[Federal Register Volume 59, Number 60 (Tuesday, March 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7254]
[[Page Unknown]]
[Federal Register: March 29, 1994]
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DEPARTMENT OF LABOR
29 CFR Part 1952
[Docket No. T-025]
New Mexico State Plan: Proposed Revision to State Staffing
Benchmarks; Request for Comments
AGENCY: Department of Labor, Occupational Safety and Health
Administration (OSHA).
ACTION: Proposed revision to State compliance staffing benchmarks;
request for written comments.
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SUMMARY: This document gives notice of the proposed revision of
compliance staffing benchmarks applicable to the New Mexico State plan.
New Mexico's benchmarks were originally established in April 1980 in
response to the U.S. Court of Appeals decision in AFL-CIO v. Marshall,
570 F. 2d 1030 (D.C. Cir. 1978). The State of New Mexico has
reconsidered the information utilized in the development of its 1980
benchmarks and determined that changes in local conditions and improved
inspection data warrant revision of its benchmarks. OSHA is soliciting
written public comments to afford interested persons an opportunity to
present their views regarding whether or not the revised benchmarks for
New Mexico should be approved.
DATES: Written comments must be received by May 3, 1994.
ADDRESSES: Written comments should be submitted, in quadruplicate, to
the Docket Officer, Docket No. T-025, U.S. Department of Labor, room N-
2625, 200 Constitution Avenue, NW., Washington, DC 20210, (202) 219-
7894.
FOR FURTHER INFORMATION CONTACT: James Foster, Director, Office of
Information and Consumer Affairs, Occupational Safety and Health
Administration, U.S. Department of Labor, room N-3637, 200 Constitution
Avenue, NW., Washington, DC 20210, (202) 219-8148.
SUPPLEMENTARY INFORMATION:
Background
Section 18 of the Occupational Safety and Health Act of 1970 (``the
Act,'' 29 U.S.C. 651 et seq.) provides that States which desire to
assume responsibility for developing and enforcing occupational safety
and health standards may do so by submitting, and obtaining Federal
approval of, a State plan. Section 18(c) of the Act sets forth the
statutory criteria for plan approval, and among these criteria is the
requirement that the State's plan provide satisfactory assurances that
the state agency or agencies responsible for implementing the plan have
``* * * the qualified personnel necessary for the enforcement of * * *
standards,'' 29 U.S.C. 667(c)(4).
A 1978 decision of the U.S. Court of Appeals and the resultant
implementing order issued by the U.S. District Court for the District
of Columbia (AFL-CIO v. Marshall, C.A. No. 74-406) interpreted this
provision of the Act to require States operating approved State plans
to have sufficient compliance personnel necessary to assure a ``fully
effective'' enforcement effort. The Assistant Secretary of Labor for
Occupational Safety and Health (the Assistant Secretary) was directed
to establish ``fully effective'' compliance staffing levels, or
benchmarks, for each State plan.
In 1980 OSHA submitted a Report to the Court containing these
benchmarks and requiring New Mexico to allocate 11 safety and 17 health
compliance personnel to conduct inspections under the plan. Attainment
of the 1980 benchmark levels or subsequent revision thereto is a
prerequisite for State plan final approval consideration under section
18(e) of the Act.
Both the 1978 Court Order and the 1980 Report to the Court
explicitly contemplate subsequent revisions to the benchmarks in light
of more current data, including State-specific information, and other
relevant considerations. In August 1983 OSHA, together with State plan
representatives, initiated a comprehensive review and revision of the
1980 benchmarks. A complete discussion of both the 1980 benchmarks and
the present revision system process is set forth in the January 16,
1985 Federal Register (50 FR 2491) regarding the Wyoming occupational
safety and health plan.
The New Mexico plan, which was granted initial State plan approval
on December 10, 1975 (40 FR 57456), is administered by the Occupational
Health and Safety Bureau of the New Mexico Environment Department.
Concurrent Federal enforcement jurisdiction was suspended in New Mexico
with the publication of an Operational Status Agreement on June 11,
1982 (47 FR 25326). The plan was certified has having satisfactorily
completed all of its developmental commitments on December 17, 1984 (49
FR 48918).
Proposed Revision of Benchmarks
In May 1992, the New Mexico Environment Department (the designated
agency or ``designee'' in the State) completed, in conjunction with
OSHA, a review of the compliance staffing benchmarks approved for New
Mexico in 1980. In accord with the formula and general principles
established by the joint Federal/State task group for the revision of
the 1980 benchmarks, New Mexico reassessed the staffing necessary for a
``fully effective'' occupationsl safety and health program in the
State. This reassessment resulted in a proposal, contained in
supporting documents, of revised staffing benchmarks of 7 safety and 3
health compliance officers.
The proposed revised safety benchmark contemplates biennial general
schedule inspection of all private sector manufacturing establishments
with greater than 10 employees (based upon a computerized summary
utilizing the 1981 Unemployment Insurance Listing of Employers for New
Mexico) in Standard Industrial Classifications whose Lost Workday Case
Injury Rate is higher than the overall State private sector rate (as
determined by the Bureau of Labor Statistics' (BLS) Annual Occupational
Injury and Illness Survey). Data indicate that the State is spending an
average of 12 hours on such inspections, and each State safety
inspector is able to devote 1,656 hours annually to actual inspection
activity based on State personnel practices. Establishments have been
added to this initial general inspection universe based on the State's
analysis of past injury and inspection experience to identify those
employers or groups of employers most likely to have hazards that could
be eliminated by inspection. In addition, inspection resources are
allocated to coverage of mobile and public employee (State and local
government) work sites, response to complaints and accidents, and
follow-up inspections to ascertain compliance, based upon recent
historical experience and an assessment of proper safety coverage in
the State of New Mexico.
The proposed revised health benchmark contemplates general schedule
inspection coverage once every three years of all private sector
manufacturing establishments with greater than 10 employees (based upon
a computerized summary utilizing the 1981 Unemployment Insurance
Listing of Employers for New Mexico) in the 150 Standard Industrial
Classifications (SICs) in the State having the highest likelihood of
exposure to health hazards. These SICs are determined by a health
ranking system utilizing data from the National Occupational Hazards
Survey (NOHS), as published in 1977, which assesses the potency and
toxicity of substances in use in the State. The State has historically
spent an average 25 hours on such inspections, and each health
compliance officer is able to devote 1,656 hours annually to actual
inspection activity, based upon State personnel practices.
Establishments have been added to this initial general schedule
universe based on the State's knowledge gained from inspection
experience and other data on the extent of employee exposure to and use
of toxic substances and harmful physical agents by individual employers
or groups of employers, and the extent to which hazardous exposures can
be eliminated by inspection. In addition, inspection resources are
allocated to coverage of mobile and public employee (State and local
government) work sites, response to complaints and accidents, and
follow-up inspections to ascertain compliance, based on recent
historical experience and an assessment of proper health coverage in
the State of New Mexico.
OSHA has reviewed the State's proposed revised benchmarks and
supporting documentation, prepared a narrative describing the State's
submission, and determined that the proposed compliance staffing levels
appear to meet the requirements of the Court in AFL-CIO v. Marshall and
provide staff sufficient to ensure a ``fully effective enforcement
program.''
Effect of Benchmark Revision
Consistent with the 1978 Court Order in AFL-CIO v. Marshall and the
procedures for implementation of benchmarks described by OSHA in the
1980 Report to the Court, if the proposed revised benchmarks are
approved by OSHA, the State must allocate a sufficient number of safety
and health enforcement staff to meet the revised benchmarks in order to
be eligible for final approval under section 18(e) of the Act. Approval
of the revised benchmarks would be accompanied by an amendment to 29
CFR part 1952, subpart DD, which generally describes the New Mexico
plan and sets forth the State's revised safety and health benchmark
levels.
Documents of Record
A comprehensive document containing the proposed revision to New
Mexico's benchmarks, including a narrative of the State's submission
and supporting statistical data has been made a part of the record in
this proceeding and is available for public inspection and copying at
the following locations:
Docket Office, Docket No. T-25, U.S. Department of Labor, room N-
2625, 200 Constitution Avenue, NW., Washington, DC 20210.
Regional Administrator--Region VI, U.S. Department of Labor--OSHA,
room 602, 525 Griffin Street, Dallas, Texas 75202.
New Mexico Environment Department, Occupational Safety and Health
Bureau, 1190 St. Francis Drive, Santa Fe, New Mexico 87502.
In addition, to facilitate informed public comment, an
informational record has been established in a separate docket (No. T-
018) containing background information relevant to the benchmark issue
in general and the current benchmark revision process. This information
docket includes, among other material, the 1978 Court of Appeals
decision in AFL-CIO v. Marshall, the 1978 implementing Court Order, the
1980 Report to the Court, and a report describing the 1983-1984
benchmark revision process. It is also available for public inspection
and copying at the following location:
Docket Office, Docket No. T-018, U.S. Department of Labor, room N-
2625, 200 Constitution Avenue, NW., Washington, DC 20210.
Public Participation
OSHA is soliciting public participation in its consideration of the
approval of the revised New Mexico benchmarks to assure that all
relevant information, views, data and arguments are available to the
Assistant Secretary during this proceeding. Members of the public are
invited to submit written comments in relation to whether the proposed
revised benchmarks will provide for a fully effective enforcement
program for New Mexico in accordance with the Court Order in AFL-CIO v.
Marshall. Comments must be received on or before May 3, 1994, and be
submitted in quadruplicate to the Docket Office, Docket No. T-025, U.S.
Department of Labor, room N-2625, 200 Constitution Avenue, NW.,
Washington, DC 20210. Written submissions must be directed to the
specific benchmarks proposed for New Mexico and must clearly identify
the issues which are addressed and the positions taken with respect to
each issue.
All written submissions as well as other information gathered by
OSHA will be considered in any action taken. The record of this
proceeding, including written comments and all material submitted in
response to this notice, will be made available for public inspection
and copying in the Docket Office, room N-2625, at the previously
mentioned address, between the hours of 8:15 a.m. and 4:45 p.m.
List of Subjects in 29 CFR Part 1952
Intergovernmental relations, Law enforcement, Occupational safety
and health.
(Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR Part 1902, Secretary
of Labor's Order No. 9-83 (43 FR 35736))
Signed at Washington, DC, this 18th day of March 1994.
Joseph A. Dear,
Assistant Secretary of Labor.
[FR Doc. 94-7254 Filed 3-28-94; 8:45 am]
BILLING CODE 4510-26-M
