VII. Federalism

This regulation has been reviewed in accordance with Executive Order 12612 (52 FR 41685, October 30, 1987) regarding Federalism. This Order requires that Agencies, to the extent possible, refrain from limiting state policy options, consult with states prior to taking any actions which would restrict State policy options, and take such actions only when there is clear constitutional authority and the presence of a problem of national scope. The Order provides for preemption of state law only if there is clear Congressional intent for the Agency to do so. Any such preemption is to be limited to the extent possible.

Section 18 of the Occupational Safety and Health Act (OSH Act) expresses Congress' clear intent to preempt state laws relating to issues on which federal OSHA has promulgated occupational safety and health standards. Under the OSH Act, a state can avoid preemption only if it submits, and obtains Federal approval of a plan for the development of such standards and their enforcement. Occupational safety and health standards developed by such states must, among other things, be at least as effective in providing safe and healthful employment and places of employment as the federal standards. Where such standards are applicable to products distributed or used in interstate commerce, they may not burden commerce unduly and must be justified by compelling local conditions (see section 18(c)(2) of the OSH Act).

The Federal standard on personal protective equipment addresses hazards which are not unique to any one state or region of the country. Nonetheless, states with occupational safety and health plans approved under section 18, of the OSH Act, will be able to develop their own state standards to deal with any special problems which might be encountered in a particular state. Moreover, this standard is written in general, performance-oriented terms. There is considerable flexibility for methods of compliance which are appropriate to the working conditions covered by the standard.

In brief, this regulation addresses a clear national problem related to occupational safety and health in shipyard employment. Those states which have elected to participate under section 18, of the OSH Act are not preempted by this standard, and will be able to deal with any special conditions within the framework of the Federal Act, while ensuring that the state standards are at least as effective as that standard.

[61 FR 26321, May 24, 1996]