

[Federal Register: August 16, 2006 (Volume 71, Number 158)]
[Rules and Regulations]               
[Page 47081-47090]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16au06-9]                         


[[Page 47081]]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1956

RIN 1218-AC24

 
New York State Plan for Public Employees Only; Approval of Plan 
Supplements and Certification of Completion of Developmental Steps

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

ACTION: Final rule; New York State Plan; Approval of Plan Supplements; 
State Plan Certification.

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SUMMARY: The New York Department of Labor submitted timely 
documentation attesting to the completion of all structural and 
developmental aspects of its public employee (State and local 
government) only State plan as approved by the Occupational Safety and 
Health Administration (OSHA). After extensive review of the submissions 
and opportunity for correction, plan supplements constituting an 
updated and revised State plan were submitted. OSHA is approving the 
revised State plan, which documents the satisfactory completion of all 
structural and developmental aspects of New York's approved State plan, 
and certifying this completion. This certification attests to the fact 
that New York now has in place those structural components necessary 
for an effective public employee only program. (Enforcement of 
occupational safety and health standards with regard to private sector 
employers and employees in the State of New York remains the 
responsibility of the U.S. Department of Labor, Occupational Safety and 
Health Administration.)

DATES: Effective Date: August 16, 2006.

FOR FURTHER INFORMATION CONTACT: For general information and press 
inquiries, contact Kevin Ropp, Director, Office of Communications, Room 
N-3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW., 
Washington, DC 20210; telephone (202) 693-1999. For technical 
inquiries, contact Barbara Bryant, Director, Office of State Programs, 
Directorate of Cooperative and State Programs, OSHA, U.S. Department of 
Labor, 200 Constitution Avenue, NW, Room N-3700, Washington, DC 20210; 
telephone (202) 693-2244. Electronic copies of this Federal Register 
notice, as well as all OSHA Federal Register notices mentioned in this 
document, are available on OSHA's Web site at http://www.osha.gov.


SUPPLEMENTARY INFORMATION:

I. Background

    Section 18 of the Occupational Safety and Health Act of 1970 (the 
``OSH Act''; 29 U.S.C. 667) provides that a State which desires to 
assume responsibility for the development and enforcement of 
occupational safety and health standards may submit for OSHA review and 
approval a State plan for such development and enforcement. Regulations 
at 29 CFR part 1956 provide that a State may voluntarily 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 (hereinafter referred to as 
``public employers'' and ``public employees''). State and local 
government employers are excluded from Federal OSHA coverage under 
section 3(5) of the OSH Act.
    Under these regulations, the Assistant Secretary of Labor for 
Occupational Safety and Health (``Assistant Secretary'') may approve a 
State plan for public employees only, 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 
by Federal OSHA under section 6 of the OSH 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. Following initial approval, 
the State may begin enforcement of its safety and health standards in 
the public sector and receive up to 50 percent Federal funding for the 
cost of plan operations.
    A State plan for public employees only may receive initial approval 
even though at the time of submission not all essential components of 
the plan are in place. Pursuant to 29 CFR 1956.2(b), the Assistant 
Secretary may initially approve the submission as a ``developmental 
plan,'' and a schedule within which the State must complete all 
``developmental steps'' within a three year period is issued as part of 
the initial approval decision. 29 CFR part 1953 provides procedures for 
the review and approval of changes and progress in the development and 
implementation of the State plan.
    When the Assistant Secretary has reviewed and approved all 
developmental submissions and finds that the State has satisfactorily 
completed all developmental steps specified in the initial approval 
decision, a notice certifying such completion is published in the 
Federal Register (see 29 CFR 1956.23 and 1902.34). Certification 
attests to the structural completeness of the plan but does not render 
judgment as to the adequacy or effectiveness of State performance.

II. State Plan History

    The New York State plan for public employees only (``New York'' or 
``the State'') is operated by the New York Department of Labor, Public 
Employee Safety and Health (PESH) Program. This limited scope State 
plan was initially approved as a developmental plan under section 18(b) 
of the OSH Act, and 29 CFR part 1956, on June 1, 1984 (49 FR 22994). 
After the initial approval of the State plan for public employees only 
in 1984, New York successfully submitted all of its developmental plan 
change supplements within three years of the initial approval decision.
    Previously, in May 1973, the New York Department of Labor had 
received approval from the Assistant Secretary, under 29 CFR part 1902, 
for a comprehensive State plan for the enforcement of occupational 
safety and health standards in both the private and public sectors (38 
FR 13482-13485). That plan was voluntarily withdrawn when the necessary 
State enabling legislation failed to be enacted (40 FR 27655).
    In November 2004, PESH submitted a completely revised State plan 
which provided updated documentation on all its developmental steps, 
including those previously approved, for OSHA review and consideration. 
After extensive review of those documents and opportunity for State 
correction, New York submitted further revisions in August 2005, 
October 2005, and April 2006.

III. Description of the Revised State Plan

    New York submitted plan supplements constituting a revised State 
plan document on November 4, 2004, with subsequent revisions dated 
August 19, 2005, October 17, 2005, and April 28, 2006. The revised 
State plan updates and documents all structural components of the New 
York program. This includes a revised narrative description of the 
current program, legislation, administrative rules, standards, a 
compliance manual, and

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current copies of all key documents relating to New York's occupational 
safety and health program for public employees. These documents are 
described below and are being approved in this notice.

A. The Plan Narrative and Appendices

    The plan designates the Commissioner of the New York Department of 
Labor, through the Division of Safety and Health, Public Employee 
Safety and Health (PESH) program, as the State agency responsible for 
administering the plan throughout the State. The plan narrative 
provides a general overview of PESH's legal authority, standards and 
variances, regulations, enforcement policies and procedures (the 
``Field Operations Manual''), voluntary compliance activities 
(including consultative services and training and outreach programs), 
an occupational safety and health laboratory, personnel policies and 
procedures, recordkeeping and reporting requirements, budget, staffing 
and funding, all of which, together with the supporting documents 
contained in various appendices, have been determined to provide 
authority which is ``at least as effective as'' that of the OSH Act and 
to meet the criteria and indices for plan approval contained in 29 CFR 
part 1956.
    The State plan appendices contain a variety of State statutes 
related to the PESH program and its authority, contest procedures, and 
personnel policies, including: New York Public Employee Safety and 
Health Act at Article 2, Section 27-a of the New York State Labor Law 
(``Labor Law''); Article 1, Sections 100-104, and Article 2, Sections 
201-207, State Administrative Procedure Act; Article 78, Civil Practice 
Law; Article 2, Section 31, Labor Law, Duty to Furnish Information and 
Facilitate Inspections; Article 7, Section 200, Labor Law, General Duty 
to Protect the Health and Safety of Employees, Enforcement; Article 3, 
Section 101, Labor Law, Review by Industrial Board of Appeals; Article 
2, Section 38, Labor Law, Oaths and Affidavits; Article 2, Section 39, 
Labor Law, Hearings and Subpoenas; Section 75, Civil Service Law, 
Removal and other Disciplinary Actions; Article 175, Section 30, Penal 
Law, Offering a False Instrument for Filing; Civil Service Law related 
to Merit and Hiring System; Executive Law, Article 5, Section 63.3, 
General Duties--Attorney General; and Article 28, Labor Law, Toxic 
Substances Act.
    The appendices also contain the following regulations: 12 NYCRR 
Part 800, PESH Safety and Health Standards; 12 NYCRR Part 801, 
Recordkeeping; 12 NYCRR Part 802, Inspections of Places of Public 
Employment; 12 NYCRR Part 803, Variance Regulations; 12 NYCRR Part 804, 
Petition for Modification of Abatement Date; 12 NYCRR Part 805, 
Petition for Employee Contest of Abatement Period; 12 NYCRR Part 820, 
Toxic Substances Information, Training and Education; and 12 NYCRR 
Chapter 1, Subchapter B, Parts 65 and 66, Industrial Board of Appeals, 
``Rules of Procedure and Practice.''

B. Legislation

    The plan includes legislation, the New York Public Employee Safety 
and Health Act (the ``PESH Act'') Article 2, Section 27-a of the New 
York State Labor Law, as enacted in 1980 and amended on April 17, 1984; 
August 2, 1985; May 25 and July 22, 1990; April 10, 1992; June 28, 
1993; and April 1, 1997. Pursuant to this law, the State plan provides 
coverage for all public employment in New York. The PESH Act defines 
covered employers as ``the state, any political subdivision of the 
state, a public authority or any other governmental agency or 
instrumentality thereof;'' and covered employees as ``persons permitted 
to work by an employer.'' No employees of any political subdivision of 
the State or local government, including public school employees, are 
excluded from the State plan. The PESH Act contains authority for 
standards adoption, right of entry, inspections, citations, proposed 
penalties for failure-to-abate violations, employee rights, variances, 
non-discrimination, recordkeeping and voluntary compliance programs, 
etc. The PESH Act contains three provisions which differ substantially 
from the Federal OSH Act.
    1. Penalties. Section 6 of the PESH Act establishes a penalty 
structure which provides for failure-to-abate penalties of up to $200 
per day for serious violations and $50 per day for other-than-serious 
violations. This authority, together with mandatory follow-up 
inspections and judicial enforcement, is the primary means of 
compelling the abatement of hazards by public employers under the New 
York program.
    2. Hazard Abatement Board. Sections 15 and 16 of the PESH Act 
establish a ``Hazard Abatement Board'' (the HAB) with three primary 
functions: to recommend alternate occupational safety and health 
standards to the Commissioner of Labor after holding public hearings; 
to receive, review and act upon applications for funding of capital 
projects designed to abate occupational safety and health hazards which 
have been found by the Commissioner of Labor to violate the PESH Act, 
or which have been identified in a report of the public employee 
consultation program (only local government employers are eligible for 
such funding); and to provide grants for programs designed to provide 
occupational safety and health training and education for employees. 
(The Hazard Abatement Board is independently funded by the State.)
    3. Removal of Personal Property Prior to Inspections. Section 5(e) 
of the PESH Act requires PESH to adopt regulations specific to the 
conduct of inspections in locker rooms and other areas involving 
employee personal property and privacy rights. Accordingly, PESH has 
adopted a regulation on this topic, as described in paragraph F., 
Inspections and Enforcement, below.

C. Standards

    The PESH Act, section 27-a(4)(a), mandates the adoption of all 
Federal OSHA standards as State standards. The New York plan assures 
the incorporation of any subsequent revisions or additions thereto in a 
timely manner, including in response to Federal OSHA emergency 
temporary standards. The procedure for adoption of Federal OSHA 
standards is provided in the New York State Administrative Procedures 
Act, which requires publication of the Commissioner of Labor's intent 
to adopt a standard in the New York State Register at least 45 days 
prior to such adoption. Subsequent to adoption and upon filing of the 
standard with the Secretary of State, a notice of final action is 
published in the State Register. The plan assures that permanent 
standards adopted by OSHA will be adopted by the Commissioner within 
180 days of Federal promulgation.
    Under the plan, the Commissioner of Labor, in consultation with the 
Hazard Abatement Board, or on his/her own initiative, can propose 
alternative or different occupational safety and health standards if a 
determination is made that an issue is not addressed by Federal OSHA 
standards in a manner that is appropriate for the protection of public 
employees. The New York Hazard Abatement Board (HAB) is authorized, 
after public hearings, to recommend such standards to the Commissioner 
under the PESH Act, sections 27-a.16(D)(a)-(c). The State plan provides 
for the development and consideration of expert technical information 
in the formulation of standards and allows interested persons to submit 
information requesting development or promulgation of any standard and 
to participate in any hearing for the

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development, modification or establishment of standards. In addition, 
the State Administrative Procedures Act requires public notice and 
comment for all proposed rules, and provides opportunity for public 
participation in related hearings.
    The plan includes 12 NYCRR Part 800.3, the State safety and health 
standards regulation, which codifies PESH's adoption by reference of 
all Federal OSHA safety and health standards applicable to public 
employees. New York standards are identical to the Federal standards 
with the following exceptions and additions. The State promulgated and 
retained the 1989 Permissible Exposure Limits in the Air Contaminants 
Standard, which were initially promulgated at 29 CFR 1910.1000 by 
Federal OSHA but subsequently withdrawn. In addition, the requirements 
of the PESH Hazard Communication (``HazCom'') Standard, which are 
identical to the Federal Hazard Communication Standard (29 CFR 
1910.1200), are supplemented with additional requirements, as 
applicable to public sector employers only, in the New York Toxic 
Substances Act (NYTSA) and its implementing regulations at 12 NYCRR 
Part 820. The NYTSA defines ``toxic substances'' more broadly than the 
HazCom standard and does not contain the same exemptions, such as those 
for articles or consumer products, as the HazCom standard. PESH 
monitors for compliance with the NYTSA in three areas: The posting of a 
sign; the provision of annual employee training at no-cost, during work 
hours, and in a convenient location; and the maintenance of employee 
training records. NYTSA violations are noted by PESH compliance 
officers during inspections and referred to the Attorney General for 
enforcement if not resolved. On June 7, 2006, New York enacted a new 
workplace violence prevention law applicable to public employees, which 
amends the State Labor Law and requires the Commissioner to issue 
implementing regulations. The law requires public employers to assess 
workplace violence risks and, in workplaces with 20 or more employees, 
develop and implement a written workplace violence prevention program. 
These different or additional State requirements have been reviewed and 
determined to be ``at least as effective'' as the comparable Federal 
standards.

D. Variances

    Section 8 of the PESH Act and 12 NYCRR Part 803 establish 
proceedings for the granting of permanent and temporary variances from 
State standards, which are equivalent to the Federal requirements at 29 
CFR part 1905. These provisions require employee notification of 
variance applications and provide for employee participation 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. Under the plan, all variances granted 
have only future effect and temporary variances are available only 
prior to the effective date of a standard. The procedures allow for the 
modification or revocation of permanent variances at any time after six 
months from issuance upon application by an employer, employee, 
employee representative, or by the Commissioner on his/her own motion. 
Temporary variances may not be renewed more than twice. Procedures for 
variance actions can be found in the PESH Field Operations Manual, 
Chapter VI.

E. Employee Notice and Discrimination Protection

    The plan provides for notification to employees of their 
protections and obligations under the plan by such means as the State 
``Public Employees Job Safety and Health Protection'' poster (which is 
included in the plan documents and also available electronically on the 
PESH Web site) and required posting of notices of violations. Section 
10 of the PESH Act provides for protection of employees against 
discharge or discrimination resulting from exercise of their rights 
under the State's Act in terms parallel to section 11(c) of the Federal 
Act. Complaints must be filed within thirty days after the alleged 
violation, and the complainant must be notified of the Commissioner of 
Labor's determination within ninety days of the receipt of the 
complaint. If the Commissioner determines that the provisions of 
Section 10 have been violated, the Commissioner is required to make a 
request to the New York Attorney General to bring an action in the New 
York Supreme Court. The New York Supreme Court has jurisdiction to 
restrain violations and to order all appropriate relief, including 
rehiring or reinstatement of the employee to his or her former position 
with back pay.

F. Inspections and Enforcement

    Inspection and enforcement policies and procedures provided in the 
plan are established by the PESH Act, 12 NYCRR Part 802, ``Inspections 
of Places of Public Employment,'' and the PESH Field Operations Manual. 
Complaints must be filed in writing and signed. The plan provides for 
the inspection of covered workplaces, including inspections in response 
to employee complaints, right of entry for inspections, a prohibition 
of advance notice of inspections, a mechanism for employees of the 
employer and their representatives to accompany the inspector during 
the physical inspections, and opening, informal, and closing 
conferences. A copy of the ``PESH Closing Conference'' guide, which 
fully describes the employer's rights and responsibilities at the time 
of the closing conference, is also included in the plan.
    Significant differences between Federal OSHA and PESH inspection 
and enforcement procedures include the following.
    1. Penalties. The PESH Act, section 6(a), provides for the 
assessment of civil monetary penalties for public sector employers for 
failure-to-abate violations only. If the Commissioner determines that 
an employer has violated the PESH Act, a ``Notice of Violation and 
Order to Comply'' (also called a citation) is issued which establishes 
a reasonable time for compliance and the penalty to be assessed for 
failure to correct the violation by the time fixed for compliance. An 
employer who fails to correct a violation by the time fixed for 
compliance may be assessed a penalty of up to fifty dollars per day for 
a non-serious violation, and up to two hundred dollars per day for a 
serious violation, until the violation is corrected.
    2. No Informal Complaint Procedures. The PESH Act, section 5(a), 
provides for the investigation of formal employee complaints which must 
be in writing and signed. If a determination is made that an employee 
complaint does not warrant an inspection, the complainant must be 
notified, in writing, of such determination and afforded an opportunity 
to seek informal review of the determination. New York requires all 
employee complaints to be formalized and does not have a program for 
responding to informal complaints.
    3. Citation Clearinghouse. In addition to sending citations to 
employers, copies of all citations are mailed to a ``clearinghouse'' 
which provides a copy of the citation to the headquarters of any union 
authorized to represent employees at the affected public sector 
workplace.
    4. Follow-Up Inspections. The plan provides 100% follow-up on all 
initial inspections with violations. Follow-up inspections are normally 
conducted 30 to 60 days after the latest abatement date. If a cited 
violation is found not to have been abated at the time of a follow-up 
inspection, daily failure-to-abate

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penalties are proposed and a failure-to-abate notice is issued with a 
final inspection date (or a second follow-up inspection). If a cited 
violation is found not to have been abated at the time of the second 
follow-up inspection, the case will be referred to New York Department 
of Labor Counsel. If Department of Labor Counsel is not able to 
negotiate a compliance agreement, the case would be referred for 
enforcement to the Attorney General who would seek a judicial mandamus 
action to compel abatement. (See paragraph I., Judicial Review, below). 
Once an employer corrects a failure-to-abate violation a final penalty 
bill is sent. New York penalty data is reflected in OSHA's Integrated 
Management Information System at the final penalty stage. The State 
maintains an internal data system, to which OSHA has full access, to 
calculate daily penalties on an ongoing basis.
    5. Definition of ``Catastrophe.'' PESH defines a ``catastrophe'' as 
the hospitalization of two or more employees (rather than three, as 
Federal OSHA does).
    6. Alternative Compliance Agreements. New York procedures provide 
public employers with the opportunity to request alternative means of 
compliance starting at the time of the inspection closing conference. 
This procedure is similar to OSHA's informal settlement agreement 
process. Alternative Compliance Agreement (ACA) requests are made 
through an application process with the Division of Safety and Health's 
Engineering Services Unit (ESU). If the request for an ACA agreement is 
filed prior to the abatement date, uncorrected violations are not 
assessed a penalty until the Department issues a decision on the 
alternative compliance request, and follow-up inspections are held in 
abeyance until the alternative compliance agreement is approved or 
denied. If such a request is granted, no penalty is imposed unless a 
reinspection reveals that the employer is not in compliance with the 
terms of the ACA. Requests filed after the abatement date are normally 
not accepted and must be accompanied by an explanation of extenuating 
circumstances for the delay in filing.
    7. Removal of Personal Property Prior to Inspection. In accordance 
with section 5(e) of the PESH Act, State regulations at 12 NYCRR 802.7 
permit employees to remove their personal property from the workplace 
prior to safety and health inspections and prohibit compliance officers 
from examining an employee's personal property without his or her 
permission. The State plan narrative includes an assurance that this 
provision does not provide advance notice and has not affected PESH's 
ability to conduct full and complete inspections, but that if it ever 
were to become an issue, PESH will seek to amend or remove the 
statutory and regulatory provisions.
    8. Contest Period. The period fixed in the plan for contesting 
notices of violation is 60 calendar days. (See paragraph H, ``Review 
Procedures,'' below.)
    9. Universal Orders. A universal order is defined in the PESH FOM, 
Chapter IV, D, as a citation issued to an employer citing a violation 
that exists in more than one work location under the control of that 
employer. Due to the structure and organization of the public sector, 
it is appropriate, and an effective means of gaining compliance, under 
certain circumstances to issue notices of violations requiring the 
correction of hazardous conditions at all locations under the control 
of that employer.

G. Compliance Manual

    The PESH Field Operations Manual (the PESH FOM) was last revised in 
April 2006, and is available to the public on the New York Department 
of Labor's Web site. The New York compliance manual parallels Federal 
OSHA's revised Field Operations Manual, CPL 02-00-045 [CPL 2.45B], and 
incorporates other policies parallel to Federal compliance directives 
and unique State requirements. The PESH FOM provides guidance to PESH 
compliance staff concerning general staff responsibilities, pre-
inspection procedures (including inspection scheduling and priorities, 
complaints and other unprogrammed inspections, and inspection 
preparation), inspection procedures (including conduct of the 
inspection, opening conference, closing conference, physical 
examination of the workplace, follow-up inspections, fatality/
catastrophe investigations, imminent danger investigations, and 
construction inspections), inspection documentation (including types of 
violations, violations of the general duty clause, writing citations, 
and grouping/combining violations), post-inspection procedures 
(including abatement, citations, penalties, and post-citation 
processes), discrimination investigation procedures, disclosure of 
information under the New York State Freedom of Information Law 
(including policy and procedures and specific guidelines), and outreach 
and training programs. Although not a statutory requirement, the PESH 
FOM establishes New York's policy that notices of violation will 
normally be issued to the employer within six months following the 
occurrence of the violation. New York also uses and has adopted the 
OSHA Technical Manual (TED 01-00-015 [TED 1-0.15A]), which replaced the 
former Industrial Hygiene Manual, as guidance for its staff.

H. Review Procedures

    Under the plan, both public employers and employees may seek formal 
administrative review of New York Department of Labor citations and 
penalties, as well as the reasonableness of the abatement period, 
before the Industrial Board of Appeals (IBA). Prior to contest, 
employers and employees and their authorized representatives may seek 
informal review of citations, penalties and abatement dates issued by 
the Department of Labor, by requesting an informal conference in 
writing within 20 working days from the receipt of the Notice of 
Violation and Order to Comply. If the informal conference does not 
produce agreement, the affected party may then seek formal 
administrative review with the IBA within the 60 day contest period.
    The IBA is the independent, quasi-judicial, State agency authorized 
by section 27-a.6(c) of the PESH Act to consider petitions from 
affected parties for review of the Commissioner of Labor's 
determinations pursuant to the PESH Act. Pursuant to section 27-a.6(c) 
of the PESH Act, Section 101 of the Labor Law, and the IBA's ``Rules of 
Procedure and Practice,'' 12 NYCRR Chapter 1, Subchapter B, Parts 65 
and 66, any employer, employee or other person affected by a Notice of 
Violation and Order to Comply issued by the Commissioner of Labor may 
petition the IBA for review no later than 60 calendar days after 
issuance. A contest does not automatically stay a citation, penalty or 
abatement date; a stay must be requested and granted by the IBA. If the 
contest stems from a follow-up inspection and issuance of a failure-to-
abate violation, the penalty continues to accumulate on a daily basis, 
but is deferred until the IBA decision, which would also address the 
final penalty amount. Subsequent to the Board's proceeding, any 
affected party may, within 60 days after the IBA's decision is issued, 
request judicial review of the Board's decision pursuant to section 
6(c) of the PESH Act and Article 78 of the New York Civil Practice Law.
    Pursuant to 12 NYCRR Part 805, public employees or their authorized 
representatives have the additional right to contest the abatement 
period prescribed in the Notice of Violation and Order to Comply by 
filing a petition with the Commissioner within 15

[[Page 47085]]

working days of the posting of the employer's citation, or later if 
good cause for late filing is shown. The Commissioner may grant, modify 
or deny the petition. If the Commissioner denies the petition, in whole 
or in part, the petition is automatically forwarded to the IBA for 
review. If the Commissioner modifies the abatement period, the employer 
may petition for review by the IBA under Section 101 of the Labor Law.
    Employees or employee representatives who wish to participate in 
employer-initiated proceedings before the IBA must request intervenor 
party-status, and the plan includes an assurance that should an 
employee or employee representative request such status, the State will 
appropriately inform the IBA of its support for the request. Should the 
IBA deny an employee's or employee representative's request for 
intervenor status, New York has pledged to seek immediate corrective 
action to guarantee employees' rights to party status in employer-
initiated cases.

I. Judicial Review

    Under section 6(d) of the PESH Act, if the time for compliance with 
an order of the Commissioner has elapsed without compliance, the 
Commissioner of Labor may seek judicial enforcement by commencing a 
proceeding pursuant to Article 78 of the New York Civil Practice Law. 
The Commissioner would seek such judicial enforcement, via the New York 
Attorney General, if there was a continuing failure-to-abate violation 
at the time of the second follow-up inspection and New York Department 
of Labor Counsel has been unable to obtain compliance. If the only 
noncompliance is the failure to pay a penalty, the Commissioner may 
file a duly enforceable collection action with the appropriate County 
Clerk.
    Further, in light of the fact that the length of the contest period 
(60 calendar days) is significantly longer than the 15 working day 
period allowed under the Federal program, the plan includes a March 3, 
1984, Counsel's opinion and assurance that New York has the authority 
under Article 78 of the New York Civil Practice Law to obtain judicial 
enforcement of an uncontested order to comply upon expiration of the 
abatement period, regardless of whether the 60 day contest period has 
expired. New York has also assured that should the State Labor 
Department's interpretation be successfully challenged, appropriate 
legislative correction would be sought.
    The State plan's authority for response to imminent danger includes 
``red tag'' authority which is contained in Article 7, Section 200.2 of 
the New York State Labor Law. The Commissioner has the authority to 
prohibit the use of any machinery, equipment or device in a dangerous 
condition, and to prohibit work in, or occupancy of, areas found in a 
dangerous condition, until the condition is corrected and the notice is 
removed by the Commissioner. These orders are subject to review by the 
IBA. Section 200.3 authorizes the New York Attorney General to 
institute a proceeding to enjoin the use of dangerous machinery, 
equipment, devices, or areas that have been ``tagged'' under Section 
200.2. The filing of a petition for review with the IBA does not stay 
the Attorney General's proceedings.

J. Budget and Personnel

    The plan includes the FY 2006 grant application under section 23(g) 
of the OSH Act, which includes a current organizational chart and 
detailed information on staffing and funding. The State has given 
satisfactory assurances of adequate funding to support the plan. In FY 
2006, the State plan was funded at $3,100,000 in Federal section 23(g) 
funds, $3,100,000 in matching State funds, and $992,000 in 100% State 
funds, for a total Federal and State contribution of $7,192,000. The 
program's total staffing level is 101, including 29 safety and 21 
health compliance officers, and 11 safety and 9 health public sector 
consultants funded under the State plan grant. OSHA considers PESH's 
current staffing and funding levels to be adequate and appropriate. 
PESH personnel are employed under a merit system in compliance with New 
York law and personnel rules. The plan includes the Civil Service Law 
Related to Merit and Hiring System, and job descriptions and minimum 
qualifications, by position.

K. Records and Reports

    The plan provides that public employers in New York will maintain 
appropriate records and make timely reports on occupational injuries 
and illnesses in a manner substantially identical to and ``at least as 
effective as'' that required for private sector employers under Federal 
OSHA. New York participates and has assured that it will continue its 
participation in the Bureau of Labor Statistics Annual Survey of 
Injuries and Illnesses in the public sector. The plan also contains 
assurances that the Commissioner of Labor will provide reports to OSHA 
in such form as the Assistant Secretary may require and that New York 
will continue to participate in OSHA's Integrated Management 
Information System.
    In response to OSHA's 2001 revision of its recordkeeping rules (29 
CFR part 1904; 66 FR 5916-6135), on December 21, 2001, New York revised 
its recordkeeping regulation, 12 NYCRR Part 801, and issued 
supplemental instructions, SH 901, which provide clarification and 
interpretation of the basic rule requirements. In response to OSHA's 
review, the State has modified its regulations and instructions, and 
provided several clarifications and supplemental assurances in order to 
make its requirements ``at least as effective as'' those of Federal 
OSHA. The State assures that recordkeeping activity by employees 
constitutes protected activity under the PESH Act's anti-discrimination 
provisions (February 21, 2003, letter from New York Department of Labor 
Counsel); that any administrative changes made to the SH 901 
Instructions will be published in the New York State Register for 
public comment and simultaneously shared with OSHA for review and 
comment (May 27, 2003, letter from PESH); and that the employer is 
required to provide a copy of the Annual Summary to any employee or 
authorized employee representative requesting it in accordance with 
801.35 and applicable OSHA interpretations (August 30, 2004, letter 
from PESH). Revisions to the State's recordkeeping requirements were 
adopted on May 17, 2006 and provide for the reporting of fatalities and 
multiple hospitalization incidents after working hours and on weekends 
to a designated after-hours PESH contact person and for the required 
reporting of delayed multiple hospitalizations.

L. Voluntary Compliance Programs

    The public employee consultation program makes available both 
safety consultants and industrial hygienists to public employers who 
request such service for the purpose of apprising them of existing 
hazards and the best means of abatement. The PESH public sector 
consultation manual parallels OSHA's Consultation Policies and 
Procedures Manual, TED 3.5B. The consultation program also provides 
outreach and training in support of PESH's activities. Under the plan, 
training is provided to public employers and employees, and seminars 
are conducted to familiarize affected individuals with applicable 
safety and health standards and requirements and safe work practices. 
PESH has a variety of public information programs to disseminate 
information and publications on important safety and health concerns. 
Policies and

[[Page 47086]]

procedures for Area Office outreach programs, including training, 
educational and informational services, as well as voluntary compliance 
programs, are described in the PESH Field Operations Manual.
    Through contractual agreements, the Governor's Office of Employee 
Relations requires joint management and labor health and safety 
committees in all State agencies. This requirement is independent of 
the State plan.

IV. Completion of Developmental Steps

    With the approval of the revised State plan in today's action, all 
developmental steps specified in the June 1, 1984, notice of initial 
approval of the New York public employee only State plan, and other 
relevant steps, have been successfully completed and approved as 
follows:
    A. In accordance with 29 CFR 1956.51(a), the State of New York 
promulgated standards identical to all Federal OSHA standards as of 
July 1, 1983. A supplement to the State plan documenting this 
accomplishment was initially approved by the Assistant Secretary on 
August 26, 1986 (51 FR 30449). Subsequently all OSHA standards 
promulgated through April 28, 2006, have been adopted as New York State 
standards applicable to public employees. These identical standards; 
the State's different Air Contaminants Standard (1910.1000); the 
additional hazard communication requirements in the New York Toxic 
Substances Act, as applicable to public sector employers only; and the 
State's independent Workplace Violence Prevention law are approved by 
the Assistant Secretary in today's notice.
    B. In accordance with 29 CFR 1956.51(b), New York has promulgated 
regulations for inspections, citations and abatement equivalent to 29 
CFR part 1903 at 12 NYCRR Part 802, as supplemented by the State Field 
Operations Manual, both of which are approved by the Assistant 
Secretary in today's notice.
    C. In accordance with 29 CFR 1956.51(c), the New York safety and 
health poster for public employees only, which was originally approved 
by the Assistant Secretary on May 16, 1985 (50 FR 21046), is approved, 
as revised, in today's notice.
    D. In accordance with 29 CFR 1956.51(d), the State extended its 
participation in the Bureau of Labor Statistics (BLS) Survey of 
Injuries and Illnesses to the public sector. This supplement was 
approved by the Assistant Secretary on December 29, 1989 (55 FR 1204), 
and the State's continued participation is documented in the April 28, 
2006, revised State plan, which is approved in today's notice.
    E. In accordance with 29 CFR 1956.51(e), the State promulgated 
regulations for granting variances equivalent to 29 CFR part 1905, at 
12 NYCRR Part 803, which were approved by the Assistant Secretary on 
December 29, 1989 (55 FR 1204). These regulations are contained in the 
April 28, 2006, revised State plan and are supplemented by the State's 
Field Operations Manual. These regulations and implementing procedures 
for variances are approved in today's notice.
    F. In accordance with 29 CFR 1956.51(f), the State initially 
promulgated regulations for injury/illness recordkeeping equivalent to 
29 CFR part 1904, which were approved by the Assistant Secretary on 
December 29, 1989 (55 FR 1204). In response to revisions to the Federal 
recordkeeping rule, the State's revised recordkeeping regulations at 12 
NYCRR Part 801; supplemental instructions at SH 901; and supplemental 
assurances concerning amendments to the SH 901 Instructions, after-
hours reporting of fatalities and catastrophes, required reporting of 
delayed hospitalizations, protected activity, and employee rights to 
receive a copy of the Annual Summary of workplace injuries and 
illnesses, are approved in today's notice.
    G. In accordance with 29 CFR 1956.51(g), the State developed and 
adopted employee non-discrimination procedures equivalent to 29 CFR 
Part 1977, which were approved by the Assistant Secretary on December 
29, 1989 (55 FR 1204). Updated procedures, as contained in the April 
28, 2006, revised plan, are approved in today's notice.
    H. In accordance with 29 CFR 1956.51(h), the State adopted 
procedures for the review of contested cases equivalent to 29 CFR Part 
2200, which were approved by the Assistant Secretary on December 29, 
1989 (55 FR 1204). The State's updated contested case procedures as 
found at Article 3, Section 101 of the Labor Law, and the ``Rules of 
Procedure and Practice'' of the Industrial Board of Appeals, 12 NYCRR 
Chapter 1, Subchapter B, Parts 65 and 66, are approved in today's 
notice.
    I. In accordance with 29 CFR 1956.51(i), the State revised its plan 
to reflect procedures for the development and adoption of alternative 
standards. At the time of initial approval, the State Plan provided for 
the adoption of identical OSHA safety and health standards, which 
procedures were approved by the Assistant Secretary on December 29, 
1989 (55 FR 1204). The State's current procedures for adoption of 
alternative standards provide that the Commissioner of Labor, in 
consultation with the Hazard Abatement Board, or on his/her own 
initiative, under the State Administrative Procedures Act, can propose 
alternative or different occupational safety and health standards if a 
determination is made that an issue is not properly addressed by 
Federal OSHA standards and is necessary for the protection of public 
employees. The procedures for adoption of alternative standards provide 
for consideration of expert technical information and allow interested 
persons to request the development of a standard and to participate in 
any hearings for the development or modification of standards. These 
procedures are approved in today's notice.
    J. In accordance with 29 CFR 1956.51(j), the State has developed a 
Field Operations Manual which parallels the OSHA revised Field 
Operations Manual, CPL 02-00-045 [CPL 2.45B], and incorporates other 
Federal compliance policy directives and unique State requirements. The 
State's Field Operations Manual is approved in today's notice.
    K. In accordance with 29 CFR 1956.51(k), the State adopted the 
Federal Industrial Hygiene Manual, including changes one (1) and two 
(2), through April 7, 1987, a developmental step that was approved by 
the Assistant Secretary on December 29, 1989 (55 FR 1204). The State 
subsequently replaced this manual with the OSHA Technical Manual. This 
action is approved in today's notice.
    L. In accordance with 29 CFR 1956.51(l), the State issued a 
directive implementing an on-site consultation program in the public 
sector which was approved by the Assistant Secretary on December 29, 
1989 (55 FR 1204). The State's current Consultation Policy and 
Procedures Manual and its description of New York's public sector on-
site consultation program and other compliance assistance efforts as 
contained in the April 28, 2006, revised State plan are approved in 
today's notice.
    M. In accordance with 29 CFR 1956.51(m), the State has developed 
and implemented a public employer and employee training and education 
program with procedures described in the Field Operations Manual which 
are approved in today's notice.

[[Page 47087]]

V. Decision

A. Approval of Plan Supplements

    After careful review, opportunity for State correction, and 
subsequent revision, the plan supplements constituting a New York 
revised State plan for public employees only and its components 
described above are found to be in substantial conformance with 
comparable Federal provisions and the requirements of 29 CFR part 1956 
and are hereby approved under 29 CFR part 1953 as providing a revised 
State plan for the development and enforcement of standards which is 
``at least as effective as'' the Federal program, as required by 
section 18 of the OSH Act and 29 CFR part 1956. Subpart F of 29 CFR 
part 1956 is amended to reflect the approval of the revised plan 
supplements and the satisfactory completion of all developmental steps. 
The right to reconsider this approval of the revised State plan 
supplements is reserved should substantial objections or other 
information become available to the Assistant Secretary regarding any 
components of the plan changes.

B. Certification

    With the approval of a revised State plan as noted above, all 
developmental steps have now been successfully completed, documented 
and approved. In accordance with 29 CFR 1956.23, the New York public 
employee only State plan is certified as having successfully completed 
all developmental steps. Subpart F of 29 CFR part 1956 is amended to 
reflect this certification. This certification attests to the 
structural completeness of the State plan and that it has all the 
necessary authorities and procedures to provide ``at least as 
effective'' standards, enforcement, and compliance assistance to the 
employees of New York State and its political subdivisions. This action 
renders no judgment as to the effectiveness of the State plan in actual 
operations.

VI. Location of Basic State Plan Documentation

    Copies of the revised New York State plan for public employees are 
maintained at the following locations; specific documents are available 
on the State's website or upon request. Contact the Directorate of 
Cooperative and State Programs, Office of State Programs, U.S. 
Department of Labor, Occupational Safety and Health Administration, 200 
Constitution Avenue, NW., Room N-3700, Washington, DC 20210; the Office 
of the Regional Administrator, U.S. Department of Labor, Occupational 
Safety and Health Administration, 201 Varick Street, Room 670, New 
York, New York 10014; or the New York Public Employee Safety and Health 
Program, State Office Campus Building 12, Room 158, Albany, New York 
12240.
    Components of the New York State plan, including the Field 
Operation Manual, recordkeeping regulations and instructions, complaint 
forms, and other program information are posted on the New York 
Department of Labor, Public Employee Safety and Health Web site at: 
http://www.labor.state.ny.us/workerprotection/safetyhealth/DOSH_PESH.shtm
.

    The PESH Act and other New York statutes can be found on the New 
York State Legislature's Web site at: http://public.leginfo.state.ny.us.
 The New York Industrial Board of Appeals, 

Rules of Procedure and Practice, can be found on the New York 
Department of Labor Web site at: http://www.labor.state.ny.us/iba/toc.htm.
 The State Administrative Procedures Act can be found on the 

Governor's Web site at: http://www.gorr.state.ny.us/SAPA-Text.htm.

    Electronic copies of this Federal Register notice and the related 
press release are available on OSHA's Web site, http://www.osha.gov.


VII. Public Participation

    Under 29 CFR 1953.6(c), OSHA generally ``will seek public comment 
if a State program component differs significantly from the comparable 
Federal program component and OSHA needs additional information in 
order to determine its compliance with the criteria in section 18(c) of 
the Act, including whether it is at least as effective as the Federal 
program. * * *'' Based on OSHA's review of the State laws, regulations 
and procedures that comprise the revised State plan and written 
assurances provided by the State, the Assistant Secretary finds that 
the New York revised State plan for public employees described above is 
at least as effective as Federal requirements and is consistent with 
commitments contained in the plan. Public participation for the purpose 
of providing additional information about the effectiveness of the 
structural components of the New York public employee only State plan 
is therefore unnecessary. Moreover, all legislative and regulatory 
components of the revised plan were adopted under procedural 
requirements of State law, which included appropriate opportunity for 
public participation. Good cause is therefore found for approval of 
these supplements (which constitute the revised State plan); further 
public participation would be repetitious and unnecessary.
    This document was prepared under the direction of Edwin G. Foulke, 
Jr., Assistant Secretary of Labor for Occupational Safety and Health. 
It is issued under section 18 of the Occupational Safety and Health Act 
of 1970, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR part 1956; Secretary of 
Labor's Order No. 5-2002 (67 FR 65008, October 22, 2002).

List of Subjects in 29 CFR Part 1956

    Intergovernmental relations, Law enforcement, Occupational safety 
and health, Occupational Safety and Health Administration.

    Signed in Washington, DC, this 9th day of August, 2006.
Edwin G. Foulke, Jr.,
Assistant Secretary of Labor.

0
Part 1956 of 29 CFR is hereby amended as follows:

PART 1956--[AMENDED]

0
1. Revise the authority citation of part 1956 to read as follows:

    Authority: Section 18 of the OSH Act (29 U.S.C. 667), 29 CFR 
part 1956, and Secretary of Labor's Order No. 5-2002 (67 FR 65008).


0
2. Revise Sec.  1956.50 to read as follows:


Sec.  1956.50  Description of the plan as certified.

    (a) Authority and scope. The New York State Plan for Public 
Employee Occupational Safety and Health received initial OSHA approval 
on June 1, 1984, and was certified as having successfully completed its 
developmental steps on August 16, 2006. The plan designates the New 
York Department of Labor as the State agency responsible for 
administering the plan throughout the State. The plan includes 
legislation, the New York Act (Public Employee Safety and Health Act, 
Chapter 729 of the Laws of 1980/Article 2, Section 27-a of the New York 
State Labor Law), enacted in 1980, and amended on April 17, 1984; 
August 2, 1985; May 25 and July 22, 1990; April 10, 1992; June 28, 
1993; and April 1, 1997. Under this legislation, the Commissioner of 
Labor has full authority to enforce and administer all laws and rules 
protecting the safety and health of all employees of the State and its 
political subdivisions. In response to OSHA's concern that language in 
section 27-a.2 of the New York Act, regarding the Commissioner of 
Education's authority with respect to school buildings, raised 
questions about the coverage under the plan of public school employees, 
in 1984 New York submitted amendments to its plan consisting of 
Counsel's opinion and an

[[Page 47088]]

assurance that public school employees are fully covered under the 
terms of the PESH Act.
    (b) Standards. The New York plan, as of revisions dated April 28, 
2006, provides for the adoption of all Federal OSHA standards 
promulgated as of that date, and for the incorporation of any 
subsequent revisions or additions thereto in a timely manner, including 
in response to Federal OSHA emergency temporary standards. The 
procedure for adoption of Federal OSHA standards calls for publication 
of the Commissioner of Labor's intent to adopt a standard in the New 
York State Register 45 days prior to such adoption. Subsequent to 
adoption and upon filing of the standard with the Secretary of State, a 
notice of final action will be published as soon as is practicable in 
the State Register. The plan also provides for the adoption of 
alternative or different occupational safety and health standards if a 
determination is made by the State that an issue is not properly 
addressed by OSHA standards and is relevant to the safety and health of 
public employees. In such cases, the Commissioner of Labor will develop 
an alternative standard to protect the safety and health of public 
employees in consultation with the Hazard Abatement Board, or on his/
her own initiative. The procedures for adoption of alternative 
standards contain criteria for consideration of expert technical advice 
and allow interested persons to request development of any standard and 
to participate in any hearing for the development or modification of 
standards.
    (c) Variances. The plan includes provisions for the granting of 
permanent and temporary variances from State standards in terms 
substantially similar to the variance provisions contained in the 
Federal program. The State provisions require employee notification of 
variance applications and provide for employee participation 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, and variances may have only future 
effect.
    (d) Employee notice and discrimination protection. The plan 
provides for notification to employees of their protections and 
obligations under the plan by such means as a State poster and required 
posting of notices of violations. The plan also provides for protection 
of employees against discharge or discrimination resulting from 
exercise of their rights under the State's Act in terms essentially 
identical to section 11(c) of the OSH Act.
    (e) Inspections and enforcement. The plan provides for inspection 
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 shall be notified, in 
writing, of such determination and afforded an opportunity to seek 
informal review of the determination. The plan provides the opportunity 
for employer and employee representatives to accompany the inspector 
during an inspection for the purpose of aiding in the inspection. The 
plan also provides for right of entry for inspection and a prohibition 
of advance notice of inspection. In lieu of first-instance monetary 
sanctions for violations, the plan establishes a system for compelling 
compliance under which public employers are issued notices of violation 
and orders to comply. Such notices fix a reasonable period of time for 
compliance. If compliance is not achieved by the time of a follow-up 
inspection, daily failure-to-abate penalties of up to $50 for non-
serious violations and up to $200 for serious violations, will be 
proposed. The Commissioner of Labor may seek judicial enforcement of 
orders to comply by commencing a proceeding pursuant to Article 78 of 
the New York Civil Practice Law. In addition, the plan provides for 
expedited judicial enforcement when non-compliance is limited to non-
payment of penalties.
    (f) Review procedures. Under the plan, public employers and 
employees may seek formal administrative review of New York Department 
of Labor citations, including penalties and the reasonableness of the 
abatement periods, by petitioning the New York Industrial Board of 
Appeals (IBA) no later than 60 days after the issuance of the citation. 
The IBA is the independent State agency authorized by section 27-
a(6)(c) of the New York Act to consider petitions from affected parties 
for review of the Commissioner of Labor's determinations. A contest 
does not automatically stay a notice of violation, penalty or abatement 
date; a stay must be granted from the IBA. Judicial review of any 
decision of the IBA may be sought pursuant to Article 78 of the New 
York Civil Practice Law. Prior to contest, employers, employees and 
other affected parties may seek informal review of citations, penalties 
and abatement dates by the Department of Labor by requesting an 
informal conference in writing within 20 working days from the receipt 
of citation. If the informal conference does not produce agreement, the 
affected party may seek formal administrative review with the IBA. 
Public employees or their authorized representatives have the 
additional right under 12 NYCRR Part 805 to contest the abatement 
period by filing a petition with the Commissioner within 15 working 
days of the posting of the citation by filing a petition with the 
Department of Labor, or later if good cause for late filing is shown. 
If the Commissioner denies the employee contest of abatement period 
under Part 805 in whole or in part, the complaint will automatically be 
forwarded to the IBA for review. Under the IBA rules, public employees 
or their representatives may request permission to participate in an 
employer-initiated review process as ``intervenors.'' The plan includes 
an April 28, 2006, assurance that should an employee or employee 
representative request intervenor status in an employer-initiated case, 
the State will appropriately inform the IBA of its support for the 
request. Should an employee's or employee representative's request for 
participation be denied, the State will seek immediate corrective 
action to guarantee the right to employee party status in employer-
initiated cases. The period fixed in the plan for contesting notices of 
violation is 60 calendar days, which is significantly longer than the 
15 working day period allowed under the Federal OSHA program. However, 
New York has provided assurance, by Counsel's opinion of March 3, 1984, 
that it has the authority under Article 78 of the New York Civil 
Practice Law to obtain judicial enforcement of an uncontested order to 
comply upon expiration of the abatement period, regardless of whether 
the 60 day contest period has expired. New York has also assured that 
should the State Labor Department's interpretation be successfully 
challenged, appropriate legislative correction would be sought.
    (g) Staffing and resources. The plan as revised April 28, 2006, 
provides assurances of a fully trained, adequate staff, including 29 
safety and 21 health compliance officers for enforcement inspections 
and 11 safety and 9 health consultants to perform consultation services 
in the public sector. The State has also given satisfactory assurances 
of continued adequate funding to support the plan.
    (h) Records and reports. The plan provides that public employers in 
New York will maintain appropriate records and make timely reports on 
occupational injuries and illnesses in a manner substantially identical 
to that required for private sector employers under Federal OSHA. New 
York has

[[Page 47089]]

assured that it will continue its participation in the Bureau of Labor 
Statistics Annual Survey of Injuries and Illnesses in the public 
sector. The plan also contains assurances that the Commissioner of 
Labor will provide reports to OSHA in such form as the Assistant 
Secretary may require, and that New York will participate in OSHA's 
Integrated Management Information System.
    (i) Voluntary compliance programs. The plan provides for training 
for public employers and employees; seminars to familiarize affected 
public employers and employees with applicable standards, requirements 
and safe work practices; and an on-site consultation program in the 
public sector to provide services to public employers upon request.

0
3. Revise Sec.  1956.52 to read as follows:


Sec.  1956.52  Completed developmental steps and certification.

    (a) In accordance with 29 CFR 1956.51(a), the State of New York 
promulgated standards identical to all Federal OSHA standards as of 
July 1, 1983. A supplement to the State plan documenting this 
accomplishment was initially approved by the Assistant Secretary on 
August 26, 1986 (51 FR 30449). Subsequently, all OSHA standards 
promulgated through April 28, 2006, have been adopted as New York State 
standards applicable to public employees. These identical standards; 
the State's different Air Contaminants Standard (1910.1000); the 
additional hazard communication requirements, as applicable to public 
sector employers only, in the New York Toxic Substances Act; and the 
State's independent Workplace Violence Prevention law, were approved by 
the Assistant Secretary on August 16, 2006.
    (b) In accordance with 29 CFR 1956.51(b), New York has promulgated 
regulations for inspections, citations and abatement equivalent to 29 
CFR part 1903 at 12 NYCRR Part 802 and implementing procedures in the 
State compliance manual, as contained in the State's April 28, 2006, 
revised plan, which were approved by the Assistant Secretary on August 
16, 2006.
    (c) In accordance with 29 CFR 1956.51(c), the New York safety and 
health poster for public employees only, which was originally approved 
by the Assistant Secretary on May 16, 1985 (50 FR 21046), was approved, 
as contained in the State's April 28, 2006, revised plan, by the 
Assistant Secretary on August 16, 2006.
    (d) In accordance with 29 CFR 1956.51(d), the State extended its 
participation in the Bureau of Labor Statistics (BLS) Survey of 
Injuries and Illnesses to the public sector. A supplement documenting 
this action was approved by the Assistant Secretary on December 29, 
1989 (55 FR 1204) and is contained in the State's April 28, 2006, 
revised plan, which was approved by the Assistant Secretary on August 
16, 2006.
    (e) In accordance with 29 CFR 1956.51(e), the State promulgated 
regulations for granting variances equivalent to 29 CFR part 1905 at 12 
NYCRR Part 803, which were approved by the Assistant Secretary on 
December 29, 1989 (55 FR 1204). These regulations, as revised and 
supplemented by implementing procedures in the State's Field Operations 
Manual, are contained in the April 28, 2006, revised State plan, and 
were approved by the Assistant Secretary on August 16, 2006.
    (f) In accordance with 29 CFR 1956.51(f), the State initially 
promulgated regulations for injury/illness recordkeeping, equivalent to 
29 CFR part 1904, which were approved by the Assistant Secretary on 
December 29, 1989 (55 FR 1204). The State's revised recordkeeping 
regulation, 12 NYCRR Part 801; corresponding instructions (SH 901); and 
supplemental assurances concerning amendments to the SH 901 
Instructions, after-hours reporting of fatalities and catastrophes, 
required reporting of delayed hospitalizations, protected activity, and 
employee rights to receive a copy of the Annual Summary of workplace 
injuries and illnesses, are contained in the April 28, 2006, revised 
plan, and were approved by the Assistant Secretary on August 16, 2006.
    (g) In accordance with 29 CFR 1956.51(g), the State developed and 
adopted employee non-discrimination procedures equivalent to 29 CFR 
part 1977, which were approved by the Assistant Secretary on December 
29, 1989 (55 FR 1204). Updated procedures, as contained in the April 
28, 2006, revised plan, were approved by the Assistant Secretary on 
August 16, 2006.
    (h) In accordance with 29 CFR 1956.51(h), the State adopted 
procedures for the review of contested cases equivalent to 29 CFR part 
2200, which were approved by the Assistant Secretary on December 29, 
1989 (55 FR 1204). The State's contested case procedures at Section 101 
of the Labor Law; the ``Rules of Procedure and Practice'' of the 
Industrial Board of Appeals, 12 NYCRR Chapter 1, Subchapter B, Parts 65 
and 66; and 12 NYCRR 805, as contained in the April 28, 2006, revised 
plan, were approved by the Assistant Secretary on August 16, 2006.
    (i) In accordance with 29 CFR 1956.51(i), the State revised its 
plan to reflect its procedures for the adoption of State standards 
identical to OSHA safety and health standards, which were approved by 
the Assistant Secretary on December 29, 1989 (55 FR 1204). 
Subsequently, the State's procedures were revised to provide that the 
Commissioner of Labor, in consultation with the Hazard Abatement Board, 
or on his/her own initiative, can propose alternative or different 
occupational safety and health standards if a determination is made 
that an issue is not properly addressed by Federal OSHA standards and 
is necessary for the protection of public employees. The procedures for 
adoption of alternative standards contain criteria for development and 
consideration of expert technical knowledge in the field to be 
addressed by the standard and allow interested persons to submit 
information requesting development or promulgation of any standard and 
to participate in any hearing for the development, modification or 
establishment of standards. These procedures are contained in the April 
28, 2006, revised plan, and were approved by the Assistant Secretary on 
August 16, 2006.
    (j) In accordance with 29 CFR 1956.51(j), the State has developed a 
Field Operations Manual which parallels Federal OSHA's Field Operations 
Manual, CPL 02-00-045 [CPL 2.45B], incorporates other Federal 
compliance policy directives, and contains procedures for unique State 
requirements. This manual is contained in the April 28, 2006, revised 
plan, and was approved by the Assistant Secretary on August 16, 2006.
    (k) In accordance with 29 CFR 1956.51(k), the State adopted the 
Federal Industrial Hygiene Manual, including changes one (1) and two 
(2), through April 7, 1987, which was approved by the Assistant 
Secretary on December 29, 1989 (55 FR 1204). The State's subsequent 
adoption of the OSHA Technical Manual is documented in the April 28, 
2006, revised State plan and was approved by the Assistant Secretary on 
August 16, 2006.
    (l) In accordance with 29 CFR 1956.51(l), the State issued a 
directive implementing an on-site consultation program in the public 
sector, which was approved by the Assistant Secretary on December 29, 
1989 (55 FR 1204). The State's current Consultation Policy and 
Procedures Manual and its description of New York's on-site 
consultation program and other compliance

[[Page 47090]]

assistance efforts, as contained in the April 28, 2006, revised plan, 
were approved by the Assistant Secretary on August 16, 2006.
    (m) In accordance with 29 CFR 1956.51(m), the State has developed 
and implemented a public employer and employee training and education 
program with procedures described in the Field Operations Manual, 
which, as contained in the April 28, 2006, revised plan, was approved 
by the Assistant Secretary on August 16, 2006.
    (n) A revised State plan as submitted on April 28, 2006, was 
approved and in accordance with 29 CFR 1956.23 of this chapter, the New 
York occupational safety and health State plan for public employees 
only was certified on August 16, 2006 as having successfully completed 
all developmental steps specified in the plan as initially approved on 
June 1, 1984. This certification attests to the structural completeness 
of the plan, but does not render judgment as to adequacy of 
performance.


Sec.  1956.53  [Removed and reserved]

0
4. Remove the section heading and reserve Sec.  1956.53.

0
5. Revise Sec.  1956.54 to read as follows:


Sec.  1956.54  Location of basic State plan documentation.

    Copies of basic State plan documentation are maintained at the 
following locations. Specific documents are available upon request, and 
will also be provided in electronic format, to the extent possible. 
Contact the Directorate of Cooperative and State Programs, Office of 
State Programs, U.S. Department of Labor, Occupational Safety and 
Health Administration, 200 Constitution Avenue, NW., Room N-3700, 
Washington, DC 20210; Office of the Regional Administrator, U.S. 
Department of Labor, Occupational Safety and Health Administration, 201 
Varick Street, Room 670, New York, New York 10014; and the New York 
Department of Labor, Public Employee Safety and Health Program, State 
Office Campus Building 12, Room 158, Albany, New York 12240. Current 
contact information for these offices (including telephone numbers and 
mailing addresses) is available on OSHA's Web site, http://www.osha.gov
.



Sec.  1956.55  [Removed and reserved]

0
6. Remove and reserve Sec.  1956.55.

 [FR Doc. E6-13504 Filed 8-15-06; 8:45 am]

BILLING CODE 4510-26-P
