OSHA Instruction STP 2-1.117 August 31, 1984 Office of State Programs

SUBJECT: State Standards

A. Purpose. This instruction changes and clarifies the process whereby OSHA reviews and approves State standards promulgated pursuant to an approved State plan, and, in particular, the process for addressing State standards which differ substantively from the comparable Federal standard.

B. Scope. This instruction applies OSHA-wide and to State plan States.

C. References. The following OSHA Instructions are related to the review and approval of State occupational safety and health standards, and should continue to be utilized as appropriate.

1. OSHA Instruction STP 2.1, October 30, 1978.

2. OSHA Instruction STP 2-1.7, October 30, 1978.

3. OSHA Instruction STP 2-1.17, October 30, 1978.

4. OSHA Instruction STP 2-1.19, October 30, 1978.

D. Policy/Procedures. The major principles that OSHA will apply in its review and approval of State standards are as follows:

1. Identical State Standards. State standards with purely editorial modifications and no substantively different requirements shall be considered to be identical standards for which a formal standards comparison, other than a numbering conversion table, need not be submitted. However, States are encouraged to avoid changes to Federal standards for purely editorial purposes.

2. Different or Independent State Standards. Different State standards (those with substantively different requirements from the comparable Federal standard) and independent State standards (those with no directly comparable Federal standard but within an issue covered federally through general standards provisions or compliance policies) shall be demonstrated, through a State-submitted comparison and justification, to be "at least as effective" as the Federal standards provisions.

OSHA Instruction STP 2-1.117 August 31, 1984 Office of State Programs

a. Standards Comparison, The State's standards comparison shall be in the format established in STP 2.1. A rationale as to why it is "at least as effective" shall be provided for each standards section that differs substantively from the Federal. Sections that are identical or contain only editorial changes shall be simply labeled as such.

b. Effectiveness. If the provisions of a State standard are as stringent or more stringent than the comparable Federal standards provisions, the standard is "at least as effective." However, in addition to being "at least as effective," different or independent standards must also meet the product clause test of section 18(c)(2) of the Act.

3. Product Clause Test. OSHA will seek public comment through the Federal Register on any different or independent State standard that contains significant substantive differences and has been preliminarily determined to be "at least as effective" as the Federal. OSHA will seek comment as to whether the standard (1) is "at least as effective," (2) is applicable to a product distributed or used in interstate commerce, (3) is required by compelling local conditions and (4) poses any undue burden on interstate commerce.

a. State Information. The State is not required to develop a record on the three product clause issues during its promulgation process, but may do so if it chooses, and may submit any information it deems appropriate at the time of its submission of a different or independent State standard.

b. OSHA Decision. In the absence of record evidence to the contrary (including evidence developed by or submitted to OSHA during its review of the standard), the State standard shall be presumed to be "at least as effective" as the Federal standard and shall be presumed to be in compliance with the product clause test of section 18(c)(2) of the Act.

OSHA Instruction STP 2-1.117 August 31, 1984 Office of State Programs

4. Timeliness. OSHA regulations (29 CFR 1953.23(a)(2)) establish the requirement that States shall respond to the adoption of new or revised permanent Federal standards by State promulgation (publication) of comparable standard(s) within 6 months of Federal promulgation (publication in the Federal Register). A 30-day response time is established by 29 CFR 1953.22(a)(1) for State adoption of a standard comparable to a Federal emergency temporary standard. Any delay in State action subjects employers to inequitable treatment from State to State and fails to ensure equivalent employee protection. This is especially significant after a State is granted final approval under section 18(e) of the Act, when the authority for interim Federal enforcement protection is relinquished. To avoid the inequities thereby created, the following requirements have been developed:

a. Interim Enforcement. Should a State for whatever reason be unable to promulgate a standard in a timely manner (6 months for a permanent standard, 30 days for an emergency temporary standard) the State shall be expected to provide assurance that it will enforce the substantive provisions of the new or revised Federal standard through such means as use of its general duty clause or equivalent, temporary adoption of an identical standard, or an alternative, specified enforcement mechanism.

b. Effective Dates. States shall meet these requirements.

(1) The initial effective date for an identical or different State standard may be no later than the date of State promulgation or the Federal effective date, whichever is later. Where a Federal standard contains delayed effective dates for various provisions, the State effective dates for these provisions may be no later than the delayed Federal dates or the date of State promulgation, whichever is later.

OSHA Instruction STP 2-1.117 August 31, 1984 Office of State Programs

(2) When the effective date of a Federal standard or any provision thereof is stayed, either administratively or by a court during judicial review, States may, but are not required to, stay the effective date of the comparable State standard or provisions. Where the stay occurs within 6 months of Federal promulgation, the 6-month time frame for adopting a comparable State standard does not begin until such time as the stay is removed. However, if the Federal standard is stayed in whole or in part subsequent to the 6-month period, and if the State honors the stay, it should be prepared to lift the stay as expeditiously as the Federal action; i.e. , the State should ensure whenever possible that the corresponding State standard or provisions become enforceable no later than the Federal.

c. Standards Submission. A standard promulgated by a State pursuant to an approved State plan is enforced by the State prior to Federal OSHA approval of the State standard. States shall be expected to submit all standards for OSHA review and approval within 30 days of State promulgation (publication). Until now, there has been no specified time frame established for State submission of promulgated standards, thus often adding significantly to the period a State standard is in effect without Federal review and approval.

5. OSHA Review Procedures. The authority for review and approval of State standards has been delegated to the Regional Administrator, subject to the advice and assistance of the Assistant Secretary for purposes of uniformity and consistency (29 CFR 1953.4).

a. Regional Office. For all different and independent State standards, the Regional Administrator shall:

OSHA Instruction STP 2-1.117 August 31, 1984 Office of State Programs (1) Make a preliminary determination as to whether the standard is "at least as effective" as the Federal and whether the State has adequately identified each substantive difference and demonstrated how it provides equivalent protection.

(2) Make a judgment on whether the substantive differences in the standard are significant enough to warrant a request for public comment on effectiveness and the product clause test.

(3) Defer formally advising the State of the Regional Administrator's judgment on the standard's effectiveness or need for correction until such time as a National Office review on the effectiveness and product clause issues has been requested of the Director of Federal-State Operations, completed and a consensus OSHA opinion reached.

(4) Negotiate correction with the State if the Director of Federal-State Operations and the Regional Administrator mutually determine that a standard is not "at least as effective."

(5) Following National Office review, prepare Federal Register approval notices for all standards mutually determined to be "at least as effective" on which public comment is not sought, because any substantive differences are not significant.

b. National Office. In addition to Federal-State Operations, the National Office review shall include, the Directorate of Health Standards Programs, the Directorate of Safety Standards Programs, the Office of the Solicitor, and the Office of Regulatory Analysis, as appropriate.

OSHA Instruction STP 2-1.117 August 31, 1984 Office of State Programs

(1) Once it is agreed that a different or independent State standard with significant substantive differences appears to be "at least as effective," a Federal Register notice seeking public comment on the State standard's effectiveness and product clause issues shall be prepared.

(2) Subsequent to the review of all public comments received and other information on the record by both the Regional Administrator and the National Office, a decision on whether to approve the standard will be made, in consultation with the Assistant Secretary, and an appropriate Federal Register notice approving the standard or proposing rejection will be prepared and published.

E. Background. Over the past several years a number of concerns have been raised in regard to OSHA's review and approval of State standards, especially those which differ significantly from parallel Federal standards and/or enforcement policies. Multi-State employers, among others, have objected to the variable compliance obligations established by different State standards and questioned whether OSHA was adequately applying the test established in section 18(c)(2) of the Act. Section 18(c)(2) provides that where a different or independent State standard is applicable to a product used or distributed in interstate commerce, it must, in addition to being "at least as effective" as the comparable Federal standard, be both required by compelling local conditions and not pose an undue burden on interstate commerce. In addition, the internal OSHA procedures for review of State standards at the Regional and National Office level did not adequately delineate responsibilities nor provide for uniform and consistent decisionmaking. In response to this situation, OSHA developed in November 1982 a revised policy for dealing with State standards. The draft policy was discussed in detail with the States, resulting in several

OSHA Instruction STP 2-1.117 August 31, 1984 Office of State Programs

modifications and improvements. Discussions with the States having now been completed, this instruction establishes the general policy guidelines OSHA will follow in reviewing State standards. More detailed procedural directives will be issued subsequently as appropriate.

Robert A. Rowland Assistant Secretary

DISTRIBUTION: National and Regional Offices State Designees