Massachusetts State Plan for State and Local Government Employers; Initial Approval Determination, 50766-50776 [2022-17803]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 87, Number 159 (Thursday, August 18, 2022)]
[Rules and Regulations]
[Pages 50766-50776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17803]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1956

[Docket No. OSHA-0022-0008]
RIN 1218-AD41


Massachusetts State Plan for State and Local Government 
Employers; Initial Approval Determination

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

ACTION: Final rule.

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SUMMARY: The Massachusetts State and Local Government Only State Plan, 
a State occupational safety and health, applicable only to 
Massachusetts State and local Government employees (workers of the 
State and its political subdivisions), is approved as a developmental 
plan under the Occupational Safety and Health Act of 1970 and OSHA 
regulations. OSHA's decision to grant the Massachusetts State Plan 
initial approval is based on its determination that the Massachusetts 
State Plan meets, or will meet within three years, OSHA's State Plan 
approval criteria, and that Massachusetts has provided adequate 
assurances that it will be at least as effective as Federal OSHA in 
protecting the safety and health of Massachusetts State and local 
Government workers. The Massachusetts State Plan is eligible to receive 
funding from the Department of Labor's Fiscal Year 2022 budget.

DATES: This final rule is effective August 18, 2022.

FOR FURTHER INFORMATION CONTACT: For press inquiries: Contact Francis 
Meilinger, Director, Office of Communications, U.S. Department of 
Labor; telephone (202) 693-1999; email [email protected].
    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: 
[email protected].
    Copies of this Federal Register document and news releases: Copies 
of this Federal Register document and other documents referenced herein 
are available at www.regulations.gov, the Federal eRulemaking Portal, 
in Docket No. OSHA-2022-0008. Electronic copies of this document, as 
well as news releases and other relevant information, are also 
available at OSHA's web page at: www.osha.gov.

[[Page 50767]]

    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. For example, the full Document ID number 
for the Massachusetts State Plan narrative, which describes the 
Massachusetts State Plan, is Document ID OSHA-2022-0008-0048.\1\ OSHA 
will identify this comment, and other comments in the rulemaking, by 
the term ``Document ID'' followed by the comment's unique four-digit 
code (e.g., as to the Massachusetts State Plan narrative, Document ID 
0048).
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    \1\ The Appendices referenced in the Massachusetts State Plan 
narrative are also included in the Docket as supporting and related 
materials.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 18 of the OSH Act, 29 U.S.C. 667, provides that a State 
which desires to assume responsibility for the development and 
enforcement of standards relating to any occupational safety and health 
issue with respect to a Federal standard which has been promulgated may 
submit a State Plan to the Assistant Secretary of Labor for 
Occupational Safety and Health (Assistant Secretary) documenting the 
proposed program in detail. State and local Government employers are 
excluded from Federal OSHA coverage under the Act (29 U.S.C. 652(5)). 
However, a State may submit a State Plan for the development and 
enforcement of occupational safety and health standards applicable only 
to employers and employees of the State and its political subdivisions 
(i.e., State and local Government employers and employees) (29 CFR 
1956.1). The Assistant Secretary will approve a State Plan applicable 
only to State and local Government employers and employees (State and 
local Government State Plan) if the Plan provides for the development 
and enforcement of standards relating to hazards in employment covered 
by the Plan which are or will be at least as effective in providing 
safe and healthful employment and places of employment as standards 
promulgated and enforced under Section 6 of the OSH Act, giving due 
consideration to differences between State and local Government and 
private sector employment (29 U.S.C. 667(c); 29 CFR 1956.2(a)). In 
making this determination, the Assistant Secretary will measure the 
State Plan against the criteria and indices of effectiveness set forth 
in 29 CFR part 1956.10 and 1956.11 (29 CFR 1956.2(a)). A State and 
local Government State Plan may receive initial approval although it 
does not yet fully meet this criteria, if it includes satisfactory 
assurances by the State that it will take the necessary steps to bring 
the program into conformity with these criteria within the 3-year 
period immediately following the commencement of the State Plan's 
operation (29 CFR 1956.2(b)(1)). In such case, the developmental State 
Plan must include the specific actions (referred to as developmental 
steps) that the State Plan must take and a schedule for their 
accomplishment, not to exceed 3 years. Once a State and local 
Government State Plan has completed the developmental steps, Federal 
OSHA will publish a notification in the Federal Register certifying the 
State Plan's completion of all developmental steps (29 CFR 1956.23; 
1902.33 and 1902.34).
    Section 23(g) of the OSH Act provides for funding of up to 50% of 
the State Plan costs (29 U.S.C. 672(g)). Congress designates specific 
funds for this purpose (see, e.g., FY 2022 Consolidated Appropriations 
Act, H.R. 2471, p. 383 (March 17, 2022)).

II. Massachusetts State Plan History and Events Leading to Initial 
Approval

    The Massachusetts Department of Labor Standards (DLS) has a history 
that traces back to 1912. Although the agency's name has changed 
slightly over time, the mission of the DLS has always included 
promoting and protecting workers' health, safety, and working 
conditions. In 2014, by statute, Massachusetts authorized the DLS to 
provide State workers with at least the level of protection from 
workplace safety and health hazards as protections provided under the 
OSH Act by Federal OSHA (M.G.L. c. 149, 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.
    In Fiscal Year 2022, Congress increased the funds available for 
State Plans. The Fiscal Year 2022 Omnibus Appropriations Act includes 
$1,250,000 in State Plan grant funds for the Massachusetts State Plan.
    On June 30, 2022, OSHA published a notice in the Federal Register 
proposing to grant the Massachusetts State Plan initial approval as a 
State and local Government State Plan under section 18 of the OSH Act 
(29 U.S.C. 667) (87 FR 39033). In the proposal, OSHA indicated that it 
had preliminarily found the Massachusetts State Plan to be conceptually 
approvable as a developmental State Plan. The proposal also included a 
request for interested persons to submit public comment and to request 
an informal hearing concerning the proposed initial State Plan 
approval. OSHA received seven comments in response, and, as discussed 
below, all seven comments strongly supported OSHA's proposal. OSHA did 
not receive any requests for an informal hearing.

III. Summary of Comments Received

    OSHA received seven comments from interested persons in response to 
its June 30, 2022, proposal and request for public comment. As 
previously noted, all seven comments may be viewed in the rulemaking 
docket at www.regulations.gov, under Docket No. OSHA-2022-0008.
    All seven comments strongly support OSHA's initial approval of the 
Massachusetts State Plan. The Occupational Safety and Health State Plan 
Association (OSHSPA), which ``is an organization of twenty-eight (28) 
State Plans and U.S. Territories that have OSHA-approved State Plans,'' 
submitted a comment expressing strong support for OSHA's proposal to 
grant initial approval to the Massachusetts State Plan in order to 
``ensure approximately 434,000 public sector workers in Massachusetts 
are afforded occupational safety and health protections that OSHA 
cannot provide'' (Document ID 0052). Another commenter, on behalf of 
United Support and Memorial for Workplace Fatalities, also expressed 
strong support (Document ID 0055).
    The other five comments received were nearly identical to one 
another. These comments were received from the Massachusetts Coalition 
for Occupational Safety and Health (MassCOSH) (Document ID 0049), Dr. 
Leslie I. Boden, professor of Public Health at Boston University 
(Document ID 0050), SEIU Local 888 (Document ID 0051); Massachusetts 
AFL-CIO (Document ID 0054), and Teamsters

[[Page 50768]]

Local Union No. 25 (Document ID 0056). All five of these comments 
``emphatically support'' OSHA's proposal to grant initial approval. 
They also raised identical specific concerns about terms of the 
proposed Massachusetts State Plan, regarding Massachusetts' regulations 
applicable to the Massachusetts State Plan that address advance notice 
of inspections, anti-retaliation, and Massachusetts' adoption of new 
OSHA standards and Emergency Temporary Standards. These five 
commenters' specific concerns are addressed below, in conjunction with 
OSHA's findings regarding the Massachusetts State Plan's compliance 
with the criteria and indices of effectiveness for State and local 
Government State Plans set forth in OSHA's regulations.

IV. Findings

    As previously discussed, in order to grant initial approval to a 
State Plan for State and local Government, OSHA must determine whether 
the State Plan provides for the development and enforcement of 
standards relating to hazards in employment covered by the Plan which 
are or will be at least as effective in providing safe and healthful 
employment and places of employment as standards promulgated and 
enforced under Section 6 of the OSH Act, giving due consideration to 
differences between State and local Government and private sector 
employment (29 U.S.C. 667(c); 29 CFR 1956.2(a)). To make this 
determination, the Assistant Secretary measures the State Plan against 
the criteria in 29 CFR 1956.10 and the indices of effectiveness in 29 
CFR 1956.11 (29 CFR 1956.2(a)).
    OSHA has evaluated the Massachusetts State Plan against the 
criteria and indices of effectiveness in OSHA's regulations and finds 
that the Massachusetts State Plan meets these criteria, or will meet 
these criteria within the three-year period immediately following the 
commencement of the State Plan's operation, as permitted by 29 CFR 
1956.2(b)(1). OSHA's specific findings and conclusions with regard to 
these criteria and indices of effectiveness are discussed below.
    OSHA's findings are based primarily on information about the 
Massachusetts State Plan that is included in the Massachusetts State 
Plan narrative (Document ID 0048), and on the Appendices referenced in 
the Massachusetts State Plan narrative that OSHA has also included in 
the rulemaking docket. And OSHA reviewed and carefully considered the 
seven public comments received in reaching its determinations regarding 
the Massachusetts State Plan.

A. Designated Agency

    Section 18(c)(1) of the OSH Act provides that a State occupational 
safety and health program must designate a State agency or agencies 
responsible for administering the Plan throughout the State (29 U.S.C. 
667(c)(1); see also 29 CFR 1956.10(b)(1)). The State Plan must describe 
the authority and responsibilities of the designated agency and provide 
assurance that other responsibilities of the agency will not detract 
from its responsibilities under the Plan (29 CFR 1956.10(b)(2)).
    The DLS is designated as the State agency responsible for the 
development and enforcement of occupational safety and health standards 
applicable to State and local Government employment throughout the 
State. Workplace Safety and Health Program (WSHP) is the sub-agency 
responsible for administering the Massachusetts State Plan. The 
Massachusetts State Plan narrative describes the authority of the 
Massachusetts DLS and its other responsibilities (Document ID 0048, pp. 
9-10).

B. Scope

    Section 18(c)(6) of the OSH Act provides that a State Plan, to the 
extent permitted by its law, must establish and maintain an effective 
and comprehensive occupational safety and health program applicable to 
all employees of the State and its political subdivisions (29 U.S.C. 
667(c)(6)). A State Plan may only exclude certain political subdivision 
employees from coverage if the State is constitutionally precluded from 
regulating occupational safety and health conditions for such political 
subdivision (29 CFR 1956.2(c)(1)). Further, the State may not exclude 
any occupational, industrial or hazard grouping from coverage under its 
Plan unless OSHA finds that the State has shown there is no necessity 
for such coverage (29 CFR 1956.2(c)(2)).
    The Massachusetts State Plan covers State and local Government 
employees throughout the State. M.G.L. c. 149, Sec.  6\1/2\ defines 
``public employees'' as ``individuals employed by a public employer.'' 
``Public employers,'' as defined by M.G.L. c. 149, Sec.  6\1/2\, 
include ``any agency, executive office, department, board, commission, 
bureau, division, or authority of the commonwealth or of any political 
subdivision of the commonwealth [that is, city, town, county], any 
quasi-public independent entity and any authority or body politic and 
corporate established by the general court [Legislature] to serve a 
public purpose.'' Volunteers under the direction of a public employer 
or other public corporation or political subdivision are also covered. 
The definition of public employee does not include students (except 
when employed or vocational/technical students when performing field 
work), or those incarcerated or involuntarily/voluntarily committed in 
public institutions (Document ID 0048, pp. 6-9).
    Consequently, OSHA finds that the Massachusetts State Plan contains 
satisfactory assurances that no employees of the State and its 
political subdivisions are excluded from coverage, and the Plan 
excludes no occupational, industrial, or hazard grouping.

C. Standards and Federal Program Changes

    Section 18(c)(2) of the OSH Act requires State Plans to provide for 
the development and enforcement of occupational safety and health 
standards which are at least as effective as Federal OSHA standards 
that relate to the same issues (29 U.S.C. 667(c)(2)). A State Plan for 
State and local Government must provide for the development or adoption 
of such standards and must contain assurances that the State will 
continue to develop or adopt such standards (29 CFR 1956.10(c); 
1956.11(b)(2)(ii)). A State may establish the same standards, 
procedures, criteria, and rules as Federal OSHA (29 CFR 1956.11(a)(1)), 
or alternative standards, procedures, criteria, and rules that are at 
least as effective as those of Federal OSHA (29 CFR 1956.11(a)(2)). 
Among other requirements, State standards that deal with toxic 
materials or harmful physical agents, must adequately assure, to the 
extent feasible, that no employee will suffer material impairment of 
health or functional capacity, even if such employee has regular 
exposure to the regulated hazard throughout the employee's working life 
(29 CFR 1956.11(b)(2)(i)). Where a State's standards are not identical 
to Federal OSHA's, they must be promulgated through a procedure 
allowing for consideration of all pertinent factual information and 
participation of all interested persons (29 CFR 1956.11(b)(2)(iii)). 
The State Plan must provide for prompt and effective standards setting 
actions for protection of employees against new and unforeseen hazards, 
by such means as the authority to promulgate emergency temporary 
standards (29 CFR 1956.11(b)(2)(v)). State standards must provide for 
furnishing employees

[[Page 50769]]

appropriate information regarding hazards in the workplace through 
labels, posting, medical examinations, etc. (29 CFR 1956.11(b)(2)(vi)). 
They must require suitable protective equipment and technological 
procedures with respect to regulated hazards, including monitoring or 
measuring exposure, where appropriate (29 CFR 1956.11(b)(2)(vii)). 
M.G.L. c. 149, Sec. Sec.  6 and 6\1/2\ authorize the DLS to investigate 
and issue fines to places of public employment. M.G.L. c. 149, Sec.  
6\1/2\ includes the requirement that ``Public employers shall provide 
public employees at least the level of protection provided under the 
federal Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et 
seq., including standards and provisions of the general duty clause 
contained in 29 U.S.C. 654.'' Massachusetts promulgated regulations 
pursuant to M.G.L. c. 149, Sec.  6\1/2\. Those regulations include 454 
CMR 25.00 and 29.00, which were promulgated and/or amended according to 
M.G.L. c. 30A, Sec.  1 et seq., the Massachusetts State Administrative 
Procedure Act (State APA). 454 CMR 25.00 incorporates the standards set 
forth under the OSH Act, 29 U.S.C. 651 et seq., including the General 
Duty Clause, and regulations, 29 CFR parts 1903, 1904, 1910, 1915, 
1917, 1918, 1926, 1928, and 1977, and applies them to Massachusetts 
places of State and local Government employment. 454 CMR 29.00 provides 
the procedures for issuing civil penalties and hearing appeals 
(Document ID 0048, p. 10).
    M.G.L. c. 149, Sec.  6\1/2\ created the Occupational Health and 
Safety Hazard Advisory Board (Advisory Board), whose members are 
appointed by the Governor. The Advisory Board evaluates injury and 
illness data, recommends training and implementation of safety and 
health measures, and monitors the effectiveness of safety and health 
programs to determine where additional resources are needed to protect 
the safety and health of State and local Government employees. The DLS 
consults with the Advisory Board prior to promulgating occupational 
safety and health regulations and adopting regulations promulgated by 
OSHA, pursuant to M.G.L. c. 149, Sec.  6\1/2\(d) (Document ID 0048, pp. 
10-11).
    In all rulemaking, the DLS follows its State APA and 950 CMR 20.00 
(PREPARING AND FILING REGULATIONS). Prior to the adoption, amendment, 
or repeal of any regulation where the violation of the regulation is 
punishable by fine or imprisonment, except for emergency temporary 
standards, the DLS must provide notice and hold a public hearing where 
any interested persons, data, views, arguments, or comments either 
orally, in writing, or both, shall be accepted for consideration. The 
DLS has provided assurances that it will complete this process to adopt 
all Federal occupational safety and health standards not promulgated as 
emergency temporary standards, within six months, as required by OSHA 
regulation (Document ID 0048, p. 11).
    When the DLS promulgated 454 CMR 25.02, it incorporated the 
following phrase, ``All current and updated regulations and references 
at 29 CFR parts 1903, 1904, 1910, 1915, 1917, 1918, 1926, 1928 and 1977 
are incorporated by reference, and applicable to all places of 
employment covered by 454 CMR 25.00'' with the intent of automatically 
adopting any future changes of revisions of the Federal OSHA standards. 
However, this method of adopting standards is prohibited by the State 
APA. Therefore, the DLS, as a developmental step, will amend 454 CMR 
25.00 to remove this phrase and clarify its rulemaking process with 
respect to the adoption of Federal OSHA standards (Document ID 0048, p. 
11).
    In addition, consistent with 29 CFR 1953.4(b), Massachusetts has 
provided assurances that it will timely adopt and/or implement all 
other Federal Program Changes, or an at least as effective alternative, 
whenever OSHA designates such Federal Program Changes to be ``adoption 
required'' or ``equivalency required.'' This includes the adoption of 
all Federal Directives designated as ``adoption required'' or 
``equivalency required'' by OSHA, or an at least as effective 
alternative (Document ID 0048, p.11).
    The DLS has the authority under M.G.L. c. 149, Sec.  6\1/2\ to 
adopt alternative or different occupational health and safety standards 
where no Federal standards are applicable to the conditions or 
circumstances or where standards that are more stringent than the 
Federal are deemed advisable. New or modified standards may be 
requested through research and experience during inspections, a 
recommendation from the Advisory Board, and an interested person. Prior 
to the development and promulgation of new standards or the 
modification or revocation of existing standards, the DLS would 
consider input from the Advisory Board, per M.G.L. c. 149, Sec.  6\1/
2\(d), experts with technical knowledge, and submissions from 
interested persons, and provide the opportunity for interested persons 
to participate in any hearing. To be considered by the Advisory Board, 
new or modified standards are required to be more protective of 
employees than existing OSHA standards, or to address issues for which 
there is no existing OSHA standard (Document ID 0048, p. 12).
    The DLS has the authority to adopt emergency temporary standards 
where State and local Government employees may be exposed to unique 
hazards for which existing standards do not provide adequate protection 
for the preservation of their health or safety. Emergency rulemaking 
procedures are in the State APA at M.G.L. c. 30A, Sec.  2, 3, & 6 and 
950 CMR 20.05. An emergency is defined in the State APA as the 
existence of a situation where it is necessary to adopt, amend, or 
repeal a regulation for the preservation of the public health, safety, 
or general welfare immediately, and where the observance of the 
requirements of notice and a public hearing would be contrary to the 
public interest. The DLS's finding of an emergency and a brief 
statement of the reasons for its finding shall be incorporated in the 
emergency regulation as filed with the State Secretary.
    With regard to Federal occupational safety and health standards 
promulgated as emergency temporary standards, if OSHA promulgates an 
emergency temporary standard, Massachusetts has provided assurances 
that the DLS will, and has the authority to, adopt and rely on OSHA's 
findings of grave danger and reasonable necessity, and that such 
reliance on Federal OSHA's findings will be sufficient to satisfy the 
requirements of the State APA. The DLS would file emergency regulations 
within 30 days of the Federal promulgation date unless an existing 
State standard is deemed to be at least as effective, following the 
emergency rulemaking procedures as outlined in the State APA at M.G.L. 
c. 30A, Sec. Sec.  2, 3, & 6, and 950 CMR 20.05(2). An emergency 
regulation becomes effective immediately when filed or such later time 
as specified therein, per M.G.L. c. 30A, Sec.  6 (Document ID 0048, pp. 
12-14).
    Per the State APA, and as described at 950 CMR 20.05(2), such 
emergency temporary regulations may only remain in effect no longer 
than three months from the date filed with the State Secretary or until 
superseded by a permanent regulation. During the three months covered 
by the emergency regulation, the DLS has provided assurances that it 
would proceed with the rulemaking process as described in 950 CMR 
20.05(2)(a) through (c) to adopt the ETS for a period equal to or 
exceeding Federal OSHA's ETS, and that it would make an emergency 
temporary standard permanent within

[[Page 50770]]

three months of its effective date pursuant to 950 CMR 20.05(2)(a) 
through (c), provided that the Federal emergency temporary standard 
remains in effect (Document ID 0048, pp. 12-13).
    As previously discussed, five commenters provided nearly identical 
public comments in support of OSHA's proposal to grant the 
Massachusetts State Plan initial approval. These five commenters also 
expressed concerns regarding the Massachusetts rulemaking process, and 
particularly regarding Massachusetts' recent decision not to adopt 
OSHA's COVID-19 Healthcare Emergency Temporary Standard (COVID-19 
Healthcare ETS) (Document ID 0049; 0050; 0051; 0054; 0056). 
Additionally, they expressed concerns that the State APA only permits a 
Massachusetts emergency temporary standard to remain in effect for 
three months, whereas the commenters state that the OSH Act 
contemplates an emergency temporary standard to remain effective until 
superseded by a permanent standard, ``a process contemplated by the OSH 
Act to occur within 6 months of the [Emergency Temporary Standard's] 
promulgation.''
    OSHA appreciates these commenters' perspective. It is true that 
Massachusetts did not adopt OSHA's COVID Healthcare ETS. However, the 
agency does not find that Massachusetts' failure to adopt that ETS 
suggests a deficiency in the State Plan because Massachusetts also did 
not have an OSHA-approved State Plan when the COVID Healthcare ETS was 
published in 2021, and thus was not required by the OSH Act to have and 
enforce standards that were at least as effective as Federal OSHA at 
that time. Moreover, OSHA specifically consulted with the DLS regarding 
Massachusetts' decision not to adopt OSHA's COVID-19 Healthcare ETS, 
and Massachusetts made assurances, discussed above, that it will timely 
adopt all Federal standards promulgated in the future, including any 
future emergency temporary standards, and that it will adopt a 
permanent standard that is at least as effective as a Federal emergency 
temporary standard, within the three-month timeframe that the State APA 
permits emergency regulations in Massachusetts to remain in effect. 
OSHA notes that State Plans' statutory and regulatory requirements for 
adopting Federal OSHA standards vary considerably by State. OSHA will 
continue to monitor Massachusetts' ability to timely adopt Federal 
standards, including emergency temporary standards, if promulgated, 
including during the three-year developmental period following OSHA's 
grant of initial approval to the Massachusetts State Plan and prior to 
certifying the State Plan's completion of all developmental steps in 
accordance with 29 CFR 1956.23, 1902.33, and 1902.34.
    Based on the preceding Plan provisions, assurances, and 
commitments, OSHA finds the Massachusetts State Plan to have met the 
statutory and regulatory requirements for initial plan approval with 
respect to adoption of occupational safety and health standards and 
Federal Program Changes.

D. Variances

    A State Plan must have authority to grant variances from State 
standards upon application of a public employer or employers which 
corresponds with Federal OSHA's authority under sections 6(b)(6) and 
6(d) of the OSH Act (29 U.S.C. 655(b)(6) and (d); 29 CFR 
1956.11(b)(2)(iv). Such authority must include provisions for the 
consideration of views of interested parties, by such means as giving 
affected employees notice of each application and an opportunity to 
request and participate in hearings or other appropriate proceedings 
relating to variance applications (29 CFR 1956.11(b)(2)(iv)).
    Per 454 CMR 25.05(6), variances may be granted when, ``The 
Director, on the record, after notice, an inspection when warranted, 
and an opportunity for a hearing may provide such reasonable 
limitations and may make such rules and regulations allowing reasonable 
variations, tolerances, and exemptions to and from any or all 
provisions of 454 CMR 25.00 as found necessary and proper. Such action 
shall not be in effect for more than six months without notification to 
affected employees and an opportunity being afforded for a hearing.'' 
The DLS has provided assurances that variances may not be granted 
unless it is established that adequate protection is afforded to 
employees under the terms of the variance. However, current DLS 
provisions for granting variances, found at 454 CMR 25.05(6), are 
inconsistent with OSHA's permanent variance procedure. Therefore, 
during its developmental period, Massachusetts has provided assurances 
that it intends to complete the developmental step of amending 454 CMR 
25.05 to modify its variance requirements to become consistent with 
those in the OSH Act and to adopt OSHA's regulation governing 
variances, 29 CFR 1905 (Document ID 0048, pp. 14-15).
    Accordingly, OSHA finds that the Massachusetts State Plan has 
adequately provided assurances that it will meet the statutory and 
regulatory requirements for initial plan approval with respect to 
variances within the developmental period.

E. Enforcement

    Section 18(c)(2) of the OSH Act requires a State Plan to include 
provisions for enforcement of State standards which are or will be at 
least as effective in providing safe and healthful employment and 
places of employment as the Federal program, and to assure that the 
State's enforcement program for public employees will continue to be at 
least as effective as the Federal program in the private sector (29 
U.S.C. 667(c)(2); see also 29 CFR 1956.10(d)(1)).
1. Legal Authority
    The State Plan must require State and local Government employers to 
comply with all applicable standards, rules and orders and must have 
the legal authority necessary for standards enforcement (29 U.S.C. 
667(c)(4); 29 CFR 1956.10(d)(2), 1956.11(c)(2)(viii)).
    M.G.L. c. 149 Sec.  6\1/2\ requires public employers to, ``provide 
public employees at least the level of protection provided under the 
Federal Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et. 
seq., including standards and provisions of the general duty clause 
contained in 29 U.S.C. 654.'' The DLS, as the designated enforcement 
agency for M.G.L. c. 149 Sec.  6\1/2\, has the authority to inspect 
public sector workplaces pursuant to M.G.L. c. 149, Sec. Sec.  6, 6\1/
2\, 10, 17, and 454 CMR 25.03. According to 454 CMR 25.03(1)(a), the 
DLS has the authority to ``enter without delay'' public sector 
workplaces to conduct inspections. M.G.L. c. 149, Sec. Sec.  6, 6\1/
2\(e), 10, and 17, 454 CMR 25.03 and 25.05(4), as well as the 
Massachusetts Field Operation Manual (MA FOM) \2\ at Chapter 3(IV)(C), 
provide procedures for when an employer refuses entry to the DLS 
inspector. Pursuant to 454 CMR 25.03(c), the DLS may question privately 
any employer, operator, manager, agent or employee. The DLS has the 
authority to review employer records as part of an inspection under 
M.G.L. c. 149 Sec.  17, which states that the DLS, ``. . . shall have 
access to all

[[Page 50771]]

records pertaining to wages, hours, and other conditions of employment 
which are found essential to such investigations.'' This authority is 
also included in 454 CMR 25.03(c) (Document ID 0048, pp. 16-17). 
Additional legal authority of the Massachusetts State Plan related to 
enforcement is discussed below.
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    \2\ Massachusetts has already written and adopted a 
Massachusetts Field Operations Manual (MA FOM) based on Federal 
OSHA's Field Operations Manual (FOM) with some differences to 
reflect differences between the State Plan and Federal OSHA. Federal 
OSHA is currently reviewing the Massachusetts FOM. The DLS has 
provided assurances that, once Federal OSHA's review is complete, it 
will make any updates, as necessary, to ensure that the enforcement 
policies in the MA FOM are at least as effective as Federal OSHA's 
FOM. This commitment is also a developmental step (Document ID 0048, 
p. 29).
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2. Inspections
    A State Plan must provide for the inspection of covered workplaces, 
including in response to complaints, where there are reasonable grounds 
to believe a hazard exists (29 CFR 1956.11(c)(2)(i)). When no 
compliance action results from an inspection of a violation alleged by 
an employee complaint, the State must notify the complainant of its 
decision not to take compliance action by such means as written 
notification and opportunity for informal review (29 CFR 
1956.11(c)(2)(iii)).
    As previously noted, the DLS has the authority to inspect any 
workplace where work is being performed by an employee of a State or 
local Government employer to enforce its occupational safety and health 
standards pursuant to M.G.L. c. 149, Sec. Sec.  6, 6\1/2\, 10 and 17, 
and 454 CMR 25.03 (Document ID 0048, p. 17). The DLS will accept a 
complaint from any source: employees, representatives of employees, or 
members of the public. Complaints may be made in person, by telephone, 
or by email. A complaint form is available on the DLS website. A 
complainant may request that their name not be revealed to the 
employer. While allegations made in the complaint are provided to the 
employer, copies of the complaint form are not regularly provided to 
the employer. However, under court order, the DLS may be required to 
provide the complaint form and the name of the complainant to the State 
or local Government employer. If the DLS determines upon the receipt of 
a complaint that there are reasonable grounds to believe that unsafe or 
unhealthful working conditions exists, an inspector shall be assigned 
to the case to determine if such violation or danger exists per 29 CFR 
1903.11, incorporated at 454 CMR 25.02, and the MA FOM Chapter 9. When 
contact information has been provided, the DLS will inform the 
individual who has made a complaint that an inspection will be 
scheduled and that the individual will be advised of the results. If 
the DLS determines that there are no reasonable grounds to believe that 
a violation or danger exists, the employee or representative of the 
employee who alleged violations will be notified of such determination 
per procedures of the MA FOM Chapter 9, as required in 29 CFR 1903, as 
adopted under 454 CMR 25.00 (Document ID 0048, p. 20).
3. Employee Notice and Participation in Inspection
    In conducting inspections, the State Plan must provide an 
opportunity for employees and their representatives to point out 
possible violations through such means as employee accompaniment or 
interviews with employees (29 CFR 1956.11(c)(2)(iii)). In addition, the 
State Plan must provide that employees be informed of their protections 
and obligations under the OSH Act by such means as the posting of 
notices (29 CFR 1956.11(c)(2)(iv)), and provide that employees have 
access to information on their exposure to regulated agents and access 
to records of the monitoring of their exposure to such agents (29 CFR 
1956.11(c)(2)(vi)).
    During the walkaround inspection, representatives of the employer 
and employees are allowed to accompany the DLS throughout the 
inspection process so long as they do not interfere in the conduct of 
the inspection or present a safety or health hazard as determined in 
the sole discretion of the DLS, pursuant to 454 CMR 25.03(6) (Document 
ID 0048, p. 19).
    Any State or local Government employer who violates any of the 
posting requirements, pursuant to 29 CFR 1903.2 & 1903.16 incorporated 
by 454 CMR 25.02, 454 CMR 25.04, and the MA FOM Chapter 6(X), shall be 
assessed a penalty of not more than $1,000 for each violation pursuant 
to M.G.L. c. 149, Sec.  6 (Document ID 0048, p. 27).
    State and local Government employers in Massachusetts are required 
to maintain accurate records regarding occupational safety and health 
injuries, illnesses, deaths, and exposures to toxic materials, and 
employees and/or employee representatives have the right to access the 
records pursuant to 29 CFR 1904.35(b)(2) and 29 CFR 1910.1020 as 
incorporated by 454 CMR 25.02 and 25.06(1) (Document ID 0048, p. 18).
4. Nondiscrimination Protections
    State Plans must provide necessary and appropriate protection to 
employees against discharge or discrimination for exercising their 
rights under the State program, including by such means as providing 
for employer sanctions and employee confidentiality (29 CFR 
1956.11(c)(2)(v)).
    The DLS has authority to remedy retaliation for a State or local 
Government employee who files a complaint, instituted any proceeding, 
testified, or exercised any rights afforded by 454 CMR 25.00, pursuant 
to 29 CFR 1977 as incorporated at 454 CMR 25.02 and 25.07. Any State or 
local Government employee who believes that they have been discharged 
or otherwise discriminated against in violation of 454 CMR 25.07 and 
incorporated 29 CFR 1977, may within 30 days after the alleged 
violation occurs, file a complaint with the DLS, alleging 
discrimination. The DLS may seek a remedy for an employee who files a 
retaliation complaint for discharge or discrimination within 30 days 
after any alleged violation pursuant to 29 CFR part 1977, in accord 
with 454 CMR 25.07 & 25.02 and the MA FOM Chapter 9(I)(J)(2). 
Massachusetts has also adopted, and will conduct inspections consistent 
with, the OSHA Whistleblower Investigations Manual, CPL 02-03-007. If 
upon investigation, the DLS determines that the provisions of 454 CMR 
25.07 have been violated, an action shall be brought for all 
appropriate relief, including rehiring or reinstatement of the employee 
to their former position with back pay, pursuant to 29 CFR 1977.3 as 
incorporated by 454 CMR 25.02. In addition, the DLS has a fine 
structure that can increase the amount of future fines, up to the 
current maximum of one thousand dollars for each violation, if further 
discrimination were to occur, pursuant to M.G.L. c. 149, Sec.  6, 454 
CMR 25.05(1), 454 CMR 29.04(2)(d), and MA FOM Chapter 9(II) procedures.
    Massachusetts also has a Whistleblower's Protection statute, M.G.L. 
c. 149, Sec.  185, that protects State and local Government employees 
and prohibits retaliation through a right of private civil action. Any 
State or local Government employee or former employee aggrieved of a 
violation of M.G.L. c. 149, Sec.  185 may, within two years, institute 
a civil action in Superior Court. All remedies available in common law 
tort actions shall be available to prevailing plaintiffs, including 
reinstatement and back pay (Document ID 0048, pp. 21-22).
    The five commenters that provided nearly identical public comments 
in support of OSHA's proposal to grant the Massachusetts State Plan 
initial approval also raised concerns that the Massachusetts State 
Plan's adoption of OSHA's regulations at 29 CFR 1977 governing 
Discrimination Against Employees Exercising Rights Under the Williams-
Steiger Occupational Safety and Health Act of 1970 and incorporation of 
these regulations at 454 CMR 25.07 may not provide Massachusetts with 
adequate legal

[[Page 50772]]

authority to investigate and take enforcement action if a State or 
local Government employee believes that they have been discharged or 
otherwise discriminated against in violation of the Massachusetts State 
Plan's regulations Document ID 0049; 0050; 0051; 0054; 0056).
    OSHA's understanding is that Massachusetts adopted 454 CMR 25.07 
and 29 CFR 1977 through the rulemaking process required by the State 
APA, and thus OSHA's understanding, consistent with the Massachusetts 
State Plan's assurances, is that the DLS currently has authority to 
enforce these provisions. OSHA notes that at least one other State and 
local Government State Plan, Maine, has recently similarly adopted 29 
CFR 1977 without issue. However, OSHA agrees that, were a State court 
to determine that the Massachusetts State Plan lacked the authority to 
enforce its anti-retaliatory provisions, this would likely render the 
State Plan less effective than Federal OSHA and necessitate 
Massachusetts making further changes to its statutory or regulatory 
structure, as appropriate, to ensure its continued enforcement 
authority. OSHA will continue to evaluate the Massachusetts State 
Plan's ability to enforce its anti-retaliation provisions under 454 CMR 
25.07 and 29 CFR 1977, as incorporated, including during the three-year 
developmental period following its initial approval.
    In addition, these commenters expressed concerns that the 
Massachusetts State Plan does not include a penalty structure that is 
the equivalent of the punitive damages that may be available for 
violation of the antiretaliatory provisions in section 11(c) of the OSH 
Act (Document ID 0049; 0050; 0051; 0054; 0056). As noted above, 
Massachusetts has the authority to issue fines of up to one thousand 
dollars for each violation if repeat instances of discrimination occur, 
pursuant to M.G.L. c. 149, Sec.  6, 454 CMR 25.05(1), 454 CMR 
29.04(2)(d), and MA FOM Chapter 9(II) procedures. As discussed below, 
OSHA's indices of effectiveness for State and local Government State 
Plans provide that, in lieu of monetary penalties as sanctions, a 
complex system of enforcement tools and rights, including 
administrative orders and employees' right to contest, may be 
demonstrated to be as effective as monetary penalties in achieving 
compliance in public employment (29 CFR 1956.11(c)(2)(x)). Thus, OSHA 
has found the Massachusetts State Plan to have met the statutory and 
regulatory requirements for initial plan approval with respect to its 
nondiscrimination protections.
5. Imminent Danger Procedures
    A State Plan is required to provide for the prompt restraint or 
elimination of conditions or practices in places of employment which 
could reasonably be expected to cause death or serious physical harm 
immediately or before the imminence of such danger can be eliminated 
through enforcement procedures otherwise provided for by the State Plan 
(29 CFR 1956.11(c)(2)(vii)).
    In the case of such imminent danger, the DLS has the authority to 
issue a stop work order for violations of safety regulations pursuant 
to 454 CMR 25.03(7). The Attorney General may bring a civil action for 
declaratory or injunctive relief to enforce any order of the DLS 
pursuant to 454 CMR 25.05(4), as well as M.G.L. c. 149, Sec. Sec.  2 
and 6\1/2\. 454 CMR 25.08 provides that the DLS will follow procedures 
in 29 CFR 1903, which is incorporated by 454 CMR 25.02, for cases of 
imminent danger, and the MA FOM Chapter 11 also has imminent danger 
procedures. These procedures include that, upon discovering conditions 
or practices constituting an imminent danger, the inspector will 
immediately address the issue with the State or local Government 
employer and ask the employer to notify employees and remove them from 
exposure. If the employer does not or cannot voluntarily eliminate the 
hazard or remove affected employees from exposure, the DLS inspector 
will immediately notify the Program Supervisor. If necessary, the 
Program Supervisor will consult with the DLS's General Counsel, the 
Massachusetts State Police, and the Attorney General, and take action 
to eliminate the imminent danger to the State or local Government 
employees as soon as possible (Document ID 0048, pp. 19-20).
6. Right of Entry; Advance Notice
    Section 18(c)(3) of the OSH Act requires State Plans to provide for 
a right of entry to inspect workplaces that is at least as effective as 
Federal OSHA's right under section 8 of the OSH Act, and which includes 
a prohibition on advance notice of inspections (29 U.S.C. 667(c)(3); 29 
CFR 1956.10(e) and (f)).
    Under the Massachusetts State Plan, inspectors have the authority 
to enter any place of employment without delay and at reasonable times, 
pursuant to M.G.L. c. 149, Sec. Sec.  6\1/2\, 10 and 17 and 454 CMR 
25.03(1)(a) (Document ID 0048, p.17). Anyone providing advance notice 
of any inspection, without permission from the Director, will be 
punished per M.G.L. c. 268A, Sec. Sec.  23 & 26 and 454 CMR 25.03(4). 
Incorporated 29 CFR 1903.6 provides four exceptions to the prohibition 
of providing advance notice, which are: (1) in cases of imminent 
danger; (2) where the inspection can most effectively be conducted 
after regular business hours or where special preparations are 
necessary; (3) where necessary to assure the presence of the employer 
and employees or needed personnel; (4) or in other circumstances where 
the Director determines that the giving of advance notice would enhance 
the probability of an effective and thorough inspection (Document ID 
0048, pp. 18-19).
    The five commenters that provided nearly identical public comments 
in support of OSHA's proposal to grant the Massachusetts State Plan 
initial approval raised concerns that the Massachusetts State Plan 
regulation, 454 CMR 25.03(4), allows advance notice of inspections if 
authorized by ``the Director'' without further limitation or reference 
to 29 CFR 1903.6 (Document ID 0049; 0050; 0051; 0054; 0056). The 
commenters request that the DLS be required to provide details on when 
and why the Director would give permission during the developmental 
period. In response to these concerns, OSHA notes, as discussed above, 
that the Massachusetts State Plan has adopted through rulemaking and 
incorporated the requirements of 29 CFR 1903.6, and thus is subject to 
their limitations. Further, OSHA finds that the reference to ``the 
Director'' in 454 CMR 25.03(4) is consistent with 29 CFR 1903.6, which 
vests decision-making authority with regard to giving advance notice of 
inspections with OSHA Area Directors. Finally, 454 CMR 25.03(4) makes 
clear that sanctions are available under M.G.L. c. 268A, sections 23 
and 26, for persons who give advance notice of any inspection without 
authority from the DLS Director. Based on this, OSHA has determined 
that the Massachusetts State Plan's requirements regarding advance 
notice of inspections are at least as effective as Federal OSHA's 
requirements.
7. Citations, Sanctions, and Abatement
    A State Plan for State and local Government must provide for prompt 
notice to State and local Government employers and employees when 
alleged violations have occurred, including proposed abatement 
requirements (29 CFR 1956.11(c)(2)(ix)). The State Plan must further 
provide the authority for effective sanctions to be issued against 
employers violating State occupational safety and health standards. In 
lieu of monetary penalties as sanctions, a

[[Page 50773]]

complex system of enforcement tools and rights, including 
administrative orders and employees' right to contest, may be 
demonstrated to be as effective as monetary penalties in achieving 
compliance in public employment (29 CFR 1956.11(c)(2)(x)).
    The DLS's authority to issue Civil Citations and penalties is 
established in M.G.L. c. 149, Sec. Sec.  6 and 6\1/2\, 454 CMR 25.00, 
and 454 CMR 29.00, and 29 CFR part 1903, as incorporated by 454 CMR 
25.02. If an inspector believes that a violation of a safety and health 
standard exists, the inspector will issue a written Order to Correct 
within 180 days of the completion of the inspection process. This 
report will describe the nature of the violation, including reference 
to the appropriate regulation, the corrective action to abate the 
violation, and an abatement date for each violation, pursuant to 454 
CMR 25.05(2). The DLS shall provide written notification to the 
appropriate governing official, public administrator, agency head, and/
or personnel director, pursuant to 454 CMR 25.05(3). No reports will be 
issued after 180 days from the initiation of an inspection. 
Massachusetts will amend 454 CMR 25.05(2) during its developmental 
period to reflect this policy (Document ID 0048, p. 22).
    The Director has the discretion to issue civil penalties of up to 
$1,000 per violation, pursuant to M.G.L. c. 149, 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 
(Document ID 0048, pp. 23-26).
    The DLS will offer appropriate abatement assistance during the 
walkaround to explain how workplace hazards might be eliminated and 
advise a State or local Government employer of apparent violations and 
other pertinent issues during the closing conference, in the interest 
of providing the employer an opportunity to reduce the risk to 
employees from that hazard. In some circumstances, the employer's 
immediate correction or initiation of steps to abate a hazard during 
the inspection may result in a good faith reduction in any proposed 
penalty, pursuant to 29 CFR 1903.15(b) and (c) as incorporated by 454 
CMR 25.02, 454 CMR 29.00 and the MA FOM Chapter 6(III)(B)(3)(b) 
(Document ID 0048, p. 23).
    Covered employers must provide documentation of abatement pursuant 
to 29 CFR 1903.19(d), incorporated by 454 CMR 25.02 and the MA FOM 
Chapter 6(X)(C), or a follow-up inspection may be scheduled after the 
abatement time frame has expired. A written response from the employer 
will be evaluated by the DLS for completeness and appropriateness in 
relation to the report. If the written response is inadequate, a 
follow-up inspection can be scheduled after the abatement time frame, 
per the MA FOM Chapter 7(XI)(B). The results of the follow-up 
inspection will then be documented in a report that includes any 
corrective measures taken by the employer. This report will be sent to 
the complainant if the original inspection was initiated by a 
complaint. The complainant may refute or question any abatement 
measure, per the MA FOM (Document ID 0048, p. 23).
8. Contested Cases
    A State Plan for State and local Government employees must have 
authority and procedures for employer contests of violations alleged by 
the State, penalties/sanctions, and abatement requirements at full 
administrative or judicial hearings. Employees must also have the right 
to contest abatement periods and the opportunity to participate as 
parties in all proceedings resulting from an employer's contest (29 CFR 
2956.11(c)(2)(xi)).
    Under the Massachusetts State Plan, any person, State or local 
Government employer, or other entity aggrieved by a Civil Citation, 
Order, or Penalty for violation of a standard under 454 CMR 25.00, 
promulgated pursuant to M.G.L. c. 149, Sec.  6\1/2\, may request that 
an administrative hearing be held by submitting a written request to 
the Director or their representative within fifteen business days after 
the receipt of the Civil Citation or Order, pursuant to M.G.L. c. 149, 
Sec.  9 and as detailed in 454 CMR 29.04(6) as referenced by 454 CMR 
25.05(1). A State or local Government employer may contest a Civil 
Citation, penalty, or abatement period at an informal conference and an 
administrative hearing, pursuant to M.G.L. c. 149, Sec.  9 and as 
detailed in 454 CMR 29.04(6) as referenced by 454 CMR 25.05(1) and the 
MA FOM Chapter 8. Employees or their authorized representatives may 
question the reasonableness of abatement periods pursuant to 29 CFR 
1903, as adopted in 454 CMR 25.00, M.G.L. c. 149, Sec.  9 as detailed 
in 454 CMR 29.04(6) and the MA FOM. Employees or their authorized 
representatives may participate in review proceedings pursuant to 29 
CFR 1903, as adopted in 454 CMR 25.00, M.G.L. c. 149, Sec.  9 as 
detailed in 454 CMR 29.04(6) and the MA FOM Chapter 8.
    Informal conferences may be held prior to a formal administrative 
hearing pursuant to 29 CFR 1903.20, as incorporated by 454 CMR 25.02 
and the MA FOM Chapter 8. At the request of an affected State or local 
Government employer, employee, or employee representative, an informal 
conference may be held within fifteen business days of receipt of a 
Civil Citation to discuss any issues raised by an inspection, citation, 
penalty, or intention to appeal. The requesting party may attend the 
conference by right, and the other parties shall be afforded the 
opportunity to participate in the informal conference.
    All administrative hearings shall be held in accordance with the 
requirements of M.G.L. c. 30A and 801 CMR 1.00: Standard Adjudicatory 
Rules of Practice and Procedure, pursuant to 29 CMR 29.04(6). Any 
person, State or local Government employer, or other entity aggrieved 
by the decision of an administrative hearing may request judicial 
review of the decision by the Superior Court with jurisdiction, 
pursuant to M.G.L. c. 149, Sec.  9 and as detailed in 454 CMR 29.04(6), 
801 CMR 1.01(13), and M.G.L. c. 30A, Sec.  14 (Document ID 0048, pp. 
25-26).
Enforcement Conclusion
    OSHA finds that all of the enforcement provisions of the 
Massachusetts State Plan described above meet the statutory and 
regulatory requirements for initial State Plan approval, or that 
Massachusetts has provided sufficient assurances that such requirements 
will be met during the developmental period.

F. Staffing and Resources

    Section 18(c)(4) of the OSH Act requires State Plans to provide the 
qualified personnel necessary for the enforcement of standards (29 
U.S.C. 667(c)(4)). OSHA's regulations also require OSHA to evaluate 
whether a State Plan for State and local Government has or will have a 
sufficient number of adequately trained and competent personnel to 
discharge its

[[Page 50774]]

responsibilities under the Plan (29 CFR 1956.10(g)). Section 18(c)(5) 
of the OSH Act requires that the State Plan devote adequate funds for 
the administration and enforcement of its standards (29 U.S.C. 
667(c)(5); see also 29 CFR 1956.10(h)).
    The Massachusetts State Plan provides assurances of a fully 
trained, adequate staff within three years of plan approval, including 
a program supervisor, an operations supervisor, 10 safety inspectors 
and three health inspectors. The DLS currently has eleven inspectors, 
seven safety inspectors, and four health inspectors, all of whom 
perform duties related to both enforcement and consultation. If granted 
initial approval, the DLS will add three safety enforcement inspectors. 
The DLS will redesignate two of its safety enforcement inspectors and 
one health inspector to exclusively perform consultation. These re-
designated employees will be part of a separate consultation division 
with distinct supervision from the enforcement inspectors. The DLS will 
also train one supervisor and two enforcement inspectors to conduct 
whistleblower investigations (Document ID 0048, pp. 33-35).
    The accomplishment of hiring to achieve staffing goals, 
reorganization of the DLS staffing pattern described above, adoption of 
OSHA's Mandatory Training Program for OSHA Compliance Personnel 
Directive (TED 01-00-019) and Mandatory Training Program for OSHA 
Whistleblower Investigators Directive (TED 01-00-020), and 
accomplishment of all personnel training consistent with these 
Directives, are all included as developmental steps in the 
Massachusetts State Plan's timetable for accomplishment within three 
years, during the Massachusetts State Plan's developmental period 
(Document ID 0048, pp. 37-38).
    The compliance staffing requirements (or benchmarks) for State 
Plans covering both the private and public sectors are established 
based on the ``fully effective'' test established in AFL-CIO v. 
Marshall, 570 F.2d 1030 (D.C. Cir. 1978). This staffing test, and the 
complicated formula used to derive benchmarks for Full Coverage Plans 
is not intended, nor is it appropriate, for application to the staffing 
needs of State Plans for occupational safety and health programs 
covering only State and local Government workers. However, the DLS has 
given satisfactory assurances that it will meet the requirements of 29 
CFR 1956.10 for an adequately trained and qualified staff sufficient 
for the enforcement of standards. The DLS has also given satisfactory 
assurances of adequate State matching funds (50 percent) to support the 
Plan and is requesting initial Federal funding of $1,250,000, for a 
total initial program effort of $2,500,000.
    Accordingly, OSHA finds that the Massachusetts State Plan has 
provided for sufficient, qualified personnel and adequate funding for 
the various activities to be carried out under the Plan.

G. Records and Reports

    Section 18(c)(7) of the OSH Act requires State Plans to make 
reports to the Assistant Secretary in the same manner as if the Plan 
were not in effect (29 U.S.C. 667(c)(7)). State and local Government 
State Plans must ensure that covered employers will maintain records 
and make reports on occupational injuries and illnesses in a manner 
similar to that required of private sector employers under the OSH Act 
(29 CFR 1956.10(i)). Section 18(c)(8) of the OSH Act requires State 
Plans to make such reports to the Assistant Secretary in such form and 
containing such information as they may from time to time require (29 
U.S.C. 667(c)(8); 29 CFR 1956.10(j)).
    The Massachusetts State Plan requires State and local Government 
employers to comply with Recordkeeping and Reporting Requirements at 
454 CMR 25.06 and 29 CFR 1904, which is incorporated per 454 CMR 25.02. 
Under 454 CMR 25.06 and 29 CFR 1904, the DLS requires State and local 
Government employers to maintain accurate records for every 
occupational death, and every occupational injury and illness that 
results in death, loss of consciousness, days away from work, 
restricted work activity or job transfer, or medical treatment beyond 
first aid in a manner consistent with OSHA's requirements for private 
sector employers.
    Covered employers in Massachusetts are required to maintain in each 
workplace an OSHA 300 Log, or equivalent, of all recordable 
occupational injuries and illnesses for that workplace. Within seven 
calendar days after receiving information about a case, the employer 
shall: decide if the case is recordable, determine if it is a new case 
or a recurrence of an existing one, establish whether the case was 
work-related, and decide whether to fill out the OSHA 301 Incident 
Report, the Massachusetts Department of Industrial Accidents form, or a 
suitable substitute that contains the same information as these first 
report of injury forms, pursuant to 29 CFR part 1904, incorporated per 
454 CMR 25.02, and 454 CMR 25.06. Covered employers must post an annual 
summary of work-related injuries and illnesses for each workplace on 
the OSHA 300A form, or equivalent, from February 1 to April 30 of the 
year following the year covered by the form in a conspicuous location 
where employees can view it and it must be certified by an executive of 
the State or local Government employer, pursuant to 29 CFR 1904.32, 
incorporated per 454 CMR 25.02. The OSHA 300A Summary of Work-Related 
Injuries and Illnesses, the OSHA 301 Injury and Illness Incident 
Report, and the OSHA 300 Log of Work-Related Injuries and Illnesses, or 
suitable substitutes, must be retained for five years following the end 
of the calendar year that the records cover, pursuant to 29 CFR 
1904.33, incorporated per 454 CMR 25.02. Such records are available to 
the DLS through inspection or by request, pursuant to M.G.L. c. 149, 
Sec. Sec.  10 & 17 and 454 CMR 25.03(1)(c) (Document ID 0048, pp. 30-
31).
    The Massachusetts State Plan has also provided assurances in its 
State Plan that it will continue to participate in the Bureau of Labor 
Statistics' Annual Survey of Injuries and Illnesses in the State to 
provide detailed injury, illness, and fatality rates for the public 
sector. The State Plan will also provide reports to OSHA in the desired 
form and will join the OSHA Information System within 90 days of plan 
approval, including the implementation of all hardware, software, and 
adaptations as necessary (Document ID 0048, p. 31).
    Accordingly, OSHA finds that the Massachusetts State Plan meets, or 
has adequately provided assurances that it will meet within the 
developmental period, the requirements of Sections 18(c)(7) and (8) of 
the OSH Act on the employer and State reports to the Assistant 
Secretary, as required for initial State Plan approval.

H. Voluntary Compliance Program

    State Plans for State and local Government employees must undertake 
programs to encourage voluntary compliance by covered employers and 
employees, such as by conducting training and consultation, and 
encouraging agency self-inspection programs (29 CFR 
1956.11(c)(2)(xii)).
    The Massachusetts State Plan provides that the DLS will continue to 
provide and conduct educational programs for public employees 
specifically designed to meet the regulatory requirements and needs of 
covered employers. The Plan also provides that consultations, including 
site visits, compliance assistance and training classes, are 
individualized for

[[Page 50775]]

each work site and tailored to the public employer's concerns. The DLS 
has conducted over 250 on-site consultations (i.e., voluntary 
compliance inspections) for State and local Government workplaces since 
2015. The DLS will continue to offer this service as it is a vital 
component of creating a culture of safety and proactively preventing 
accidents. In addition, public agencies are encouraged to develop and 
maintain their own safety and health programs as an adjunct to but not 
a substitute for the Massachusetts State Plan's enforcement program 
(Document ID 0048, p. 28).
    The DLS will adopt OSHA's regulation governing Consultation 
Agreements, 29 CFR 1908, during the developmental period. The DLS has 
also agreed to adjust its organizational structure to ensure separation 
between enforcement and compliance assistance (Document ID 0048, p. 
28).
    OSHA finds that the Massachusetts State Plan provides for the 
establishment and administration of an effective voluntary compliance 
program.

V. Decision

    OSHA has conducted a careful review of the Massachusetts State Plan 
for the development and enforcement of State standards applicable to 
Massachusetts State and local Government employment, and the record 
developed during the above-described proceedings, including public 
comments received in support of OSHA's June 30, 2022, proposal. Based 
on this review, and on the assurances provided by the Massachusetts 
State Plan of the steps that it will take during the developmental 
period, OSHA has determined that the requirements and criteria for 
initial approval of a developmental State Plan have been met. The 
Massachusetts State Plan is hereby approved as a developmental State 
Plan for State and local Government under Section 18 of the OSH Act.
    OSHA notes that Massachusetts already has authority to enforce and 
is carrying out enforcement of its occupational safety and health 
standards in Massachusetts places of State and local Government 
employment. However, this determination by OSHA to grant the 
Massachusetts State Plan initial approval makes Massachusetts eligible 
to apply for and receive up to 50% matching Federal grant funding, as 
authorized by the OSH Act under section 23(g) (29 U.S.C. 672(g)). In 
addition, this determination signifies the beginning of the 
Massachusetts State Plan's three-year developmental period, during 
which Massachusetts will be required to address the developmental steps 
identified in the Massachusetts State Plan narrative that is included 
in the docket of this rulemaking at www.regulations.gov (29 CFR 
1956.2(b)(1)) (Document ID 0048, pp. 37-38). OSHA will publish a 
certification notice in the Federal Register to advise the public once 
Massachusetts has completed all developmental steps (29 CFR 1956.23; 29 
CFR 1902.33; 1902.34).

VI. Regulatory Flexibility Act

    OSHA certifies pursuant to the Regulatory Flexibility Act of 1980 
(5 U.S.C. 601 et seq.) that the initial approval of the Massachusetts 
State Plan will not have a significant economic impact on a substantial 
number of small entities. By its own terms, the Plan will have no 
effect on private sector employment and is limited to the State of 
Massachusetts and its political subdivisions. Compliance with State 
OSHA standards is required by State law; Federal approval of a State 
Plan imposes regulatory requirements only on the agency responsible for 
administering the State Plan. Accordingly, no new obligations would be 
placed on State and local Government employers as a result of Federal 
approval of the Massachusetts State Plan. The approval of a State Plan 
for State and local Government employers in Massachusetts is not a 
significant regulatory action as defined in Executive Order 12866.

VII. Federalism

    Executive Order 13132, ``Federalism,'' emphasizes consultation 
between Federal agencies and the States and establishes specific review 
procedures the Federal Government must follow as it carries out 
policies which affect State or local Governments. OSHA has consulted 
extensively with Massachusetts throughout the development, submission, 
and consideration of its State Plan. Although OSHA has determined that 
the requirements and consultation procedures provided in Executive 
Order 13132 are not applicable to initial approval decisions under the 
Act, which have no effect outside the particular State receiving the 
approval, OSHA has reviewed the Massachusetts initial approval decision 
and believes it is consistent with the principles and criteria set 
forth in the Executive Order.

VIII. Effective Date

    OSHA's decision granting initial Federal approval to the 
Massachusetts State and local Government State Plan is effective August 
18, 2022. OSHA has determined that good cause exists for making Federal 
approval of the Massachusetts State Plan effective upon publication, 
pursuant to Section 553(d) of the Administrative Procedure Act. 
Massachusetts' program has been in effect for many years, and further 
modification of the program will be required over the next three years, 
following this decision to grant initial approval. OSHA's proposal 
provided an opportunity for the submission of comment and requests for 
a public hearing. The seven comments received during this rulemaking 
strongly supported OSHA's grant of initial approval. Further, Federal 
funds for the Massachusetts State Plan are available through the Fiscal 
Year 2022 Omnibus Appropriations Act. Therefore, for these reasons, 
this decision is immediately effective.

List of Subjects in 29 CFR Part 1952

    Intergovernmental relations, Occupational safety and health, 
Reporting and recordkeeping requirements.

Authority and Signature

    Douglas L. Parker, Assistant Secretary of Labor for Occupational 
Safety and Health, U.S. Department of Labor, 200 Constitution Ave. NW, 
Washington, DC, authorized the preparation of this notice. OSHA is 
issuing this notice under the authority specified by Section 18 of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 667), Secretary 
of Labor's Order No. 8-2020 (85 FR 58393), and 29 CFR parts 1902 and 
1956.

Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.

    For the reasons stated in the preamble, 29 CFR part 1952 is amended 
as follows:

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

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:

[[Page 50776]]

Sec.  1952.29  Massachusetts.

    (a) The Massachusetts State Plan for State and local Government 
employees received initial approval from the Assistant Secretary on 
August 18, 2022.
    (b) The Plan further provides assurances of a fully trained, 
adequate staff within three years of plan approval, including 8 safety 
and 3 health compliance officers for enforcement inspections, and 2 
safety and 1 health consultants to perform consultation services in the 
public sector. The State has assured that it will continue to provide a 
sufficient number of adequately trained and qualified personnel 
necessary for the enforcement of standards as required by 29 CFR 
1956.10. The State has also given satisfactory assurance of adequate 
funding to support the Plan.
    (c) The plan only covers State and local government employers and 
employees within the State. For additional details about the plan, 
please visit https://www.osha.gov/dcsp/osp/stateprogs/massachusetts.html.

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