safety 
Act (HSA) [820 ILCS 225]. In 2005, Illinois began working on a Public 
Employee Only State Plan and submitted a draft Plan to OSHA in May of 
2006. OSHA's review findings were detailed in various memoranda and 
other documents, including a May 18, 2007 letter to the Illinois 
Department of Labor Director Catherine Shannon. OSHA determined that 
the Illinois statutes, as structured, and the proposed State Plan 
presented several obstacles to meeting the Federal Public Employee Only 
State Plan approval criteria in 29 CFR 1956. Amendments to both the 
Illinois Safety Inspection and Education Act and the Illinois Health 
and Safety Act were proposed and enacted by the Illinois General 
Assembly and signed into law by the Governor in 2006 and 2007. The 
amended legislation provides the basis for establishing a comprehensive 
occupational safety and health program applicable to the public 
employees in the State.
    Illinois formally submitted a revised Plan applicable only to 
public employees for Federal approval on June 18, 2008. Over the next 
several months, OSHA worked with Illinois in identifying areas of the 
proposed Plan which needed to be addressed or required clarification. 
In response to Federal review of the proposed State Plan, supplemental 
assurances, and revisions, corrections and additions to

[[Page 33191]]

the Plan were submitted on April 8, 2009 and May 15, 2009. Further 
modifications were submitted by the State on June 8, 2009. The revised 
IDOL/SIED Plan has been found to be conceptually approvable as a 
developmental State Plan.
    The Act provides for funding of up to 50% of the State Plan costs, 
but longstanding language in OSHA's appropriation legislation further 
provides that OSHA must fund ``* * * no less than 50% of the costs 
required to be incurred'' by an approved State Plan. Such Federal funds 
to support the State Plan must be available prior to State Plan 
approval. The Omnibus Appropriations Act for Fiscal Year 2009 includes 
$1.5 million in additional OSHA State Plan grant funds to allow for 
Department of Labor approval of an Illinois State Plan.
    After an opportunity for public comment and a hearing, should one 
be requested, the Assistant Secretary of Labor will approve the 
Illinois Public Employee Only State Plan if it is determined that the 
Plan meets the criteria set forth in the Occupational Safety and Health 
Act of 1970 and applicable regulations at 29 CFR Part 1956, Subpart B. 
The approval of a State Plan for public employees in Illinois is not a 
significant regulatory action as defined in Executive Order 12866.

C. Description of the Illinois State Plan

    The Plan designates the Illinois Department of Labor as the State 
agency responsible for administering the Plan throughout the State. 
Under the Plan's legislation, the Illinois Safety Inspection and 
Education Act [820 ILCS 220] and the Illinois Health and Safety Act 
[820 ILCS 225], the Illinois Department of Labor has full authority to 
adopt standards and regulations and enforce and administer all laws and 
rules protecting the safety and health of employees of the State and 
its political subdivisions. Illinois has adopted State standards 
identical to Federal occupational safety and health standards as 
promulgated through September 30, 2005. The State Plan includes a 
commitment to update all standards within one year after Plan approval. 
The Plan also provides that future OSHA standards and revisions will be 
adopted by the State within six months of Federal promulgation (30 days 
for any emergency temporary standard) in accordance with the 
requirements at 29 CFR 1953.5.
    Section 4.2 of the Illinois Health and Safety Act [820 ILCS 225] 
includes provisions for the granting of permanent and temporary 
variances from State standards to public employers in terms 
substantially similar to the variance provisions contained in the 
Federal Act. The State provisions require employee notification of 
variance applications as well as employee rights to participate in 
hearings held on variance applications. Variances may not be granted 
unless it is established that adequate protection is afforded employees 
under the terms of the variance.
    Sections 2 and 2.1 of the Illinois Safety Inspection and Education 
Act (SIEA) [820 ILCS 220] provide for inspections of covered 
workplaces, including inspections in response to employee complaints. 
If a determination is made that an employee complaint does not warrant 
an inspection, the complainant will be notified in writing of such 
determination. Additionally, Section 2 of the SIEA provides the 
opportunity for employer and employee representatives to accompany an 
inspector during an inspection for the purpose of aiding in the 
inspection.
    The Plan provides for notification to employees of their 
protections and obligations under the Plan by such means as a State 
poster, required posting of notices of violation, etc. Section 2.2 of 
the Illinois Safety Inspection and Education Act provides for 
protection of employees against discharge or discrimination resulting 
from exercise of their rights under the State Acts in terms essentially 
identical to section 11(c) of the Federal Act. The Plan also 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.
    Although Section 2.3 of the SIEA contains authority for a system of 
first-instance monetary penalties, in practice it is the State's intent 
to issue monetary penalties only for failure to correct and egregious 
violations. The State has discretionary authority for civil penalties 
of not more than $10,000 for repeat and willful violations. Serious and 
other-than-serious violations may be assessed a penalty of up to $1,000 
per violation and failure-to-correct violations may be assessed a 
penalty of up to $1,000 per violation per day. In addition, any public 
employer who willfully violates any standard, rule, or order can be 
charged by the Attorney General with a Class 4 felony if that violation 
causes death to any employee. The Plan provides a scheme of enforcement 
for compelling compliance under which public employers are issued 
citations for any violation of standards. These citations must describe 
the nature of the violation, including reference to the standard, and 
fix a reasonable time for abatement. The Illinois Plan does not include 
an independent review authority for review of contested cases. Although 
the Director has statutory responsibility for both the enforcement and 
the appeals process, in practice, Administrative Law Judges hear 
contested cases without any oversight or review by the Director. The 
State will make appropriate changes to its regulations and procedures 
to ensure the separation of these functions and the independence of the 
adjudicatory process. The Director of Labor will remain responsible for 
the enforcement process, including the issuance of citations and 
penalties, and their defense, if contested. Public employers or their 
representatives who receive a citation or a proposed penalty may within 
15 working days contest the citation, proposed penalty and/or abatement 
period and request a hearing before an Administrative Law Judge (ALJ) 
on behalf of the Director. Any public employee or representative may 
within 15 working days request a hearing before an ALJ regarding the 
reasonableness of the abatement period. Informal review prior to 
contest may also be requested at the division level. The ALJ's decision 
is subject to appeal to the courts.
    The State has a currently authorized staff of eight safety and 
three health compliance officers who, in addition to inspections, also 
perform duties equivalent to OSHA's on-site consultation program. The 
Illinois Department of Commerce and Economic Development delivers 
OSHA's On-Site Consultation program to private sector employers 
throughout the State. The Plan provides assurances that within three 
years no staff will have dual roles, and the State will have a fully 
trained, adequate staff, of eleven safety and three health compliance 
officers for enforcement inspections, and three safety and two health 
consultants to perform consultation services in the public sector. As 
new staff members are hired they will perform either enforcement or 
consultation functions. 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 complicated 
formula used to derive benchmarks for complete private/public sector 
Plans, is not intended, nor is it

[[Page 33192]]

appropriate, for application to the staffing needs of public employee 
only Plans. However, the State 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%) to support the Plan and is requesting initial Federal 
funding of $1,500,000 for a total initial program effort of $3 million.
    Although the State Acts set forth the general authority and scope 
for implementing the Illinois Public Employee Plan, the Plan is 
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. The Plan sets forth 
a timetable for the accomplishment of these and other developmental 
goals within three years of Plan approval. This timetable addresses 
such general areas as the adoption of standards and the revision of 
regulations governing enforcement, consultation, variances, contested 
cases, employee access to information, and recordkeeping. Other 
developmental aspects include hiring and training of staff, 
participation in OSHA's management information system, development of a 
Field Operations Manual and all other implementing policies, procedures 
and instruction necessary for the operation of an effective program. 
The State has extensively revised its initial State Plan submission to 
address a number of issues which were raised during the course of 
Federal review of the Illinois Plan and that required further 
clarification from the State.

D. Request for Public Comment and Opportunity To Request Hearing

    Public comment on the Illinois Public Employee Only State Plan is 
hereby requested. Interested persons are invited 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 10, 
2009. Written submissions must clearly identify the issues that are 
addressed and the positions taken with respect to each issue. The State 
of Illinois will be afforded the opportunity to respond to each 
submission. The Illinois Department of Labor must also publish 
appropriate notice within the State of Illinois within 5 days of 
publication of this notice, announcing OSHA's proposal to approve an 
Illinois State Plan for Public Employees Only, contingent on the 
availability of appropriated funds, and giving notice of the 
opportunity for public comment.
    Pursuant to 29 CFR 1902.39(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 10, 2009 and 
may be submitted electronically, by facsimile, or by regular mail, hand 
delivery, express mail, messenger or courier service, as indicated 
under ADDRESSES above. Such requests must present particularized 
written objections to the proposed initial State Plan approval. The 
Assistant Secretary will decide within 30 days of the last day for 
filing written views or comments and requests for a hearing whether the 
objections raised are substantial and, if so, will publish notice of 
the time and place of the scheduled hearing.
    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 in the Federal Register. All 
written and oral submissions, as well as other information gathered by 
OSHA, will be considered in any action taken. The record of this 
proceeding, including written comments and requests for hearing, and 
all materials submitted in response to this notice and at any 
subsequent hearing, are available at http://www.regulations.gov or the 
OSHA Docket Office at the address above.

E. 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 
Illinois 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, but is limited to the 
State and its political subdivisions. Moreover, the Illinois Safety 
Inspection and Education Act has been in effect since 1961 and the 
Illinois Health and Safety Act has been in effect since 1936, when the 
State first established a safety and health program. Since 1985, the 
Illinois program for public employees has been in operation under the 
Illinois Department of Labor with State funding and most public sector 
employers in the State, including small units of local government, have 
been subject to its terms. 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 public sector employers as a result of Federal approval of 
the Plan.

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 Illinois 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 Illinois initial approval decision 
proposed today, and believes it is consistent with the principles and 
criteria set forth in the Executive Order.

G. Authority and Signature

    This document was prepared under the direction of Jordan Barab, 
Acting Assistant Secretary of Labor for Occupational Safety and Health. 
It is issued under Section 18 of the Occupational Safety and Health Act 
of 1970 (29 U.S.C. 667), 29 CFR Parts 1956 and 1902, and Secretary of 
Labor's Order No. 5-2007 (72 FR 31160).

    Signed at Washington, DC, this 7th day of July 2009.
Jordan Barab,
Acting Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. E9-16379 Filed 7-9-09; 8:45 am]
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