[Federal Register Volume 60, Number 164 (Thursday, August 24, 1995)]
[Rules and Regulations]
[Pages 43969-43972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20863]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1952
Approved State Plans for Enforcement of State Standards; Approval
of Supplements to the Nevada State Plan
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Approval of supplements to the Nevada State Plan.
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SUMMARY: This document gives notice of Federal approval of supplements
to the Nevada State occupational safety and health plan. These
supplements are: Nevada's procedure for issuance of notices of
violation in lieu of citations in certain situations; amendments to the
Nevada Occupational Safety and Health Act enacted in 1981, 1989 and
1993; the Nevada Field Operations Manual; the Nevada Training and
Consultation Section Policies and Procedures Manual; the Nevada
Occupational Safety and Health Administration Technical Manual; and a
regulation concerning pre-construction conferences.
EFFECTIVE DATE: August 24, 1995.
FOR FURTHER INFORMATION CONTACT:
Director, Office of Information and Consumer Affairs, Occupational
Safety and Health Administration, Room N3647, 200 Constitution Avenue,
N.W., Washington, D.C. 20210. Telephone: (202) 523-8148.
SUPPLEMENTARY INFORMATION:
Background
The Nevada Occupational Safety and Health Plan was approved under
section 18(c) of the Occupational Safety and Health Act of 1970 (29
U.S.C. 667(c)) (hereinafter referred to as the Act) and Part 1902 of
this chapter on January 4, 1974 (39 FR 1008). Part 1953 of this chapter
provides procedures for the review and approval of State change
supplements by the Assistant Secretary of Labor for Occupational Safety
and Health (hereinafter referred to as the Assistant Secretary).
Description of Supplements
A. Notices of Violation
On October 29, 1980, the State submitted a procedure for issuing
notices of violation in lieu of citations for certain other than
serious violations. In order to expedite inspections and concentrate
resources on serious violations, compliance officers may issue notices
of violation for other than serious violations for which monetary
penalties would not be proposed. If the employer agrees to abate the
violation and not to file a contest, the compliance officer will issue
the notice on-site. For serious, willful, repeat and/or failure to
abate violations, citations continue to be issued in accordance with
established procedures.
Review of the supplement raised several issues which needed to be
resolved before approval of the notice of violation procedure. Because
the Nevada Occupational Safety and Health Act required that citations
be issued where violations were identified, statutory authority for
issuance of notices was necessary. In 1981, Sec. 618.465(1)(b) was
added to the State's law, allowing for a notice in lieu of a citation
for violations which are not serious and which the employer agrees to
correct within a reasonable time.
There was also concern that a notice be able to serve as the basis
for a future willful, repeat, or failure to abate citation, and that
documentation of the violations for which the notice was issued be
adequate to serve as the basis for such a citation. The State amended
its enforcement regulations to provide that for future proceedings
involving a repeat, willful, or failure to abate violation, the notice
of violation shall have the same effect as if a citation has originally
been issued and become a final order (section 618.6458(9)) and that
notices of violations contain all the provisions required for citations
(section 618.6458(6)). In addition, the State was asked to ensure that
if it is learned following the inspection that a violation for which a
notice of violation has been issued is actually a repeat violation, a
citation for a repeat violation would be issued. Section 618.6458 of
the State's enforcement regulations now provides that a citation may be
issued even if a notice has already been issued, and the State's Field
Operations Manual directs the compliance officer to check for previous
violations upon returning to the office. Finally, the right of
employees to contest the reasonableness of the abatement period needed
to be established. The State's enforcement regulations
(Sec. 618.6458(6)) now provide that the notice shall inform employees
of their right to contest the abatement period. Based on these changes
made by the State, the notice of violation procedure is now deemed
approvable.
B. Amendments to Nevada Occupational Safety and Health Act
In 1981, 1989 and 1993, the State enacted amendments to its
Occupational Safety and Health Act. The 1981 amendments, submitted as a
plan supplement on July 10, 1981, made the following changes:
(1) As discussed above, Sec. 618.465(1)(b) was added to allow the
State to issue a notice in lieu of a citation for violations which are
not serious and which the employer agrees to correct within a
reasonable time.
(2) Section 618.415 was revised to delete the legislative authority
for temporary variances for other than new standards. As in the Federal
program, temporary variances may now only be granted from new
standards.
(3) Section 618.585(2) was added to allow the Nevada Occupational
Safety and Health Appeals Board to employ legal counsel.
(4) Section 618.625(3) was amended to streamline penalty collection
procedures by allowing collection actions to be brought in any court of
competent jurisdiction, rather than only the district court.
(5) Section 618.367 was amended to ensure confidentiality to
employees making statements to the Division of Occupational Safety and
Health, as well as those filing complaints. This section was
extensively revised in 1989, as discussed below.
The 1989 amendments, submitted as a plan supplement on October 17,
1989, made the following changes:
(1) Section 618.336 requires the maintenance of specific logs
relating to complaints received concerning occupational safety and
health violations and their outcomes.
(2) Section 618.341 provides public access to records on
complaints, except for confidential information.
(3) Section 618.341(3) provides confidentiality for those employees
who file complaints or make statements, even when confidentiality is
not specifically requested, as well as for files relating to open
cases.
(4) Section 618.370 was amended to clarify that representatives of
employees and former employees are entitled to access to any records in
the possession of their employers or former employers which indicate
their exposure to toxic materials or harmful physical agents.
``Representative of an employee or former employee'' is defined as an
authorized representative of the employee bargaining unit, an attorney,
a spouse, parent or child, or a person designated by a court.
(5) Section 618.425 was amended to add health care providers, and
government employees whose primary duty is to ensure public safety,
such as building inspectors, to those who may file complaints of
hazardous working conditions.
(6) Section 618.425 was also amended to allow for oral as well as
written complaints, and to require the division to respond to valid
complaints of serious violations immediately and of other violations
within 14 days.
(7) Section 618.435 provides that an employee who accompanies a
compliance officer on the inspection is entitled to be paid for the
time spent, but that only one employee may accompany the compliance
officer during the inspection.
(8) Section 618.545 was amended to allow the Administrator of the
Nevada Division of Occupational Safety and
[[Page 43971]]
Health to issue an emergency order to restrain an imminent danger
situation.
(9) All maximum monetary penalties in sections 618.645 through
618.705 were doubled. At the time of their enactment, these statutory
penalty levels were higher than those contained in the Federal Act. (In
1991, statutory maximum penalties for violations of the State Act were
raised again. That increase was approved by OSHA on March 15, 1994 (59
FR 14556).)
The 1993 amendments, submitted on October 27, 1993, reflect a
reorganization of the Nevada State government. The previous Division of
Enforcement for Industrial Safety and Health and Division of Preventive
Safety are now sections in the Division of Industrial Relations of the
Department of Business and Industry.
C. Field Operations Manual
On December 14, 1989, Nevada submitted its Field Operations Manual
in response to a revised Federal Field Operations Manual (CPL 2.45B).
The State has submitted revisions to this manual on May 31, 1991, July
5, 1991, December 15, 1992 and June 13, 1994, in response to Changes 1
through 4 of the Federal manual. The Nevada Field Operations Manual is
comparable to the Federal manual and has been found to be at least as
effective as the Federal manual.
D. Consultation Manual
On August 12, 1987, the State submitted its Training and
Consultation Section Policies and Procedures Manual. This manual
includes previously approved sections of the State's Field Operations
Manual on the conduct of consultation visits to employers. In addition,
it incorporates chapters on safety and health program assistance and
training by consultants which are nearly identical (with organization
changes and adapted to the State's program structure) to Part I of the
Federal Consultation Policies and Procedures Manual.
E. Industrial Hygiene Technical Manual
On March 30, 1990, the State submitted notice of its adoption of
the Federal OSHA Technical Manual. The State has incorporated a cover
sheet indicating that the Federal manual has been adopted for State
use, how references to the Federal program in the Federal manual
correspond to the State administrative structure, and how it will be
applied. In addition, on March 6, 1991, June 22, 1993 and December 16,
1994, the State submitted notice of its adoption of Changes 1, 2 and 3
to the Technical Manual. These changes also incorporate updates to the
Federal manual, with appropriate changes to apply to the State's
organizational structure.
F. Pre-construction Conferences
On August 20, 1993, Nevada submitted a temporary regulation
requiring pre-construction conferences with the Division of Industrial
Relations for certain types of construction projects including high
rise, structural steel erection, precast concrete erections, cast in
place structures above ground level, and tilt-up wall construction. At
the conference, the contractor will identify those safety measures
which will be utilized to protect employees working on the project. On
September 8, 1994, Nevada submitted permanent regulations covering pre-
construction conferences.
G. Revised Plan
On October 2, 1992, Nevada submitted a reorganized State plan,
incorporating the plan supplements approved herein as well as
previously approved plan changes and other supplements still under
review.
H. Other Submissions
In addition, on October 17, 1989, the State submitted legislation
enacted in 1989 and implementing regulations concerning the licensing
and registration of asbestos removal projects. The new procedures
require any contractor engaging in asbestos removal work to be licensed
by the Division of Occupational Safety and Health and to meet certain
training and work practice requirements. The licensing program is
administered separately from the Division's occupational safety and
health enforcement program. While these provisions are not part of the
State plan, and thus activities pursuant to them are not eligible for
funding under section 23(g) of the Act, OSHA will monitor these
activities to ensure that they do not detract from the State's ability
to meet its commitments under the plan.
Location of Supplements for Inspection and Copying
A copy of the plan and the supplements may be inspected and copied
during normal business hours at the following locations: Office of the
Regional Administrator, Occupational Safety and Health Administration,
Room 415, 71 Stevenson Street, San Francisco, California 94105;
Director, Division of Occupational Safety and Health, Nevada Division
of Industrial Relations, 1370 South Curry Street, Carson City, Nevada
89710; and the Office of the Director of Federal-State Operations, Room
N3700, 200 Constitution Avenue, N.W., Washington, D.C. 20210.
Public Participation
A notice was published on April 3, 1981 (46 FR 20229), announcing
the submission of the Nevada program for issuance of notices of
violation. Interested persons were afforded 30 days to submit written
comments or request a hearing concerning the supplement. One comment
favoring the program was received.
With regard to the other supplements, under Sec. 1953.2(c) of this
chapter, the Assistant Secretary may prescribe alternative procedures
to expedite the review process or for any other good cause which may be
consistent with applicable law. The Assistant Secretary finds that the
legislative amendments, Field Operations Manual, Consultation Manual,
Industrial Hygiene Technical Manual and regulations concerning pre-
construction conferences are consistent with Federal requirements and
with commitments contained in the plan and previously made available
for public comment. Good cause is therefore found for approval of these
supplements, and further public participation would be unnecessary.
Decision
After careful consideration and extensive review by the Regional
and National Offices, the Nevada plan supplements described above are
found to be in substantial conformance with comparable Federal
provisions and are hereby approved under Part 1953 of this chapter. The
decision incorporates the requirements and implementing regulations
applicable to State plans generally.
List of Subjects in 29 CFR Part 1952
Intergovernmental relations, Law enforcement, Occupational safety
and health.
Signed at Washington, D.C., this 11th day of August, 1995.
Joseph A. Dear,
Assistant Secretary.
Accordingly, 29 CFR Part 1952 is hereby amended as follows:
PART 1952--[AMENDED]
The authority citation for Part 1952 continues to read:
Authority: Secs. 8, 18 Pub. L. 91-596, 84 Stat. 1608
Occupational Safety and Health Act of 1970 (29 U.S.C. 657, 667);
Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR
25059), or 9-83 (48 FR 35736), as applicable.
[[Page 43972]]
2. Paragraphs (b) through (h) are added to Sec. 1952.297 of Subpart
W to read as follows:
Sec. 1952.297 Changes to approved plans.
* * * * *
(b) Notices of violation. The State submitted a procedure for
issuing notices of violation in lieu of citations for certain other
than serious violations which the employer agrees to abate. The
procedure as modified was approved by the Assistant Secretary on August
24, 1995.
(c) Legislation. The State submitted amendments to its Occupational
Safety and Health Act, enacted in 1981, which: provide for notices of
violation in lieu of citations for certain other than serious
violations; delete the authority for temporary variances for other than
new standards; allow the Nevada Occupational Safety and Health Appeals
Board to employ legal counsel; allow penalty collection actions to be
brought in any court of competent jurisdiction; and ensure
confidentiality to employees making statements to the Division of
Occupational Safety and Health. Further amendments, enacted in 1989:
require the maintenance of specific logs relating to complaints;
provide public access to records on complaints, except for confidential
information; provide confidentiality for those employees who file
complaints or make statements, as well as for files relating to open
cases; allow representatives of employees and former employees access
to any records which indicate their exposure to toxic materials or
harmful physical agents; define representative of employees or former
employees; allow health care providers and government employees in the
field of public safety, to file complaints; allow for oral complaints;
require the division to respond to valid complaints of serious
violations immediately and of other violations within 14 days; provide
that an employee who accompanies a compliance officer on the inspection
is entitled to be paid for the time spent, but that only one employee
may accompany the compliance officer during the inspection; allow the
Administrator of the Division of Occupational Safety and Health to
issue an emergency order to restrain an imminent danger situation; and,
double maximum authorized penalty levels. Amendments enacted in 1993
reflect the new State organizational structural by designating the
previous Divisions as sections in the Division of Industrial Relations
of the Department of Business and Industry. The Assistant Secretary
approved these amendments on August 24, 1995.
(d) Field Operations Manual. The State's Field Operations Manual,
comparable to the Federal Field Operations Manual, through Change 4,
was approved by the Assistant Secretary on August 24, 1995.
(e) Consultation Manual. The State's Training and Consultation
Section Policies and Procedures Manual was approved by the Assistant
Secretary on August 24, 1995.
(f) Occupational Safety and Health Administration Technical Manual.
The State's adoption of the Federal OSHA Technical Manual, through
Change 3, with a cover sheet adapting Federal references to the State's
administrative structure, was approved by the Assistant Secretary on
August 24, 1995.
(g) Pre-construction conferences. A State regulations requiring
pre-construction conferences with the Division of Industrial Relations
for certain types of construction projects was approved by the
Assistant Secretary on August 24, 1995.
(h) Reorganized Plan. The reorganization of the Nevada plan was
approved by the Assistant Secretary on August 24, 1995.
[FR Doc. 95-20863 Filed 8-23-95; 8:45 am]
BILLING CODE 4510-26-M
