[Code of Federal Regulations]
[Title 29, Volume 9]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1975.5]

[Page 190-191]
 
                             TITLE 29--LABOR
 
CHAPTER XVII--OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT 
                          OF LABOR (CONTINUED)
 
PART 1975_COVERAGE OF EMPLOYERS UNDER THE WILLIAMS-STEIGER OCCUPATIONAL 
SAFETY AND HEALTH ACT OF 1970--Table of Contents
 
Sec. 1975.5  States and political subdivisions thereof.

    (a) General. The definition of the term ``employer'' in section 3(5) 
of the Act excludes the United States and States and political 
subdivisions of a State:

    (5) The term ``employer'' means a person engaged in a business 
affecting commerce who has employees, but does not include the United 
States or any State or political subdivision of a State.


The term ``State'' is defined as follows in section 3(7) of the Act:

    (7) The term ``State'' includes a State of the United States, the 
District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, 
Guam, and the Trust Territory of the Pacific Islands.


Since States, as defined in section 3(7) of the Act, and political 
subdivisions thereof are not regarded as employers under section 3(5) of 
the Act, they would not be covered as employers under the Act, except to 
the extent that section 18(c)(6), and the pertinent regulations 
thereunder, require as a condition of approval by the Secretary of Labor 
of a State plan that such plan:

    (6) Contain[s] satisfactory assurances that such State will, to the 
extent permitted by its law, establish and maintain an effective and 
comprehensive occupational safety and health program applicable to all 
employees of public agencies of the State and its political 
subdivisions, which program is as effective as the standards contained 
in an approved plan.

    (b) Tests. Any entity which has been (1) created directly by the 
State, so as to constitute a department or administrative arm of the 
government, or (2) administered by individuals who are controlled by 
public officials and responsible to such officials or to the general 
electorate, shall be deemed to be a ``State or political subdivision 
thereof'' under section 3(5) of the Act and, therefore, not within the 
definition of employer, and, consequently, not subject to the Act as an 
employer.
    (c) Factors for meeting the tests. Various factors will be taken 
into consideration in determining whether an entity meets the test 
discussed above. Some examples of these factors are:

    Are the individuals who administer the entity appointed by a public 
official or elected by the general electorate?
    What are the terms and conditions of the appointment?
    Who may dismiss such individuals and under what procedures?
    What is the financial source of the salary of these individuals?
    Does the entity earn a profit? Are such profits treated as revenue?
    How are the entity's functions financed? What are the powers of the 
entity and are they usually characteristic of a government rather than a 
private instrumentality like the power of eminent domain?
    How is the entity regarded under State and local law as well as 
under other Federal laws?
    Is the entity exempted from State and local tax laws?
    Are the entity's bonds, if any, tax-exempt? As to the entity's 
employees, are they regarded like employees of other State and political 
subdivisions?
    What is the financial source of the employee-payroll?
    How do employee fringe benefits, rights, obligations, and 
restrictions of the entity's employees compare to those of the employees 
of other State and local departments and agencies?


In evaluating these factors, due regard will be given to whether any 
occupational safety and health program exists to protect the entity's 
employees.
    (d) Weight of the factors. The above list of factors is not 
exhaustive and no factor, isolated from the particular facts of a case, 
is assigned any particular weight for the purpose of a determination by 
the Secretary of Labor as to whether a given entity is a ``State or 
political subdivision of a State'' and, as such, not subject to the Act 
as an ``employer''. Each case must be viewed on its merits; and whether 
a single factor will be decisive, or whether the factors must be viewed 
in their

[[Page 191]]

relationship to each other as part of a sum total, also depends on the 
merits of each case.
    (e) Examples. (1) The following types of entities would normally be 
regarded as not being employers under section 3(5) of the Act: the State 
Department of Labor and Industry; the State Highway and Motor Vehicle 
Department; State, county, and municipal law enforcement agencies as 
well as penal institutions; State, county, and municipal judicial 
bodies; State University Boards of Trustees; State, county, and 
municipal public school boards and commissions; and public libraries.
    (2) Depending on the facts in the particular situation, the 
following types of entities would probably be excluded as employers 
under section 3(5) of the Act: harbor districts, irrigation districts, 
port authorities, bi-State authorities over bridges, highways, rivers, 
harbors, etc.; municipal transit entities; and State, county, and local 
hospitals and related institutions.
    (3) The following examples are of entities which would normally not 
be regarded as a ``State or political subdivision of a State'', but 
unusual factors to the contrary in a particular case may indicate 
otherwise: Public utility companies, merely regulated by State or local 
bodies; businesses, such as alcoholic beverage distributors, licensed 
under State or local law; other business entities which under agreement 
perform certain functions for the State, such as gasoline stations 
conducting automobile inspections for State and county governments.