[Federal Register Volume 61, Number 108 (Tuesday, June 4, 1996)]
[Rules and Regulations]
[Pages 28053-28055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13913]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1952
[Docket No. T-015A]
North Carolina State Plan: Approval of Revised Compliance
Staffing Benchmarks
AGENCY: Department of Labor, Occupational Safety and Health
Administration (OSHA).
ACTION: Approval of revised State compliance staffing benchmarks.
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SUMMARY: This document amends Subpart I of 29 CFR 1952 to reflect the
Assistant Secretary's decision to approve revised compliance staffing
benchmarks of 64 safety inspectors and 50 industrial hygienists for the
North Carolina State plan.
EFFECTIVE DATE: June 4, 1996.
FOR FURTHER INFORMATION CONTACT: Anne Cyr, Acting Director, Office of
Information and Consumer Affairs, Occupational Safety and Health
Administration, U.S. Department of Labor, Room N-3637, 200 Constitution
Avenue, N.W., Washington, D.C. 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
[[Page 28054]]
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 North Carolina to allocate 83 safety and 119
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. The State of North Carolina participated in this
benchmark revision process, which resulted in a methodology whereby a
State could submit data that would justify revision of its 1980
benchmarks. In May 1992, North Carolina proposed to the Assistant
Secretary revised compliance staffing levels for a ``fully effective''
program responsive to the occupational safety and health needs of the
State. (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.)
Proposed Revision of Benchmarks
In 1980, OSHA submitted a report to the Court containing the
benchmarks and requiring North Carolina to allocate 83 safety
compliance officers and 119 industrial hygienists. Pursuant to the
initiative begun in August 1983 by the State plan designees as a group,
and in accord with the formula and general principles established by
that group for individual State revision of benchmarks, North Carolina
reassessed the compliance staffing necessary for a ``fully effective''
occupational safety and health program in the State. In September 1984,
North Carolina requested that the Assistant Secretary approve revised
compliance staffing levels of 50 safety and 27 health compliance
officers for a ``fully effective'' program responsive to the
occupational safety and health needs and circumstances in the State.
These revised benchmarks were approved by the Assistant Secretary on
January 17, 1986 (51 FR 2481).
In March 1989 the North Carolina House Appropriations Committee of
the North Carolina General Assembly passed a resolution instructing the
Commissioner of Labor to renegotiate the appropriate number of
occupational safety and health compliance officers with OSHA. In June
1990 the State of North Carolina requested that the Assistant Secretary
approve revisions to its 1984 compliance staffing benchmark levels
which the State found to be more reflective of current occupational
safety and health needs and circumstances within the State. This
reassessment resulted in a proposal to OSHA of revised compliance
staffing benchmarks of 64 safety and 50 health compliance officers for
the State of North Carolina.
In September 1991, a catastrophic fire occurred at a poultry
processing plant in North Carolina, resulting in the reinstitution of
limited Federal concurrent jurisdiction and a special Federal
evaluation of the State's occupational safety and health operations.
Consideration of North Carolina's benchmarks revision was suspended
during this time. Significant legislative and budgetary changes were
made to the North Carolina State program and, for Fiscal Year 1995, the
State authorized compliance staffing of 64 safety and 51 health
inspectors. In late 1994, the North Carolina Department of Labor
requested that the Assistant Secretary resume consideration of State's
proposed revision of its benchmarks.
History of the Present Proceedings
On March 7, 1995, the Occupational Safety and Health Administration
published notice in the Federal Register of its proposal to approve
revised compliance staffing benchmarks for North Carolina (60 FR
12488). A detailed description of the methodology and State-specific
information used to develop the revised compliance staffing levels for
North Carolina was included in the notice. In addition, OSHA submitted,
as a part of the record, detailed submissions containing both narrative
explanation and supporting data for North Carolina's proposed revised
benchmarks (Docket No. T-015A). A summary of the benchmark revision
process is set forth in the January 16, 1985 Federal Register notice
concerning the Wyoming State plan (50 FR 2491). An informational record
was established in a separate docket (Docket No. T-018) and contained
background information relevant to the benchmark issue and the current
benchmark revision process.
To assist and encourage public participation in the benchmark
revision process, a copy of North Carolina's complete record was
maintained in the OSHA Docket Office in Washington, DC. Copies of North
Carolina's record were also maintained in the OSHA Region IV Office in
Atlanta, Georgia, and in the Office of the North Carolina Department of
Labor, in Raleigh, North Carolina.
The March 7 proposal invited interested parties to submit, by April
11, 1995, written comments and views regarding whether North Carolina's
proposed revised compliance staffing benchmark levels should be
approved. Two comments were received regarding North Carolina's
proposed benchmarks.
Summary and Evaluation of Comments Received
In response to the March 7 Federal Register notice for North
Carolina, OSHA received one comment from Kae Livsey, Governmental
Affairs Manager of the American Association of Occupational Health
Nurses, Inc. (Exhibit 4-1), and one comment from Ruth Anne Smith,
President, and Susan A. Randolph, Chair for Governmental Affairs, of
the North Carolina Association of Occupational Health Nurses (Exhibit
4-2). Charles N. Jeffress, Deputy Commissioner of the North Carolina
Department of Labor, responded to the public comments (Exhibit 4-3).
Both comments recommended that the North Carolina program include
occupational health nursing positions in determining revisions to the
State's benchmark levels for compliance staffing and utilizing
occupational health nurses to fill compliance and consultation
positions.
In his response, Deputy Commissioner Jeffress agreed with the two
comments that occupational health nurses are beneficial to a ``full
service'' occupational safety and health program,'' and noted that the
North Carolina Department of Labor has a long history of employing
occupational health nurses to provide training and expert advice in
compliance investigations. Mr. Jeffress also
[[Page 28055]]
explained that North Carolina program's proposed revised compliance
staffing benchmarks apply specifically to personnel for the enforcement
of occupational safety and health standards and that although an
individual with an educational background in occupational health
nursing would be eligible to apply for consideration for these
positions, it would be inappropriate to reserve staffing positions for
individuals with a particular occupational health degree.
Decision
OSHA has carefully reviewed the record developed during the above
described proceedings. In light of all the facts presented on the
record, including the absence of any objections from interested
parties, the Assistant Secretary has determined that the revised
compliance staffing levels proposed for North Carolina meet the
requirements of the 1978 Court Order in AFL-CIO v. Marshall in
providing the number of safety and health compliance officers for a
``fully effective'' enforcement program. Therefore, the revised
compliance staffing levels of 64 safety and 50 health compliance
officers for North Carolina are approved.
Effect of Decision
The approval of the revised staffing levels for North Carolina, set
forth elsewhere in this notice, establishes the requirement for a
sufficient number of adequately trained and qualified compliance
personnel as set forth in Section 18(c) of the Act and 29 CFR
1902.37(b)(1). These benchmarks are established pursuant to the 1978
Court Order in AFL-CIO v. Marshall and define the compliance staffing
levels necessary for a ``fully effective'' program in North Carolina.
The allocation of sufficient staffing to meet the benchmarks is one of
the conditions necessary for States to receive an 18(e) determination
(final State plan approval) with its resultant relinquishment of
concurrent Federal enforcement jurisdiction.
Explanation of Changes to 29 CFR Part 1952
29 CFR 1952 contains, for each State having an approved
occupational safety and health plan, a subpart generally describing the
plan and setting forth the Federal approval status of the plan. This
notice makes several changes to Subpart I to reflect the approval of
North Carolina's revised compliance staffing benchmarks, as well as to
reflect minor editorial modifications to the structure of the Subpart.
Section 1952.393, Compliance staffing benchmarks, has been revised
to reflect the approval of the revised benchmarks for North Carolina.
In addition, the addresses of locations where the North Carolina plan
may be inspected have been updated and are found at Sec. 1952.156.
Regulatory Flexibility Act
OSHA certifies, pursuant to the Regulatory Act of 1980 (5 U.S.C.
601, et seq.), that this rulemaking will not have significant economic
impact on a substantial number of small entities. Approval of the
revised compliance staffing benchmarks for North Carolina will not
place small employers in the State under any new or different
requirements nor would any additional burden be placed upon the State
government beyond the responsibilities already assumed as part of the
approved plan.
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 10th day of May 1996.
Joseph A. Dear,
Assistant Secretary of Labor.
PART 1952--[AMENDED]
Accordingly, Subpart I of 29 CFR Part 1952 is amended as follows:
Subpart I--North Carolina
1. The authority citation for Part 1952 continues to read:
Authority: 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).
2. Section 1952.153 is revised to read as follows:
Sec. 1952.153 Compliance staffing benchmarks.
Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (``benchmarks'') necessary for a ``fully
effective'' enforcement program were required for each State operating
an approved State plan. In September 1984, North Carolina, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised benchmarks of 50 safety and 27
health compliance officers. After opportunity for public comment and
service on the AFL-CIO, the Assistant Secretary approved these revised
staffing requirements on January 17, 1986. In June 1990, North Carolina
reconsidered the information utilized in the initial revision of its
1980 benchmarks and determined that changes in local conditions and
improved inspection data warranted further revision of its benchmarks
to 64 safety inspectors and 50 industrial hygienists. After opportunity
for public comment and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements on June 4, 1996.
3. Section 1952.156 is revised to read as follows:
Sec. 1952.156 Where the plan may be inspected.
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations:
Office of State Programs, Occupational Safety and Health
Administration, U.S. Department of Labor, Third Street and
Constitution Avenue, NW., Room N3700, Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, 1375 Peachtree Street,
NE., Suite 587, Atlanta, Georgia 30367; and
Office of the Commissioner, North Carolina Department of Labor, 319
Chapanoke Road, Raleigh, North Carolina 27603.
[FR Doc. 96-13913 Filed 6-3-96; 8:45 am]
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