[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Proposed Rules]
[Pages 48446-48452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23459]
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DEPARTMENT OF LABOR
29 CFR Part 1952
[Docket No. T-031]
North Carolina State Plan; Eligibility for Final Approval
Determination; Proposal To Grant an Affirmative Final Approval
Determination; Comment Period and Opportunity To Request Public Hearing
AGENCY: Occupational Safety and Health Administration (OSHA), U.S.
Department of Labor.
ACTION: Proposed final State plan approval; request for written
comments; notice of opportunity to request informal public hearing.
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SUMMARY: This document gives notice of the eligibility of the North
Carolina State occupational safety and health plan, as administered by
the North Carolina Department of Labor, for determination under section
18(e) of the Occupational Safety and Health Act of 1970 as to whether
final approval of the State plan should be granted.
If an affirmative determination under section 18(e) is made,
Federal standards and enforcement authority will no longer apply to
issues covered by the North Carolina plan. This notice announces that
OSHA is soliciting written public comment regarding whether or not
final State plan approval should be granted, and offers an opportunity
to interested persons to request an informal public hearing on the
question of final State plan approval.
DATES: Written comments or requests for a hearing should must be
received by October 15, 1996.
ADDRESSES: Written comments or requests for a hearing should be
submitted, in quadruplicate, to the Docket Officer, Docket No. T-031,
U.S. Department of Labor, Room N2625 200 Constitution Avenue NW,
Washington. DC 20210, (202) 219-7894.
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 N3637, 200 Constitution
Avenue NW, Washington, DC 20210, (202) 219-8148.
SUPPLEMENTARY INFORMATION:
Background
Section 18 of the Occupational Safety and Health Act of 1970, 29
U.S.C. 651, et seq , (the ``Act'') provides that States which desire to
assume responsibility for the development and enforcement of
occupational safety and health standards may do so by submitting, and
obtaining Federal approval of a State plan. Procedures for State Plan
submission and approval are set forth in regulations at 29 CFR Part
1902. If the Assistant Secretary, applying the criteria set forth in
section 18(c) of the Act and 29 CFR 1902.3 and .4, finds that the plan
provides or will provide for State standards and enforcement which are
at least as effective as Federal standards and enforcement, ``initial
approval'' is granted. A State may commence operations under its plan
after this determination is made, but the Assistant Secretary retains
discretionary Federal enforcement authority during the initial approval
period as provided by section 18(e) of the Act. A State plan may
receive initial approval even though, upon submission, it does not
fully meet the criteria set forth in Secs. 1902.3 and 1902.4 if it
includes satisfactory assurances by the State that it will take the
necessary ``developmental steps'' to meet the criteria within a three-
year period (29 CFR 1902.2(b)). The Assistant Secretary publishes a
``certification of completion of developmental steps'' when all of a
State's developmental commitments have been satisfactorily met (29 CFR
1902.34).
When a State plan that has been granted initial approval is
developed sufficiently to warrant a suspension of concurrent Federal
enforcement activity, it becomes eligible to enter into an
``operational status agreement'' with OSHA (29 CFR 1954.3(f)). A State
must have enacted its enabling legislation, promulgated State
standards, achieved an adequate level of qualified personnel, and
established a system for review of contested enforcement actions. Under
these voluntary agreements, concurrent Federal enforcement will not be
initiated with regard to Federal occupational safety and health
standards in those issues covered by the State plan, where the State
program is providing an acceptable level of protection.
Following the initial approval of a complete plan, or the
certification of a developmental plan, the Assistant Secretary must
monitor and evaluate actual operations under the plan for a period of
at least one year to determine, on the basis of actual operations under
the plan, whether the criteria set forth in section 18(c) of the Act
and 29 CFR 1902.37 are being applied.
An affirmative determination under section 18(e) of the Act
(usually referred to as ``final approval'' of the State plan) results
in the relinquishment of authority for Federal concurrent enforcement
jurisdiction in the State with respect to occupational safety and
health issues covered by the plan (29 U.S.C. 667(e)). Procedures for
section 18(e) determinations are found at 29 CFR Part 1902, Subpart D.
In general, in order to be granted final approval, actual performance
by the State must be ``at least as effective'' overall as the Federal
OSHA program in all areas covered under the State plan.
An additional requirement for final approval consideration is that
a State must meet the compliance staffing levels, or benchmarks, for
safety inspectors and industrial hygienists established by OSHA for
that State. This requirement stems from a 1978 Court Order by the U.S.
District Court for the District of Columbia (AFL-CIO v. Marshall, C.A.
No. 74-406), pursuant to a U.S. Court of Appeals decision, that
directed the Assistant Secretary to calculate for each state plan State
the number of enforcement personnel needed to assure a ``fully
effective'' enforcement program.
[[Page 48447]]
The last requirement for final approval consideration is that a
State must participate in OSHA's Integrated Management Information
System (IMIS). This is required so that OSHA can obtain the detailed
program performance data on a State necessary to make an objective
continuing evaluation of whether the State performance meets the
statutory and regulatory criteria for final approval.
History of the North Carolina Plan and of Its Compliance Staffing
Benchmarks
North Carolina Plan
On November 27,1972, North Carolina submitted an occupational
safety and health plan in accordance with section 18(b) of the Act and
29 CFR Part 1902, Subpart C and on December 9, 1972 a notice was
published in the Federal Register (37 FR 26371) concerning the
submission of the plan, announcing that initial Federal approval of the
plan was at issue and offering interested persons 30 days in which to
submit data, views and arguments in writing concerning the plan.
Written comments concerning the plan were submitted on behalf of
the American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO) and the U.S.S. Agri-Chemicals. No other written
comments were received, and no request for an informal hearing was
received.
On February 1, 1973, the Assistant Secretary published a Federal
Register notice (38 FR 3041) granting initial approval of the North
Carolina plan as a developmental plan and adopting Subpart I of Part
1952 containing the decision and describing the plan.
The North Carolina Department of Labor is designated as the agency
having responsibility for administering the plan throughout the State
under the authority of the North Carolina Occupational Safety and
Health Act (S.B. 342, Chapter 295). The plan provides for the adoption
by North Carolina of standards which are ``at least as effective'' as
Federal occupational safety and health standards. In most cases the
State standards are identical to the Federal. The plan requires
employers to furnish employment and place of employment which is free
from recognized hazards that are causing or are likely to cause death
or serious physical harm, and to comply with all occupational safety
and health standards promulgated by the State agency. Employees are
required to comply with all standards and regulations applicable to
their conduct.
The plan contains provisions similar to Federal procedures
governing emergency temporary standards; imminent danger proceedings;
coverage under the general duty clause; variances; safeguards to
protect trade secrets; protection of employees against discrimination
for exercising their rights under the plan; and employer and employee
rights to participate in inspection and review proceedings. The notice
of initial approval noted that the State does not cover private sector
maritime employment, employment on military bases, or domestic workers.
Notices of contest of citations and penalties are filed with the
Commissioner of Labor and are heard by the North Carolina Occupational
Safety and Health Review Board, an independent administrative review
board. Decisions of the North Carolina Occupational Safety and Health
Review Board may be appealed to the North Carolina Superior Court and
those decisions may be ultimately appealed to the North Carolina State
Supreme Court.
The Assistant Secretary's initial approval of the North Carolina
developmental plan, a general description of the plan, a schedule of
required developmental steps, and a provision for discretionary
concurrent Federal enforcement during the period of initial approval
were codified in the Code of Federal Regulations (29 CFR Part 1952,
Subpart I (38 FR 3041, February 1, 1973)).
In accordance with the State's developmental schedule, all major
structural components of the plan were put in place and documentation
submitted for OSHA approval on or before March 31, 1976. These
``developmental steps'' included enactment of the North Carolina
Occupational Safety and Health Act, promulgation of State occupational
safety and health standards essentially identical to Federal standards
and establishment of a public employee program. In completing these
developmental steps, the State developed and submitted for Federal
approval all components of its program including, among other things:
documentation of staff training; a merit staffing system; regulations
for inspections, citations and proposed penalties; record keeping and
reporting regulations; standards and variances regulations; compliance
procedures; and, rules of procedure for the North Carolina Occupational
Safety and Health Review Board.
These submissions were carefully reviewed by OSHA; after
opportunity for public comment and modification of State submissions,
where appropriate, the major plan elements were approved by the
Assistant Secretary as meeting the criteria of section 18 of the Act
and 29 CFR 1902.3 and 1902.4. The North Carolina Subpart of 29 CFR Part
1952 was amended to reflect each of these approval determinations (see
29 CFR 1952.152).
On October 5, 1976, in accordance with procedures at 29 CFR 1902.34
and 1902.35, the Assistant Secretary certified that North Carolina had
satisfactorily completed all developmental steps (41 FR 43896). In
certifying the plan, the Assistant Secretary found the structural
features of the program--the statutes, standards, regulations, and
written procedures for administering the North Carolina plan--to be as
effective as corresponding Federal provisions. Certification does not,
however, entail findings or conclusions by OSHA concerning adequacy of
actual plan performance. As has already been noted, OSHA regulations
provide that certification initiates a period of evaluation and
monitoring of State activity to determine in accordance with section
18(e) of the Act whether the statutory or regulatory criteria for State
plans are being applied in actual operations under the plan and whether
final approval should be granted.
On February 20, 1975, OSHA and the State of North Carolina entered
into an Operational Status Agreement which suspended the exercise of
Federal concurrent enforcement authority in all except specifically
identified areas. (See 40 FR 16843).
On September 3, 1991, a tragic fire occurred at the Imperial Food
Products chicken processing plant in Hamlet, North Carolina, which
resulted in the deaths of 25 workers. In response to that event OSHA
undertook a comprehensive reevaluation of the performance of the North
Carolina State Plan and a special evaluation of all other State Plans.
On October 24, 1991 (56 FR 55192) OSHA reasserted concurrent Federal
enforcement jurisdiction in North Carolina with respect to all
currently pending and new complaints of discrimination filed either
with OSHA or the State; all complaints of unsafe or unhealthful working
conditions brought to OSHA's attention on or after October 24, 1991 by
employees or referred by others; and referrals from the North Carolina
Governor's 800 ``Safety Line.'' This action was responsive to the
State's request for assistance. Upon further request, on March 31,
1992, (57 FR 10820) OSHA extended its jurisdiction to include all as
yet uninvestigated workplace complaints filed with the State as of
March 20, 1992.
Congressional oversight hearings were held on the Hamlet fire and
the AFL-
[[Page 48448]]
CIO, on September 11, 1991, petitioned the Assistant Secretary to
withdraw approval of the North Carolina State Plan. (See September 30,
1991, Request for Public Comment (56 FR 49444) and January 16, 1992,
Extension of the Comment Period and Announcement of the Availability of
a Special Evaluation report on North Carolina (57 FR 1889).) On January
7, 1992, OSHA issued a Special Evaluation report on North Carolina
finding significant deficiencies and giving the State 90 days to take
corrective action. On April 23, 1992, OSHA determined that the State's
response to the Special Evaluation findings was insufficient and gave
North Carolina 45 days to show cause why plan withdrawal action should
not be initiated. Fully satisfactory assurances that necessary
corrective action would be undertaken were received in June 1992.
North Carolina subsequently made substantive and significant
improvements to its program. Major modifications were made to the
State's occupational safety and health program enabling legislation;
State funding and staffing were increased. The State dedicated the
inspection resources to the program necessary to provide effective
worker protection in the State and addressed all of the deficiencies
identified as a result of OSHA's 1991 Special Evaluation Report. The
State increased its allocated enforcement staff to 115 (64 safety and
51 health) and trained its new compliance officers in accord with the
schedule outlined in the State's June 1992 corrective action
commitments. North Carolina resumed responsibility for all
discrimination complaints effective July 1, 1992, as a result of
enactment of legislation creating the Workplace Retaliatory
Discrimination (WORD) Division, selection and training of dedicated
staff, and revision of its discrimination manual to be comparable to
OSHA's. These and other actions also resolved all issues raised in the
AFL-CIO's petition for withdrawal of approval of the North Carolina
State Plan.
OSHA evaluation reports on North Carolina's performance subsequent
to the Special Evaluation, documented continuing improvement and
indicated that the program was operating in an effective manner with an
outstanding commitment to necessary enforcement as well as creative
outreach and other voluntary compliance activities. Based on this
record, OSHA on March 7, 1995, determined that the exercise of
concurrent Federal enforcement jurisdiction was no longer warranted and
suspended Federal enforcement authority except with regard to those
issues not covered by the State. OSHA similarly determined that no
further action was necessary or appropriate with regard to the AFL-CIO
petition for North Carolina plan withdrawal. (See 44 FR 12416.)
North Carolina Benchmarks
Under the terms of a 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for
each State operating an approved State plan. In 1980, in response to
the Court Order, OSHA established benchmarks for all approved State
plans, including benchmarks of 83 safety and 119 health compliance
officers for North Carolina. The 1978 Court Order noted that new
information might warrant an adjustment by OSHA of the fully effective
benchmarks. In September 1984 North Carolina in conjunction with OSHA,
completed a reassessment of the levels resulting in proposed revised
compliance staffing 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 (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 again renegotiate the appropriate number of
North Carolina 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. These revised benchmarks were
approved by the Assistant Secretary on June 4, 1996, after opportunity
for public comment and service on the AFL-CIO (61 FR 28053).
Determination of Eligibility
This Federal Register notice announces the eligibility of the North
Carolina plan for final approval detertmination under section 18(e).
(29 CFR 1902.39(c) requires that this preliminary determination of
eligibility be made before section 18(e) procedures begin.) The
determination of eligibility is based upon OSHA's findings that:
(1) The North Carolina plan has been monitored in actual operation
for at least one year following certification. The results of OSHA
monitoring of the plan since the commencement of plan operations are
contained in written evaluation reports which are now prepared
biennially and made available to the State and to the public. The
results of OSHA's most recent post-certification monitoring are set
forth in a biennial evaluation report covering the period of October 1,
1993 through September 30, 1995, and in a section 18(e) Evaluation
Report of the North Carolina Plan, covering the period of October 1,
1995 through June 30, 1996, which have been made part of the record of
the present proceedings.
(2) The plan meets the State's revised benchmarks for enforcement
staffing. On June 4, 1996, pursuant to the terms of the Court Order and
the 1980 Report to the Court in AFL-CIO v. Marshall, OSHA approved
revised fully effective benchmarks of 64 safety and 50 health
compliance officers for North Carolina based on an assessment of State-
specific characteristics and historical experiences. North Carolina has
allocated these positions, as evidenced by the FY 1996 Application for
Federal Assistance in which the State has committed itself to funding
the State share of salaries for 64 safety and 51 health compliance
officers. The FY 1996 application has been made part of the record in
the present proceeding.
(3) North Carolina participates and has assured its continued
participation in the Integrated Management lnformation System (IMIS)
developed by OSHA.
Issues for Determination in the 18(e) Proceedings
The North Carolina plan is now at issue before the Assistant
Secretary for determination as to whether the criteria of section 18(c)
of the Act are being applied in actual operation. 29 CFR 1902.37(a)
requires the Assistant Secretary, as part of the final approval process
to determine if the State has applied and implemented all the specific
criteria and indices of effectiveness of Secs. 1902.3 and 1902.4. The
Assistant Secretary must make this determination by considering the
factors set forth in Sec. 1902.37(b). OSHA believes that the results of
its evaluation of the North Carolina program as described in the most
recent biennial evaluation report and the section 18(e) Performance
Evaluation Report, considered in light of these regulatory criteria and
the criteria in section 18(c) of the Act, indicate that
[[Page 48449]]
the regulatory indices and criteria are being met. The Assistant
Secretary accordingly has made an initial determination that the North
Carolina plan is eligible for an affirmative section 18(e)
determination. This notice initiates proceedings by which OSHA expects
to elicit public comment on the issue of granting an affirmative
section 18(e) determination to North Carolina. In order to encourage
the submission of informed and specific public comment, a summary of
current evaluation findings with respect to these criteria is set forth
below.
(a) Standards and Variances
Section 18(c)(2) of the Act requires State plans to provide for
occupational safety and health standards which are at least as
effective as Federal standards. A State is required to adopt, in a
timely manner, all Federal standards and amendments or to develop and
promulgate State standards and amendments at least as effective as the
Federal standards. See Secs. 1902.37(b)(3), 1902.3(c), 1902.4 (a) and
(b). The North Carolina plan provides for adoption of standards,
through an expedited process, which are in most cases identical to
Federal standards. North Carolina's adoption process continues to meet
the six-month time frame for adoption of OSHA standards requiring State
action during the section 18(e) evaluation period. [18(e) Evaluation
Report, p. 3]
Where a State adopts Federal standards, the State's interpretation
and application of such standards must ensure consistency with Federal
interpretation and application. Where a State develops and promulgates
its own standards, interpretation and application must ensure
protection at least as effective as comparable Federal standards and
enforcement procedures. While acknowledging prior approval of
individual standards by the Assistant Secretary, this requirement
stresses that State standards, in actual operation, must be at least as
effective as the Federal standards. See Secs. 1902.37(b)(4),
1902(c)(1), 1902.3(d)(l), 1903.4(a), and 1902.4(b)(2). As already
noted, the North Carolina plan provides for adoption of standards
identical to Federal standards. North Carolina also adopted
interpretations which are identical to the Federal interpretations in
most instances.
The State is required to take the necessary administrative judicial
or legislative action to correct any deficiency in its program caused
by an administrative or judicial challenge to any State standard,
whether the standard is identical to the Federal standards or developed
by the State. See Sec. 1902.37(b)(5). No such challenge to State
standards has ever occurred in North Carolina. [18(e) Evaluation
Report, p. 3.]
When granting permanent variances from standards, the State is
required to ensure that the employer provides as safe and healthful
working conditions as would have been provided if the standard were in
effect. See Secs. 1902.37(b)(6) and 1902.4(b)(2)(iv). North Carolina
had one request for a permanent variance during the 18(e) evaluation
period. That request is currently under review by the State. [18(e)
Evaluation Report, p. 3.]
Where a temporary variance is granted, the State must ensure, among
other things, that the employer complies with the standard as soon as
possible and provides appropriate interim employee protection. See
Secs. 1902.37(b)(7) and 1902.4(b)(2)(iv). The North Carolina temporary
variance procedures require that any employer granted a temporary
variance must have an effective program for coming into compliance with
the standard as soon as possible. During the section 18(e) evaluation
period, no temporary variance requests were received. [18(e) Evaluation
Report. p. 3].
(b) Enforcement
Section 18(c)(2) of the Act requires State plans to maintain an
enforcement program which is at least as effective as that conducted by
Federal OSHA. Section 18(c)(3) requires the State plan to provide for
right of entry and inspection of all work places at least as effective
as that in section 8 of the Act
Inspection Targeting. The State inspection program must provide for
sufficient resources to be directed to designated target industries
while providing adequate protection to all other workplaces covered
under the plan. See Secs. 1902.37(b)(8), 1902.3(d)(1), and 1902.4(c).
North Carolina targets estabishments for programmed inspections based
on industry injury/illness rates for safety and chemical exposure and
violation experience for health. As of July 1992, the State began a
priority targeting system directed at employers with a workers
compensation experience rate modifier of 1.5 or greater. North Carolina
has also implemented a cooperative compliance targeting program, known
as the ``North Carolina 248'' program, which targets the 248 employers
with the highest worker's compensation claim rates for a period of
three years. Since the inception of the ``North Carolina 248'' program,
154 of the 248 establishments have received an inspection by NC-OSH.
North Carolina continues to conduct a high percentage of all programmed
inspections in the high hazard industries in the state. [18(e)
Evaluation Report, p. 4-5].
Denials of Entry. In cases of refusal of entry, the State must
exercise its authority, through appropriate means, to enforce the right
of entry and inspection. See Secs. 1902.37(b)(9). 1902.3 (e) and (f),
and 1902.4(c)(2) (I) and (ix). Title 40.1 of the Code of North Carolina
allows the Commissioner to seek a warrant to permit entry into such
establishment that has refused entry for the purpose of inspection or
investigation. North Carolina obtained entry in 90% of refusals during
this nine month evaluation period. [18(e) Evaluation Report, p. 6]
Inspection Procedures. Inspections must be conducted in a competent
manner following approved enforcement procedures which include the
requirement that inspectors acquire information adequate to support any
citation issued. See Secs. 1902.37(b)(10), 1902.3(d)(1), and
1902.4(c)(2). Procedures for the North Carolina occupational safety and
health compliance program are set out in the North Carolina Field
Operations Manual, which is patterned after the Federal manual, and
thus follows inspection procedures, including documentation procedures,
which are similar to Federal procedures. The Evaluation Report notes
overall adherence by North Carolina to these procedures.
Identifying and Citing Hazards: North Carolina cited an average of
5 violations per safety inspection and 3.9 violations per health
inspection. 30.7% of safety violations and 30.5% of health violations
were cited as serious. The percentage of serious safety and health
violations were lower than the comparable Federal percentages. The
state continues to provide compliance officers with specific training
and direction to ensure the proper classification of violations of
standards. [18(e) Evaluation Report, p. 8]
Advance Notice: State plans must include a prohibition on advance
notice, and exceptions must be no broader than those allowed by Federal
OSHA procedure. See Sec. 1902.3(f). North Carolina adopted approved
procedures for advance notice similar to the Federal procedures.
Employee Participation: State plans must provide for inspections in
response to employee complaints, and must provide an opportunity for
employee participation in State inspections. See Sec. 1902.4(c) (I)
through (iii). North Carolina has procedures
[[Page 48450]]
similar to Federal OSHA for processing and responding to complaints and
providing for employee particpation in State inspections. The data
indicates that during the evaluation period the State responded to 85%
of serious safety and health complaints within the prescribed time
frame of 30 days. No complaints were classified as imminent danger
during the review period. [18(e) Evaluation Report, p. 7]
Nondiscrimination. State plans must also provide protection for
employees against discrimination similar to that found in section 11(c)
of the Federal Act. See Sec. 1902.4(c)(2)(v). Title 40.1 of the Code of
North Carolina and State regulations provide for discrimination
protection equivalent to that provided by Federal OSHA. Employees have
up to 180 days to file a complaint, compared to the Federal 30 days. A
total of 66 complaints alleging discrimination were received during the
evaluation period, of which, only 6 had lapse times of more than 90
days from date of receipt to the date of determination. 60 of the cases
had been settled, withdrawn, dismissed, or filed for litigation by the
end of the period. [18(e) Evaluation Report, p. 13]
Citations and Proposed Penalties. The State is required to issue,
in a timely manner, citations, proposed penalties, and notices of
failure to abate. See Secs. 1902.37(b)(11), 1902.3(d), and 1902.4(c)(2)
(x) and (xi). The State's lapse time from last day of inspection to
issuance of citation averaged 36.7 days for safety and 57.9 days for
health. Both of the lapse times compare favorably to Federal OSHA's
time lapse.
The State must propose penalties in manner that is at least as
effective as the penalties under the Federal program, which includes
first instance violation penalties and consideration of comparable
factors required in the Federal program. See Secs. 1902.37(b)(12),
1902.3(d), and 1902.4(c) (x) and (xi). North Carolina's procedures for
penalty calculation are the similar to the Federal procedures. The
section 18(e) Evaluation Report noted that North Carolina proposes
appropriate penalties. The average penalty for serious safety
violations was $1215.10 and the average serious health penalty was
$1056.30. [18(e) Evaluation Report, p. 8-9]
Abatement. The State must ensure abatement of hazards cited
including issuance of notices of failure to abate and appropriate
penalties. See Secs. 1902.37(b)(13), 1902.3(d), and 1902.4(c) (vii) and
(xi). North Carolina's abatement periods for serious violations
averaged 15.5 days for safety and 6.8 days for health. [18(e)
Evaluation Report, p.9]
Whenever appropriate, the State must seek administrative and
judicial review of adverse adjudications. Additionally, the State must
take necessary and appropriate action to correct any deficiencies in
its program which may be caused by an adverse administrative or
judicial determination. See Secs. 1902.37(b)(14) and 1902.3 (d) and
(g). The North Carolina section 18(e) Evaluation Report noted no
instances of adverse adjudications.
(c) Staffing and Resources
The State is required to have a sufficient number of adequately
trained and competent personnel to discharge its responsibilities under
the plan. See section 18(c)(4) of the Act; 29 CFR 1902.37(b)(1),
1902.3(d) and 1902.3(h). A State must also direct adequate resources to
administration and enforcement of the plan. See section 18(c)(5) of the
Act and Sec. 1902.3(I). As discussed above, the North Carolina plan
provides for 64 safety compliance officers and 51 industrial hygienists
as set forth in the North Carolina FY 1996 grant. This staffing level
meets the approved, revised ``fully effective'' benchmarks for North
Carolina for health and safety staffing, as discussed elsewhere in this
notice. At the close of the evaluation period the State had 60 safety
and 47 health compliance officers positions filled. [18(e) Evaluation
Report, p. 17]
North Carolina provides its safety and health personnel with formal
training based on the needs of the staff and availability of funds. The
OSHA Training Institute is utilized for staff training, and the State
conducts quarterly conferences to train personnel in new and updated
policy and technical changes. [18(e) Evaluation Report, p. 14]
(d) Other Requirements
Public Employees: States which have approved plans must maintain a
safety and health program for State and local employees which must be
as effective as the State's plan for the private sector. See
Sec. 1902.3(j). The North Carolina plan provides a program in the
public sector which is comparable to that in the private sector,
including assessment of penalties. Injury and illness rates are lower
in the public sector than in the private. [18(e) Evaluation Report, p.
9-11]
Injury/Illness Rates: As a factor of its section 18(e)
determination, OSHA must consider whether the Bureau of Labor
Statistics' annual occupational safety and health survey and other
available Federal and State measurements of program impact on worker
safety and health indicate that trends in worker safety and health
injury and illness rates under the State program compare favorably with
those under the Federal program. See Sec. 1902.37(b)(15). In 1994, the
private sector rate for all industries remained at 3.5 as it has been
since 1989. There were slight increases in, manufacturing--1993-4.0,
1994-4.1, and construction--1993-4.7, 1994-5.1, but both areas were
still below the nationwide rate of 3.8 for all industries, 5.5 for
manufacturing, and 5.5 for construction. [18(e) Evaluation Report, p.
18]
Required Reports: State plans must assure that employers in the
State submit reports to the Secretary in the same manner as if the plan
were not in effect. See section 18(c)(7) of the Act; 29 CFR 1902.3(k).
The plan must also provide assurance that the designated agency will
make such reports to the Secretary in such form and containing such
information as he may from time to time require. Section 18(c)(8) of
the Act; 29 CFR 1902.4(1). North Carolina employer recordkeeping
requirements are identical to those of Federal OSHA, and the State
participates in the BLS Annual Survey of Occupational Illness and
Injuries. As noted above, the State participates and has assured its
continuing participation with OSHA in the Integrated Management
Information System (IMIS) as a means of providing reports on its
activities to OSHA.
Voluntary Compliance: Section 1902.4(c)(2)(xiii) requires States to
undertake programs to encourage voluntary compliance by employers by
such means as conducting training and consultation with employers and
employees. In the private sector the State conducted 178 employer and
employee training sessions with 3,117 employer attendees and 5,445
employee attendees at the sessions. The State, through a cooperative
agreement with the North Carolina Community College System Small
Business Centers, also participated in conducting 43 workshops covering
several safety and health subjects. [18(e) Evaluation Report, p.14]
The State has entered into a partnership with North Carolina State
University to provide comprehensive ergonomic services to citizens and
employers through the Ergonomics Resource Center. The Center has
developed a comprehensive outreach program which includes education,
research, on-site consultation, technology transfer and monitoring, on
a fee basis. The Center has been selected as one of the semi-finalists
in the 1996 Innovations in American Government Awards program.
[[Page 48451]]
North Carolina also has initiated a Cooperative Assessment Program
for ergonomics which encourages employers to voluntarily address
ergonomic problems through an agreement similar to a post-citation
settlement agreement. The State has also entered into a Memorandum of
Understanding with the State Department of Agriculture, Meat and
Poultry Inspection Services to train MPIS inspectors to recognize and
address workplace hazards.
In addition, on-site consultation services are provided in the
public sector. (The State's on-site consultation program for the
private sector is conducted apart from the State plan under an
agreement with OSHA under section 7(c)(1) of the OSH Act.)
Effect of Sec. 18(e) Determination
If the Assistant Secretary, after completion of the proceedings
described in this notice, determines that the statutory and regulatory
criteria for State plans are being applied in actual operations, final
approval will be granted and Federal standards and enforcement
authority will cease to be in effect with respect to issues covered by
the North Carolina plan, as provided by Section 18(e) of the Act and 29
CFR 1902.42(c). North Carolina has excluded from its plan: Safety and
health coverage in private sector maritime activities (enforcement of
occupational safety and health standards comparable to 29 CFR Parts
1915, shipyard employment; 1917, marine terminals; 1918, longshoring;
and 1919, gear certification, as well as provisions of general industry
standards (29 CFR Part 1910) appropriate to hazards found in these
employments). In addition, North Carolina does not cover employment on
Indian reservations, enforcement relating to any contractors or
subcontractors on any Federal establishment where the land has been
ceded to the Federal Government, railroad employment, and enforcement
on military bases. Thus, Federal coverage of these areas would be
unaffected by an affirmative section 18(e) determination.
In the event an affirmative section 18(e) determination is made by
the Assistant Secretary following the proceedings described in the
present notice, a notice will be published in the Federal Register in
accordance with 29 CFR 1902.43; the notice will specify the issues as
to which Federal authority is withdrawn, will state that Federal
authority with respect to enforcement under section 5(a)(1) of the Act
and discrimination complaints under section 11(c) of the Act remains in
effect, and will state that if continuing evaluations show that the
State has failed to maintain a compliance staff which meets the revised
fully effective benchmarks, or has failed to maintain a program which
is at least as effective as the Federal, or that the State has failed
to submit program change supplements as required by 29 CFR Part 1953,
the Assistant Secretary may revoke or suspend final approval and
reinstate Federal enforcement authority or, if the circumstances
warrant, initiate action to withdraw approval of the State plan. At the
same time, Subpart C of 29 CFR Part 1952, which codifies OSHA decisions
regarding approval of the North Carolina plan, would be amended to
reflect the section 18(e) determination if an affirmative determination
is made.
Documents of Record
All information and data presently available to OSHA relating to
the North Carolina section 18(e) proceeding have been made a part of
the record in this proceeding and placed in the OSHA Docket Office. The
contents of the record are available for inspection and copying at the
following locations:
Docket Office, Room N-2625, Docket No. T-031, Occupational Safety
and Health Administration, U.S. Department of Labor, 200 Constitution
Avenue NW, Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and
Health Administration, U.S. Department of Labor, 1375 Peachtree Street,
N.E., Suite 587, Atlanta, Georgia 30367; and North Carolina Department
of Labor, Division of Occupational Safety and Health, 319 Chapanoke
Road--Suite 105, Raleigh, North Carolina 27603-3432.
To date, the record on final approval determination includes copies
of all Federal Register documents regarding the plan, including notices
of plan submission, initial Federal approval, certification of
completion of developmental steps, codification of the State's
operational status agreement, and other plan supplements. The record
also includes the State plan document, which includes a plan narrative,
the State legislation, regulations and procedures, an organizational
chart for State staffing; the State's FY 1997 Federal grant; and the
October 1, 1995 through June 30, 1996 18(e) Evaluation Report and all
previous, post-certification reports.
Public Participation
Request for Public Comment and Opportunity To Request Hearing
The Assistant Secretary is directed under Sec. 1902.41 to make a
decision whether an affirmative section 18(e) determination is
warranted or not. As part of the Assistant Secretary's decision-making
process, consideration must be given to the application and
implementation by North Carolina of the requirements of section 18(c)
of the Act and all specified criteria and indices of effectiveness as
presented in 29 CFR 1902.3 and 1902.4. These criteria and indices must
be considered in light of the factors in 29 CFR 1902.37 (b)(1) through
(15). However, this action will be taken only after all the information
contained in the record, including OSHA's evaluation of the actual
operations of the State plan, and information presented in written
submissions and during an informal public hearing, if held, is reviewed
and analyzed. OSHA is soliciting public participation in this process
so as to assure that all relevant information, views, data and
arguments related to the indices, criteria and factors presented in 29
CFR Part 1902, as they apply to North Carolina State plan, are
available to the Assistant Secretary during this administrative
proceeding.
Interested persons are invited to submit written data, views, and
arguments with respect to this proposed section 18(e) determination.
These comments must be received on or before (30 days) and submitted in
quadruplicate to the Docket Officer, Docket No. T-031, Room N-2625,
U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC
20210. Written submissions must clearly identify the issues which are
addressed and the positions taken with respect to each issue. The State
of North Carolina will be afforded the opportunity to respond to each
submission.
Pursuant to 29 CFR 1902.39(f), interested persons may request an
informal hearing concerning the proposed section 18(e) determination.
Such requests also must be received on or before (30 days) and should
be submitted in quadruplicate to the Docket Officer, Docket T-031, at
the address noted above. Such requests must present particularized
written objections to the proposed section 18(e) determination. The
Assistant Secretary will decide within 30 days of the last day for
filing written views or comments and requests for a hearing whether the
objections raised are substantial and, if so, will publish notice of
the time and place of the scheduled hearing.
The Assistant Secretary will, within a reasonable time after the
close of the comment period or after the certification of the record if
a hearing is held, publish his decisions in the Federal
[[Page 48452]]
Register. All written and oral 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 requests
for hearing and all materials submitted in response to this notice and
at any subsequent hearing, will be available for 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.
Regulatory Flexibility Act
OSHA certifies pursuant to the Regulatory Flexibility Act of 1980
(5 U.S.C. 601 et seq.) that this determination will not have a
significant economic impact on a substantial number of small entities.
Final approval would not place small employers in North Carolina 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, Occupational Safety and Health Administration.
(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 6th day of September, 1996.
Joseph A. Dear,
Assistant Secretary of Labor.
[FR Doc. 96-23459 Filed 9-12-96; 8:45 am]
BILLING CODE 4510-26-P
