2011-26262. Michigan State Plan; Change in Level of Federal Enforcement: Indian Tribes

AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Final rule.

SUMMARY:

This document gives notice of OSHA's approval of a change to the state of Michigan's occupational safety and health state plan to exclude coverage of establishments on Indian reservations which are owned or operated by employers who are enrolled members of Indian tribes. Under the terms of a September 28, 2004 addendum to the September 24, 1973 Operational Status Agreement between OSHA and the Michigan Occupational Safety and Health Administration (MIOSHA), jurisdiction and enforcement have been relinquished back to federal OSHA for conducting safety and health inspections and interventions within the borders of all Indian reservations for employers who are “enrolled members of Indian reservations”, i.e., members of Indian tribes. Non-member employers within the reservations and member employers located outside the territorial borders of Indian reservations remain under MIOSHA jurisdiction. Accordingly, OSHA amends its regulations to reflect this change in the level of federal enforcement.

DATES:

Effective Date: October 12, 2011.

FOR FURTHER INFORMATION CONTACT:

Press inquiries: Frank Meilinger, Office of Communications, OSHA, U.S. Department of Labor, Room N-3647, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: [phone]. General Information and Technical Inquiries: Laura Seeman, Acting Director, Office of State Programs, Directorate of Cooperative and State Programs, Room N-3700, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone [phone]. An electronic copy of this Federal Register notice is available on OSHA's Web site at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

A. Background

Section 18 of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. 667, provides that states which wish to assume responsibility for developing and enforcing their own occupational safety and health standards may do so by submitting, and obtaining federal approval of, a state plan. Part 1954 of title 29, Code of Federal Regulations, sets out procedures under section 18 of the Act for the evaluation and monitoring of state plans which have been approved under section 18(c) of the Act and 29 CFR part 1902. After initial approval, but prior to final approval, section 18(e) of the Act provides for a period of concurrent jurisdiction.

The Michigan Occupational Safety and Health State Plan was initially approved on September 24, 1973 (38 FR 27388, Oct. 3, 1973). The Michigan program is administered by the Michigan Occupational Safety and Health Administration (MIOSHA) in the Department of Licensing and Regulatory Affairs, previously the Department of Labor and Economic Growth. Prior to 2003, the state plan agency was called the Bureau of Safety and Regulation, Department of Consumer and Industry Services.

If federal monitoring shows that a state program has developed to a degree sufficient to justify suspension of duplicative concurrent federal enforcement activity, U.S. Department of Labor regulations provide that OSHA, through its Regional Administrator, may enter into a procedural agreement (and addenda to such agreements) with the state, usually referred to as an “operational status agreement”, setting forth areas of federal and state enforcement responsibility (29 CFR 1954.3(f)).

On January 6, 1977, an Operational Status Agreement was entered into between OSHA and the Michigan State Plan agency whereby concurrent federal enforcement authority was suspended with regard to most federal occupational safety and health standards in issues covered by the state's OSHA-approved occupational safety and health plan. Federal OSHA retained its authority over safety and health in private sector maritime employment and with regard to federal government employers and employees, and employees of the U.S. Postal Service (effective June 9, 2000).

On July 18, 2001, Ms. Kathleen M. Wilbur, Director of the Michigan Department of Consumer and Industry Services (now the Michigan Department of Licensing and Regulatory Affairs), first wrote to the OSHA Regional Administrator about the issue of jurisdiction of the Michigan Bureau of Safety and Regulation (now the Michigan Occupational Safety and Health Administration) on Indian reservations. MIOSHA and the Michigan Attorney General's Office had reached the legal conclusion that MIOSHA, as a state operating under authority of state law, pursuant to a federally approved state plan, did not have authority to inspect and apply MIOSHA statutory and regulatory requirements to Indian-owned and Indian-operated businesses within the territorial borders of Indian reservations. The state reached the conclusion at that time that, with respect to non-Indian owned businesses operating on Indian reservations, the provisions of MIOSHA would apply.

Subsequently, on September 28, 2004, an addendum to the state's Operational Status Agreement between federal OSHA and MIOSHA was signed. This addendum stated that MIOSHA relinquished to federal OSHA the jurisdiction and enforcement authority for conducting safety and health inspections and interventions within the borders of all Indian reservations for employers who are enrolled members of Indian tribes. The addendum also provided that non-member employers within Indian reservations and member employers located outside the territorial borders of Indian reservations remain under MIOSHA jurisdiction. Accordingly, notice is hereby given of this change in federal enforcement authority with regard to employers on Indian land in the state of Michigan. OSHA is also amending its description of the approved state plan at 29 CFR part 1952, Subpart T to reflect this change in the level of federal enforcement.

B. Obtaining Copies of Referenced Documents

A copy of the documents referenced in this notice may be obtained from: Office of State Programs, Directorate of Cooperative and State Programs, Occupational Safety and Health Administration, Room N3700, 200 Constitution Avenue, NW., Washington, DC 20210, [phone], fax [phone]; Office of the Regional Administrator, Occupational Safety and Health Administration, 230 S. Dearborn Street, 32nd Floor, Room 3244, Chicago, Illinois 60604, [phone], fax [phone]; and the Michigan Occupational Safety and Health Administration, P.O. Box 30643, 7150 Harris Drive, Lansing, Michigan 48909, [phone], fax [phone]. Other information about the Michigan State Plan is posted on the state's Web site at http://www.michigan.gov/​miosha. Electronic copies of this Federal Register notice are available on OSHA's Web site at http://www.osha.gov/​.

C. Administrative Procedure

This Federal Register document acknowledges a modification made by the state of Michigan to its occupational safety and health state plan, and does not involve any regulatory action by federal OSHA. States with approved plans have authority to modify the statutes, regulations, and procedures in their plan, using procedures provided under state law. These state plan modifications have legal effect in the state as soon as they are adopted; pre-enforcement approval by federal OSHA is not required. 29 CFR 1953.3(a); see Florida Citrus Packers v. California, 545 F. Supp. 216, 219 (N.D. Cal. 1982).

The attached Federal Register notice is designated a “final rule.” That designation is necessary because OSHA publishes a general description of every state plan in 29 CFR part 1952. Because they are set forth in the Code of Federal Regulation, these descriptions can be updated only by publishing a “final rule” document in the final rules section of the Federal Register. Such rules do not contain any new federal regulatory requirements, but merely provide public information about changes already in effect under state law. Michigan's determination that certain Indian-owned establishments are not subject to coverage under the state's plan is the result of limitations already in effect under that state's law. The present Federal Register notice simply provides information to the public concerning this limitation.

For this reason, public notice and comment are unnecessary, and good cause exists for making this final rule effective upon publication in the Federal Register. Accordingly, OSHA finds that public participation is unnecessary, and this notice of approval is effective upon publication in the Federal Register.

List of Subjects in 29 CFR Part 1952

• Indian tribes
• Intergovernmental relations
• Law enforcement
• Occupational safety and health

Signed at Washington, DC, on September 26, 2011.

David Michaels,

Assistant Secretary of Labor for Occupational Safety and Health.

Part 1952 of 29 CFR is hereby amended as follows:

PART 1952—[AMENDED]

1. The authority section for Part 1952 continues to read as follows:

Authority: Section 18 of the OSH Act (29 U.S.C. 667), 29 CFR Part 1902, and Secretary of Labor's Order No. 5-2002 (67 FR 65008).

Subpart T—Michigan

2. In § 1952.265 remove the third sentence and add two sentences in its place to read as follows:

§ 1952.265

Level of Federal enforcement.

* * * Federal OSHA will also retain authority for coverage of Federal government employers and employees; and of the U.S. Postal Service (USPS), including USPS employees, and contract employees and contractor-operated facilities engaged in USPS mail operations; and of employers who own or operate businesses located within the boundaries of Indian reservations who are enrolled members of Indian tribes. (Non-Indian employers within the reservations and Indian employers outside the territorial boundaries of Indian reservations remain subject to Michigan jurisdiction.). * * *