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, 33189-33192 [E9-16379]
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Federal Register / Vol. 74, No. 131 / Friday, July 10, 2009 / Proposed Rules
LCL1 = EPS − ts x1
BILLING CODE 6450–01–P
[ 4a ]
LCL1 = 97.5 EPS
[FR Doc. E9–15881 Filed 7–9–09; 8:45 am]
[4b]
erowe on DSK5CLS3C1PROD with PROPOSALS-1
or
(whichever is greater)
(2) For an energy use standard, compute
the upper control limit (UCL1) according to:
1 Provide specific equipment information
including, for each basic model, the product class,
the manufacturer’s model number(s), and the other
information required in 431.371(a)(6)(i).
2 Provide manufacturer’s model number(s).
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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
E:\FR\FM\10JYP1.SGM
10JYP1
EP10JY09.005</MATH>
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
https://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
EP10JY09.006</MATH>
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.
EP10JY09.004</MATH>
(e)(1) For an energy efficiency standard,
compute the lower control limit (LCL1)
according to:
[Docket No. OSHA–2009–0010]
EP10JY09.003</MATH>
)
29 CFR Part 1956
EP10JY09.002</MATH>
∑(
Occupational Safety and Health
Administration
EP10JY09.001</MATH>
∑
DEPARTMENT OF LABOR
EP10JY09.000</MATH>
Telephone Number: lllllllllll
UCL1 = EPS + ts x1
[5a ]
Facsimile Number: llllllllllll
or
For Existing, New, or Modified Models: 1
For Discontinued Models: 2
Submit by Certified Mail to: U.S.
UCL1 = 1.025 EPS
[5b]
Department of Energy, Building Technologies
Program, Mailstop EE–2J, 1000 Independence (whichever is less)
Where EPS is the energy performance
Avenue, SW., Washington, DC 20585–0121.
standard, and t is a statistic based on a 99
Appendix C to Subpart T of Part 431—
percent, one-sided confidence limit and a
Enforcement for Performance Standards;
sample size of n1.
Compliance Determination Procedure for
(f)(1) Compare the sample mean to the
Certain Commercial Equipment
control limit. The basic model is in
The Department will determine
compliance and testing is at an end if, for an
compliance as follows:
(a) After it has determined the sample size, energy efficiency standard, the sample mean
is equal to or greater than the lower control
the Department will measure the energy
performance for each unit in accordance with limit or, for an energy consumption standard,
the sample mean is equal to or less than the
the following table:
upper control limit. If, for an energy
efficiency standard, the sample mean is less
Number of tests for
Sample size
each unit
than the lower control limit or, for an energy
consumption standard, the sample mean is
4
1
greater than the upper control limit,
3
1
compliance has not been demonstrated.
2
2
Unless the manufacturer requests
1
4
manufacturer-option testing and provides the
additional units for such testing, the basic
(b) Compute the mean of the measured
model is in noncompliance and the testing is
energy performance (x1) for all tests as
at an end.
follows:
(2) If the manufacturer does request
additional testing, and provides the
n1
⎫
1 ⎧
necessary additional units, DOE will test
x1 = ⎨ x i ⎬
[1]
each unit the same number of times it tested
n1 ⎩ i =1 ⎭
previous units. DOE will then compute a
Where xi is the measured energy efficiency combined sample mean, standard deviation,
or consumption from test i, and n1 is the total
and standard error as described above. (The
number of tests.
‘‘combined sample’’ refers to the units DOE
(c) Compute the standard deviation (S1) of
the measured energy performance from the n1 initially tested plus the additional units DOE
has tested at the manufacturer’s request.)
tests as follows:
DOE will determine compliance or
noncompliance from the mean and the new
n1
2
lower or upper control limit of the combined
x i − x1
sample. If, for an energy efficiency standard,
i =1
S1 =
[2]
the combined sample mean is equal to or
n1 − 1
greater than the new lower control limit or,
for an energy consumption standard, the
(d) Compute the standard error (Sx1) of the
sample mean is equal to or less than the
measured energy performance from the n1
upper control limit, the basic model is in
tests as follows:
compliance, and testing is at an end. If the
combined sample mean does not satisfy one
S1
Sx1 =
[3]
of these two conditions, the basic model is
n1
in noncompliance.
33189
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33190
Federal Register / Vol. 74, No. 131 / Friday, July 10, 2009 / Proposed Rules
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 https://
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 https://www.regulations.gov
or to the OSHA Docket Office at the
address above. Documents in the docket
are listed in the https://
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 https://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 https://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,
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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
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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
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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
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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 firstinstance 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
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33191
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
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Federal Register / Vol. 74, No. 131 / Friday, July 10, 2009 / Proposed Rules
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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
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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
https://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
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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]
BILLING CODE 4510–26–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 59
RIN 2900–AM70
Grants to States for Construction or
Acquisition of State Home Facilities—
Update of Authorized Beds
Department of Veterans Affairs.
Proposed rule.
AGENCY:
ACTION:
SUMMARY: The Department of Veterans
Affairs (VA) proposes to amend its
regulations regarding grants to States for
construction or acquisition of State
homes to update the maximum number
of nursing home and domiciliary beds
designated for each State and to amend
the definition of ‘‘State’’ for purposes of
these grants to include Guam, the
E:\FR\FM\10JYP1.SGM
10JYP1
]]>Agencies
[Federal Register Volume 74, Number 131 (Friday, July 10, 2009)]
[Proposed Rules]
[Pages 33189-33192]
From the Federal Register Online via the Government Printing 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 https://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 https://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 https://www.regulations.gov or to the OSHA Docket Office
at the address above. Documents in the docket are listed in the https://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 https://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 https://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 https://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]
BILLING CODE 4510-26-P
