OSHA Instruction STP 2-1.10A March 13, 1981 Office of State Programs

Subject: The Effect of Preemption on State Agencies Without 18(b) Plans

A. Purpose. This instruction provides OSHA's interpretation of the effect of preemption on State agencies without 18(b) plans.

B. Scope. This instruction applies OSHA-wide.

C. Cancellation. OSHA Instruction STP 2-1.10, August 16, 1972 is canceled.

D. Action. Regional Administrators shall assure that:

1. State agencies which are subject to preemption are encouraged to tailor a program to those activities not affected by preemption. Programs designed to provide training and consultative services for employers and employees may be continued by State agencies. All State agencies without an 18(b) plan covering the private and public sectors, are urged to develop an 18(b) plan for State and local government employees only, or to provide for protection of these employees apart from such a plan.

2. States with an 18(b) plan in process are encouraged to utilize any interval during which they would be subject to preemption to undertake activities necessary for plan implementation. Such activities might include, for example, preparatory training of State staff as well as employer and employee training and familiarization programs.

3. States subject to preemption understand that their continued program activities may include those activities which are noted in F. of this instruction.

OSHA Instruction STP 2-1.10A March 13, 1981 Office of State Programs

E. Background. Preemption is a complex legal matter which can only be finally determined by court decisions. The way in which the U. S Department of Labor, the agency charged by Congress with administering the statute, interprets Section 18(a) of the Act will be taken into consideration by the courts.

1. Even though Congress temporarily postponed preemption through Section 18(h), it is the view of the Occupational Safety and Health Administration that the intention of Congress under Section 18(a) of the Act was to preempt States without an approved 18(b) State plan from enforcing standards covering occupational safety and health hazards for which Federal standards are in effect under Section 6. It should be noted that as new Section 6 standards are developed and become effective, the States' jurisdiction over hazards will diminish.

2. State enforcement activities with regard to State standards which would be subject to this preemption would include such matters as inspection for compliance, issuance of citations for violations, abatement orders, application of sanctions and any further enforcement proceedings.

3. It is not the intention of the Occupational Safety and Health Administration to take any formal legal or other action to preempt States from these activities. It is pointed out, however, that States which carry out these enforcement activities without an approved 18(b) plan covering the standards would be subject to challenge on appeal by employers

F. State Enforcement. Besides retaining jurisdiction over hazards for which no Federal standards are in effect, the enforcement activities of States without an approved 18(b) plan would not be affected in the following respects.

1. State enforcement of standards which on their face are predominately for the purpose of protecting a class of persons larger than employees within the meaning of 29 CFR Part 1910.5(d) when enforced for such purpose. State and local fire

OSHA Instruction STP 2-1.10A March 13, 1981 Office of State Programs

marshal activities in behalf of public safety and the protection of property would come within this classification.

2. State activity generally not falling within the enforcement activities listed above, such as consultation with employers and employees and training and information activities.

3. State enforcement under State "general duty" or similar clauses, insofar as such enforcement relates to hazards not covered by Federal standards.

4. All State enforcement with respect to occupational safety and health programs for State and local government employees.

Bruce Hillenbrand Acting Director, Federal Compliance and State Programs

DISTRIBUTION National, Regional and Area Offices All Compliance Officers State Designees NIOSH Regional Program Directors

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