[Federal Register Volume 61, Number 244 (Wednesday, December 18, 1996)]
[Rules and Regulations]
[Pages 66593-66602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32083]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1952
[Docket No. T-031]
North Carolina State Plan; Final Approval Determination
December 10, 1996.
AGENCY: Occupational Safety and Health Administration (OSHA), U.S.
Department of Labor.
ACTION: Final State plan approval.
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SUMMARY: This document amends OSHA's regulations to reflect the
Assistant Secretary's decision granting final approval to the North
Carolina State plan. As a result of this affirmative determination
under section 18(e) of the Occupational Safety and Health Act of 1970,
Federal OSHA's standards and enforcement authority no longer apply to
occupational safety and health issues covered by the North Carolina
plan, and authority for Federal concurrent jurisdiction is
relinquished. Federal enforcement jurisdiction is retained over private
sector maritime activities, 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.
Federal jurisdiction remains in effect with respect to Federal
government employers and employees.
EFFECTIVE DATE: December 10, 1996.
FOR FURTHER INFORMATION CONTACT: Bonnie Friedman, 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:
Introduction
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
[[Page 66594]]
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 court order by the U.S.
District Court for the District of Columbia pursuant to the U.S. Court
of Appeals'' decision in AFL-CIO v. Marshall, 570 F.2d 1030 (D.C. Cir
1978), 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.
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 and continuing approval.
History of the North Carolina Plan and of Its Compliance Staffing
Benchmarks
North Carolina Plan
A history of the North Carolina State plan, a description of its
provisions, and a discussion of the compliance staffing benchmarks
established for North Carolina was contained in the September 13, 1996,
Federal Register notice (61 FR 48446 ) proposing that final approval
under Section 18(e) of the Act be granted. The North Carolina State
plan was submitted on November 27, 1972, initially approved on February
1, 1973 (38 FR 3041), certified as having completed all developmental
steps on October 5, 1976 (41 FR 43896), concurrent Federal enforcement
jurisdiction suspended on February 20, 1975 (40 FR 16843), reinstated
on October 24, 1991 (56 FR 55192) and again suspended on March 7, 1995
(44 FR 12416); and revised compliance staffing benchmarks for North
Carolina were approved on January 17, 1986 (51 FR 2481) and June 4,
1996 (61 FR 28053).
History of the Present Proceedings
Procedures for final approval of State plans are set forth at 29
CFR 1902, Subpart D. On September 13, 1996, OSHA published notice (61
FR 48446) of the eligibility of the North Carolina State plan for
determination under section 18(e) of the Act as to whether final
approval of the plan should be granted. The determination of
eligibility was based on monitoring of State operations for at least
one year following certification, State participation in the Federal-
State Integrated Management Information System, and staffing which
meets the revised State staffing benchmarks.
The September 13 Federal Register notice set forth a general
description of the North Carolina State plan and summarized the results
of Federal OSHA monitoring of State operations during the period from
October 1, 1993 through June 30, 1996. In addition to the information
set forth in the notice itself, OSHA made available as part of the
record extensive and detailed exhibits documenting the plan, including
copies of the State legislation, administrative regulations and
procedural manuals under which North Carolina operates its plan, and
copies of all previous Federal Register notices regarding the plan.
Copies of the most recent comprehensive evaluation report, the
October 1, 1993 through September 30, 1995, Biennial Evaluation Report,
and the ``18(e) Evaluation Report'', covering the period of October 1,
1995 through June 30, 1996 of the North Carolina Plan which was
extensively summarized in the September 13 proposal and provided the
principal factual basis for the proposed 18(e) determination, were
included in the docket.
To assist and encourage public participation in the 18(e)
determination, copies of all docket materials were maintained in the
OSHA Docket Office in Washington, DC., in the OSHA Regional Office in
Atlanta, Georgia, and at the North Carolina Department of Labor,
Division of Occupational Safety and Health in Raleigh, North Carolina.
Summaries of the September 13 notice, with an invitation for public
comments, were published in North Carolina on September 20, 1996, in
the following newspapers: Charlotte Observer, Winston-Salem Journal,
Asheville Citizen Times, Wilmington Morning Star, Raleigh News and
Observer, and The Greensboro New and Record.
The September 13 notice invited interested persons to submit by
October 15 written comments and views regarding the North Carolina plan
and whether final approval should be granted. An opportunity to request
an informal public hearing also was provided. Twenty-six (26) comments
were received in response to this proposal; none requested an informal
hearing.
Summary and Evaluation of Comments
OSHA has encouraged interested members of the public to provide
information and views regarding operations under the North Carolina
plan to supplement the information already gathered during OSHA
monitoring and evaluation of plan administration.
In response to the September 13 proposal, OSHA received comments
from: Don Beussee, Director, Health and Safety Services, Burlington
Industries, Inc. [Ex. 14-1]; Jim H. Conner, Executive Vice President,
The American Yarn Spinners Association, Inc. [Ex. 14-2]; Linda Moore,
Chairperson, NC Tarheel Association of Occupational Health Nurses [Ex.
14-3]; R. Paul Wilms, Director, Regulatory Affairs, NC Home Builders
Association [Ex. 14-4]; Garry Moore, Director of Human Resources,
Kentucky Derby Hosiery Co., Inc. [Ex. 14-5]; Douglas Brackett,
Executive Vice President, American Furniture Manufacturers Association
[Ex. 14-6]; Thomas F. Cecich, Vice President, Environmental Safety,
GlaxoWellcome, Inc. [Ex. 14-7]; Dennis M. Julian, Executive Vice
President, NC Textile Manufacturers Association, Inc. [Ex. 14-8]; W. B.
Jenkins, President, NC Farm Bureau Federation [Ex. 14-9]; Robert W.
Slocum, Jr., Executive Vice President, NC Forestry Association., Inc.
[Ex. 14-10]; James E. McCauley, Director, Safety and Security, Perdue
Farms Inc. [Ex. 14-11]; Judith S. Ostendorf, President, NC Tarheel
Association of Occupational Health Nurses [Ex. 14-12]; Cheryl N.
Kennedy, NC Costal Plains Association of Occupational Health Nurses
[Ex. 14-13]; Ginger Lusk, President, NC Foothills Association of
Occupational Health Nurses [Ex. 14-14]; Robin Lee, Vice President,
Metrolina of NC Association of Occupational Health Nurses [Ex. 14-15];
Lisa Ramber, Manager, Safety and Health, American Textile Manufacturers
Institute [Ex. 14-16]; Henry L. Schmulling, Jr., Manager, Corporate
Safety and Industrial Hygiene, Duke Power Company [Ex. 14-17]; Timothy
J. Pizatella, Acting Director, Division of
[[Page 66595]]
Safety Research, NIOSH [Ex. 14-18]; Belinda S. Worsham, Occupational
Health Nurse Consultant [Ex. 14-20]; June H. Hoyle, Occupational Health
Nurse Practitioner, City of High Point, NC [Ex. 14-21]; Patricia
Dalton, Administrator/Occupational Health, Pitt County Memorial
Hospital [Ex. 14-22]; Lynn H. Hollifield, President, Western NC
Association of Occupational Health Nurses [Ex. 14-23]; Liza Gregg, RN,
MSN, CIC, CPHQ, NC Association of Occupational Health Nurses [Ex. 14-
24]; Connie Bandy, Vice President, NC Costal Plains AOHN [Ex. 14-25];
Bonnie Rogers, President, The American Association of Occupational
Health Nurses, Inc. [Ex. 14-26]; and Doug E. Croft, President, Chamber
of Commerce, Thomasville, North Carolina [Ex. 14-27].
Of the 26 written comments received, ten (10) expressed full
unqualified support for final approval on the grounds of State
competence, responsiveness, innovation and specific knowledge of local
conditions. All of these comments indicated that the State has
established and operates an effective safety and health program without
adversarial relations with local industries and workers, and that the
State has been effective in protecting employees in North Carolina.
Specifically, the commenters commended the State program for, among
other things: its growth over the last four years, doubling its
enforcement and education staffs; offering a full range of educational
and consultative programs to the regulated community to augment a more
focused and efficient enforcement effort; a decline every year since
1992 in the overall occupational injury and illness rate in the State;
and its establishment of an Ergonomics Resource Center in conjunction
with North Carolina State University; its initiation of a series of
partnerships with business and industry trade associations to address
hazards in areas such as logging, home-building, bottling, and
furniture.
Twelve (12) [Exhibits 14-3, 14-12, 14-13, 14-14, 14-15; 14-20; 14-
21; 14-22; 14-23; 14- 24; 14-25; and 14-26] comments were received from
North Carolina affiliates of the Association of Occupational Health
Nurses recommending that the North Carolina program include
occupational health nursing positions in its staffing benchmarks. As
Deputy Commissioner Charles N. Jeffress noted in his responses [Ex. 14-
19A-D; Ex. 14-28; and Ex. 14-29], this issue was also raised by the
Association during OSHA's consideration of the State's proposal to
revise its compliance staffing benchmark levels. However, benchmark
staffing requirements apply solely to personnel engaged in the
enforcement of standards and while an individual with an educational
background in occupational health nursing would be eligible to apply
for such compliance positions, it would be inappropriate to reserve
staffing positions for individuals with a particular occupational
health degree. However, Mr. Jeffress concurs that occupational health
nurses can add value to an occupational safety and health program
particularly in the areas of training and compliance assistance. An
occupational nurse has served as a member of the North Carolina
Occupational Safety and Health Advisory Council and one is on the staff
of the North Carolina Ergonomics Resource Center joint program.
Further, Mr. Jeffress indicates that they have relied on the expertise
and advice of occupational health professionals in other departments
with which they conduct cooperative efforts especially in the areas of
worker health and reporting of occupational illnesses.
Four (4) commenters, Don Beussee, Director, Health and Safety
Services, Burlington Industries, Inc. [Ex. 14-1]; Jim H. Conner,
Executive Vice President, The American Yarn Spinners Association, Inc.
[Ex. 14-2]; Dennis M. Julian, Executive Vice President, North Carolina
Textile Manufacturers Association, Inc. [Ex. 14-8]; and Lisa Ramber,
Manager, Safety and Health, American Textile Manufacturers Institute
[Ex. 14-16], raise concerns about North Carolina's adoption of more
stringent enforcement policies with regard to engineering controls for
noise levels between 90 dBA and 100 dBA and full-shift use of
respirators for cotton dust exposures in the textile industry. All
suggest that these interpretations are inconsistent with Federal OSHA's
standards interpretations and have not been demonstrated to comply with
the ``product clause'' test of the Act that different State standards
must be ``required by compelling local conditions and not cause an
undue burden on interstate commerce.'' Mr. Julian and Mr. Beusse,
nonetheless, support the granting of final approval while Ms. Ramber
requests that the State be required to revise its policies prior to
OSHA granting final approval. Charles Jeffress, Deputy Commissioner of
Labor, responded individually to each of the comments on October 9,
1996, Burlington Industries, Inc. (Ex. 14-19); October 15, 1996,
American Yarn Spinners Association, Inc. (Ex. 14-19A); October 17,
1996, North Carolina Textile Manufacturers Association, Inc. (Ex. 14-
19B); and October 18, 1996, American Textile Manufacturers Institute
(Ex. 14-19C).
North Carolina's standard for noise is identical to the Federal
standard (29 CFR 1910.95). However, North Carolina requires employers
to implement engineering controls, where feasible, when noise levels
are between 90 dBA and 100 dBA. One commenter indicates that this
policy ``* * * requires employers to spend significant resources to
engineer incremental reductions in noise levels * * *'' while still
requiring the use of hearing protection devices. (Federal OSHA policy
allows employers to rely on an effective hearing conservation program
in lieu of engineering controls for noise levels between 92 dBA and
100dBA when this is demonstrated to be more cost effective.) Mr.
Jeffress indicates that North Carolina's policy is consistent with the
Federal policy in effect in 1983 and retention of this policy is ``more
protective'' with the State's emphasis being on ``solving the problem''
rather than relying on a ``difficult to administer'' hearing
conservation program. He further notes that North Carolina requires
only ``feasible'' engineering and administrative controls in these
situations and accepts hearing conservation methods when it is the only
technologically or economically feasible means to control employee
overexposure to noise at these levels. A case contesting this policy,
brought by one of the commenters, Burlington Industries, is currently
before the North Carolina Occupational Safety and Health Review Board.
North Carolina's standard for cotton dust is also identical to the
Federal standard (29 CFR 1910.1043). Federal OSHA's interpretation of
this standard allows the partial-shift wearing of respiratory
protection where engineering controls alone do not reduce each
employee's eight-hour time-weighted exposure to below the permissible
exposure limit (PEL). North Carolina requires that respirators be worn
during the full shift when engineering controls alone have not reduced
exposure to below the PEL in order to afford workers the ``greatest
protection possible'' and in recognition of lung function recovery
which occurs when workers are removed from dusty environments even for
short periods of time. The commenters are particularly concerned that
this policy is also applied to extended shifts of 12 hours where the
eight-hour time weighted average has been engineered below the PEL. Mr.
Jeffress responds that he met
[[Page 66596]]
with representatives of the various associations on this issue on March
27, 1995, and subsequently Commissioner of Labor Harry Payne agreed to
reevaluate North Carolina's policy upon the submission by the industry
of data, such as medical or spirometry data, which can be used to
evaluate the comparative benefits of full-shift respirator usage versus
partial shift. A second meeting occurred on April 17, 1996, with two
industry representatives but no data on health effects has been made
available and no research authorized. North Carolina reiterated its
offer to reconsider its policy upon the submission of appropriate
comparative data. OSHA also investigated a Complaint About State
Program Administration (CASPA) on this issue in 1992 and found the
State's policy to be acceptable. No further comments or objections were
received with regard to that finding at that time.
The OSH Act and implementing regulations require that both State
standards, and the State's interpretations of those standards, be ``at
least as effective as'' corresponding Federal OSHA standards and
interpretations. (Section 18(c)(2); 1902.37(b)(4.) The differences
between State and Federal standards identified in these comments
describe State standards interpretations which are more stringent than
those of Federal OSHA. Therefore, by definition these interpretations
meet the ``at least as effective'' criterion. The further issues as to
whether these standards, as interpreted and administered by the State,
are applicable to products moved or used in interstate commerce; impose
an undue burden on commerce; and are justified by compelling local
conditions are not yet ripe for review as both polices are still under
active consideration within the State, i.e., the noise policy through
on-going contested cases challenging the policy; the full-shift use of
respirators through the State's offer to reconsider the policy through
negotiation with the textile industry.
OSHA, therefore, does not believe that any of the concerns
expressed are sufficient to warrant withholding of final approval of
the North Carolina State Plan especially in light of on-going State
administrative and adjudicatory procedures.
Findings and Conclusions
As required by 29 CFR 1902.41, in considering the granting of final
approval to a State plan, OSHA has carefully and thoroughly reviewed
all information available to it on the actual operation of the North
Carolina State plan. This information has included all previous
evaluation findings since certification of completion of the State
plan's developmental steps, especially data for the period October 1,
1993 through June 30, 1996 and information presented in written
submissions. Findings and conclusions in each of the areas of
performance are as follows:
(1) Standards. 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. Such standards where not identical
to the Federal must be promulgated through a procedure allowing for
consideration of all pertinent factual information and participation of
all interested persons (29 CFR 1902.4(b)(2)(iii)); must, where dealing
with toxic materials or harmful physical agents, assure employee
protection throughout his or her working life (29 CFR 1902.4(b)(2)(I));
must provide for furnishing employees appropriate information regarding
hazards in the workplace through labels, posting, medical examinations,
etc. (29 CFR 1902.4(b)(2)(vi)); must require suitable protective
equipment, technological control, monitoring, etc. (29 CFR
1902.4(b)(2)(vii)); and, where applicable to a product, must be
required by compelling local conditions and not pose an undue burden on
interstate commerce (29 CFR 1902.3(c)(2)).
As documented in the approved North Carolina State plan and OSHA's
evaluation findings made a part of the record in this 18(e)
determination proceeding, and as discussed in the September 13 notice,
the North Carolina plan provides for the adoption of standards and
amendments thereto which are, in most cases, identical to Federal
standards. The State's laws and regulations, previously approved by
OSHA and made a part of the record in this proceeding, include
provisions addressing all of the structural requirements for State
standards set out in 29 CFR part 1902.
In order to qualify for final State plan approval, a State program
must be found to have adhered to its approved procedures (29 CFR
1902.37(b)(2)); to have timely adopted identical or at least as
effective standards, including emergency temporary standards and
standards amendments (29 CFR 1902.37(b)(3)); to have interpreted its
standards in a manner consistent with Federal interpretations and thus
to demonstrate that in actual operation State standards are at least as
effective as the Federal (29 CFR 1902.37(b)(4)); and to correct any
deficiencies resulting from administrative or judicial challenge of
State standards (29 CFR 1902.37(b)(5)).
As noted in the ``18(e) Evaluation Report'' and summarized in the
September 13, 1996, Federal Register notice, North Carolina has adopted
standards in a timely manner which are, in nearly all cases, identical
to Federal standards. Where a State adopts Federal standards, the
State's interpretation and application of such standards must ensure
consistency with Federal interpretation and application. North Carolina
has generally adopted standards interpretations which are identical to
the Federal but in few cases, e.g., noise and cotton dust standards,
has adopted more protective, but nonetheless at least as effective
interpretations. (See discussion above on Comments received from the
textile industry on this issue.)
OSHA's monitoring has found that the State's application of its
standards is comparable to Federal standards application. No challenges
to State standards have occurred in North Carolina.
Therefore, in accordance with section 18(c)(2) of the Act and the
pertinent provisions of 29 CFR 1902.3, 1902.4 and 1902.37, OSHA finds
that the North Carolina program in actual operation provides for
standards adoption, correction when found deficient, interpretation and
application, in a manner at least as effective as the Federal Program.
(2) Variances. A State plan is expected to have the authority and
procedures for the granting of variances comparable to those in the
Federal program (29 CFR 1902.4(b)(2)(iv)). The North Carolina State
plan contains such provisions in both law and regulations which have
been previously approved by OSHA. In order to qualify for final State
plan approval, permanent variances granted must assure employment
equally as safe and healthful as would be provided by compliance with
the standard (29 CFR 1902.37(b)(6)); temporary variances granted must
assure compliances as early as possible and provide appropriate interim
employee protection (29 CFR 1902.37(b)(7)). As noted in the 18(e)
Evaluation Report and the September 13 notice, North Carolina received
one request for a permanent variance during the reporting period. That
request is currently under review by the State. No temporary variance
request was received during the evaluation period and there are no
outstanding issues on variances previously granted.
Accordingly, OSHA finds that the North Carolina program is able to
[[Page 66597]]
effectively grant variances from its occupational safety and health
standards.
(3) Enforcement. Section 18(c)(2) of the Act and 29 CFR
1902.3(c)(1) require a State program to provide a program for
enforcement of State standards which is and will continue to be at
least as effective in providing safe and healthful employment and
places of employment as the Federal program. The State must require
employer and employee compliance with all applicable standards, rules
and orders (29 CFR 1902.3(d)(2)) and must have the legal authority for
standards enforcement including compulsory process (29 CFR
1902.4(c)(2)).
The North Carolina occupational safety and health statutes and
implementing regulations, previously approved by OSHA, establish
employer and employee compliance responsibility and contain legal
authority for standards enforcement in terms substantially identical to
those in the Federal Act. In order to be qualified for final approval,
the State must have adhered to all approved procedures adopted to
ensure an at least as effective compliance program (29 CFR
1902.37(b)(2)). The ``18(e) Evaluation Report'' indicates no
signficiant lack of adherence to such procedures.
(a) Inspections. In order to qualify for final approval, the State
program, as implemented, must allocate sufficient resources toward
high-hazard workplaces while providing adequate attention to other
covered workplaces (29 CFR 1902.37(b)(8)). Data contained in the 18(e)
Evaluation Report noted that North Carolina targets establishments for
programmed inspections based on industry injury/illness rates for
safety and chemical exposure and violation experience for health. North
Carolina has also implemented a cooperative compliance targeting
program, known as the ``North Carolina 248'' program, which targets
employers with the highest worker's compensation claim rates for a
period of three years. North Carolina continues to conduct a higher
percentage of all programmed inspections in the high-hazard industries
in the State.
(b) Employee Notice and Participation in Inspections: State plans
must provide for inspections in response to employee complaints and
must provide for an opportunity for employees and their representatives
to point out possible violations through such means as employee
accompaniment or interviews with employees (29 CFR 1902.4(c)(i) through
(iii)). North Carolina has procedures similar to Federal OSHA for
processing and responding to complaints and providing for employee
participation 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.
Employees participated in inspections in almost every case.
In addition, the State plan must provide that employees be informed
of their protections and obligations under the Act by such means as the
posting of notices (29 CFR 1902.4(c)(2)(iv)), and provide that
employees have access to information on their exposure to regulated
agents and access to records of the monitoring of their exposure to
such agents (29 CFR 1902.4(c)(vi)).
To inform employees and employers of their protections and
obligations, North Carolina requires that a poster approved by OSHA be
displayed in all covered workplaces. Requirements for the posting of
the poster and other notices such as citations, contests, hearings and
variances applications are set forth in the previously approved State
law and regulations which are substantially identical to Federal
requirements. Information on employee exposure to regulated agents and
access to medical and monitoring records is provided through State
standards which are, in most instances, identical to the Federal.
Federal OSHA concluded that the State's performance is satisfactory.
(c) Nondiscrimination. A State is expected to provide appropriate
protection to employees against discharge or discrimination for
exercising their rights under the State's program including provision
for employer sanctions and employee confidentiality (29 CFR
1902.4(c)(2)(v)). North Carolina General Statute 95-240 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. The State received a total
of 66 complaints alleging discrimination during the evaluation period;
60 of the cases had been settled, withdrawn, dismissed, or filed for
litigation by the end of the period. Federal OSHA concluded that the
State's performance is satisfactory.
(d) Restraint of Imminent Danger; Protection of Trade Secrets. A
State plan is required to provide for the prompt restraint of imminent
danger situations (29 CFR 1902.4(c)(2)(vii)), and to provide adequate
safeguards for the protection of trade secrets (29 CFR
1902.4(c)(2)(viii)). The State has provisions concerning imminent
danger and protection of trade secrets in its law, regulations and
field operations manual which are similar to the Federal requirements.
There were no imminent danger situations identified during the
evaluation period. There were no Complaints About State Program
Administration (CASPA's) filed concerning the protection of trade
secrets during the report period.
(e) Right of Entry; Advance Notice. A State program is expected to
have authority for right of entry to inspect and compulsory process to
enforce such right equivalent to the Federal program (section 18(c)(3)
of the Act and 29 CFR 1902.3(e)). In addition, a State is expected to
prohibit advance notice of inspection, allowing exceptions thereto no
broader than the Federal program (29 CFR 1902.3(f)). North Carolina
General Statute 95-133 authorizes the Commissioner to enter and inspect
all covered workplaces in terms substantially identical to those in the
Federal Act. The North Carolina statute also allows the Commissioner to
apply for a warrant to permit entry into such establishments that have
refused entry for the purpose of inspection or investigation. The North
Carolina law allows the Commissioner to issue subpoenas ``to require
the attendance and testimony of witnesses and the production of
evidence under oath'' in regard to Divisional inspections and
investigations. The North Carolina law also prohibits advance notice,
and implementing procedures for exceptions to this prohibition are
substantially identical to the Federal procedures.
In order to be found qualified for final approval, a State is
expected to take action to enforce its right of entry when denied (29
CFR 1902.37(b)(9)) and to adhere to its advance notice procedures.
North Carolina had 10 denials of entry, during the 18(e) evaluation
period, and was successful in obtaining warrants for nine (90%) of
them. North Carolina has adopted and implemented procedures for advance
notice similar to the Federal procedures.
(f) Citations, Penalties, and Abatement. A State plan is expected
to have authority and procedures for promptly notifying employers and
employees of violations identified during inspections, for the purpose
of effective first-instance sanctions against employers found in
violation of standards and for prompt employer notification of such
penalties (29 CFR 1902.4(c)(2) (x) and (xi)). The North Carolina plan,
through its law, regulations and field operations manual has
established a system similar to the Federal program to provide for the
prompt issuance of citations to
[[Page 66598]]
employers delineating violations and establishing reasonable abatement
periods, requiring posting of such citations for employee information,
and proposing penalties.
In order to be qualified for final approval, the State, in actual
operation, must be found to conduct competent inspections in accordance
with approved procedures and to obtain adequate information to support
resulting citations (29 CFR 1902.37(b)(10)), to issue citations,
proposed penalties and failure-to-abate notifications in a timely
manner (29 CFR 1902.37(b)(11)), to propose penalties for first-instance
violations that are at least as effective as those under the Federal
program (29 CFR 1902.37(b)(12)), and to ensure abatement of hazards
including issuance of failure-to-abate notices and appropriate
penalties (29 CFR 1902.37(b)(13)).
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. The State follows
inspection procedures, including documentation procedures, which are
similar to the Federal procedures. The 18(e) Evaluation Report notes
overall adherence by North Carolina to these procedures. North Carolina
cited an average of 5 violations per safety inspection and 3.9
violations per health inspection; and 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. North Carolina's lapse time
from the opening conference 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 lapse time.
North Carolina's procedures for calculation of penalties are
similar to those of Federal OSHA. The 18(e) Evaluation Report noted
that North Carolina proposes appropriate penalties. The average penalty
for serious safety violations was $1,215.10 and the average serious
health penalty was $1,056.30. North Carolina's abatement periods for
serious violations averaged 15.5 days for safety and 6.8 days for
health.
(g) Contested Cases. In order to be considered for initial approval
and certification, a State plan must have authority and procedures for
employer contest of citations, penalties and abatement requirements at
full administrative or judicial hearings. Employees must also have the
right to contest abatement periods and the opportunity to participate
as parties in all proceedings resulting from an employer's contest (29
CFR 1902.4(c)(2)(xii)). North Carolina's procedures for employer and
employee contest of citations, penalties and abatement requirements and
for ensuring employees' rights are contained in the law, regulations
and field operations manual made a part of the record in this
proceeding. As noted elsewhere in this notice, the North Carolina plan
provides for the review of contested cases by the independent North
Carolina Occupational Safety and Health Review Board. State regulation
and procedures provide a 20 working day period for informal conference
which, if held, results in either a settlement agreement or a Notice of
No Change which, in turn, may be contested to the Review Board within
15 working days. On average 4.6% of all inspections with citations are
contested.
To qualify for final approval, the State must seek review of any
adverse adjudications and take action to correct any enforcement
program deficiencies resulting from adverse administrative or judicial
determinations (29 CFR 1902.37(b)(14)). The North Carolina 18(e)
Evaluation Report noted no instances of adverse adjudications.
(h) Enforcement Conclusion. In summary, the Assistant Secretary
finds that enforcement operations provided under the North Carolina
plan are competently planned and conducted, and are overall at least as
effective as Federal OSHA enforcement.
(4) Public Employee Program: Section 18(c)(6) of the Act requires
that a State which has an approved plan must maintain an effective and
comprehensive safety and health program applicable to all employees of
public agencies of the State and its political subdivisions, which
program must be as effective as the standards contained in an approved
plan. 29 CFR 1902.3(j) requires that a State's program for public
employees be as effective as the State's program for private employees
covered by the plan. 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.
During the 18(e) Evaluation period, North Carolina conducted 136
public sector inspections. The proportion of inspections dedicated to
the public sector (5% of total inspections) during the evaluation
period was appropriate to the needs of public employees.
Because North Carolina's performance in the public sector is
comparable to that in the private sector, OSHA concludes that the North
Carolina program meets the criteria in 29 CFR 1902.3(j).
(5) Staffing and Resources. Section 18(c)(4) of the Act requires
State plans to provide the qualified personnel necessary for the
enforcement of standards. In accordance with 29 CFR 1902.37(b)(1), one
factor which OSHA must consider in evaluating a plan for final approval
is whether the State has a sufficient number of adequately trained and
competent personnel to discharge its responsibilities under the plan.
The North Carolina plan provides for 64 safety compliance officers
and 51 industrial hygienists as set forth in the North Carolina FY 1996
and FY 1997 grant applications. 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.
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.
Because North Carolina has allocated sufficient enforcement staff
to meet the revised benchmarks for that State, and personnel are
trained and competent, the requirements for final approval set forth in
29 CFR 1902.37(b)(1), and in the court order in AFL-CIO v. Marshall,
supra, are being met by the North Carolina plan.
Section 18(c)(5) of the Act requires that the State devote adequate
funds to administration and enforcement of its standards. The North
Carolina plan was funded at $12,469,715 in FY 1996. ($3,131,400 (25%)
of the funds were provided by Federal OSHA and $9,338,315 (75%) were
provided by the State.)
As noted in the 18(e) Evaluation report, North Carolina's funding
is judged sufficient in absolute terms; moreover, the State allocates
its resources to the various aspects of the program in an effective
manner. On this basis, OSHA finds that North Carolina has provided
sufficient funding and
[[Page 66599]]
resources for the various activities carried out under the plan.
(6) Record and 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 (section 18(c)(7) of the Act and 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 and 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 well as the OSHA Data
Initiative. 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.
For the foregoing reasons, the OSHA finds that North Carolina has
met the requirements of sections 18(c) (7) and (8) of the Act on
employer and State reports to the Secretary.
(7) Voluntary Compliance: A State plan is required to undertake
programs to encourage voluntary compliance by employers and employees
(29 CFR 1902.4(c)(2)(xiii)).
North Carolina, in the private sector, 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.
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 was one of the semi-finalists in the 1996
Innovations in American Government Awards program.
North Carolina also has initiated a Cooperative Assessment Program
for ergonomics which encourages employers who are being inspected 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 under the plan. In the private sector on-site
consultation services are provided to employers under a cooperative
agreement with OSHA under section 7(c)(1) of the Act and 29 CFR Part
1908.
Accordingly, OSHA finds that North Carolina has established and is
administering an effective voluntary compliance program.
(8) 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 lost workday case rate for all industries remained at
3.5 as it has been since 1989. There were slight increases in
manufacturing, from 4.0 in 1993 to 4.1 in 1994, and in construction,
from 4.7 in 1993 to 5.1 in 1994, but both areas were still below the
nationwide rate of 3.8 for all industries, 5.5 for manufacturing, and
5.5 for construction.
OSHA finds that during the evaluation period trends in worker
injury and illness in North Carolina were comparable with those in
States with Federal enforcement; actual injury and illness rates within
the State were lower.
Decision
OSHA has carefully reviewed the record developed during the above
described proceedings, including all comments received thereon. The
present Federal Register document sets forth the findings and
conclusions resulting from this review.
In light of all the facts presented on the record, the Assistant
Secretary has determined that the North Carolina State plan for
occupational safety and health, which has been monitored for at least
one year subsequent to certification, is in actual operation at least
as effective as the Federal program and meets the statutory criteria
for State plans in section 18(e) of the Act and implementing
regulations at 29 CFR Part 1902. Therefore, the North Carolina State
plan is hereby granted final approval under section 18(e) of the Act
and implementing regulations at 29 CFR part 1902, effective December
10, 1996.
Under this 18(e) determination, North Carolina will be expected to
maintain a State program which will continue to be at least as
effective as operations under the Federal program in providing employee
safety and health at covered workplaces. This requirement includes
submitting all required reports to the Assistant Secretary as well as
submitting plan supplements documenting State-initiated program
changes, changes required in response to adverse evaluation findings,
and responses to mandatory Federal program changes. In addition, North
Carolina must continue to allocate sufficient safety and health
enforcement staff to meet the benchmarks for State compliance staffing
established by the Department of Labor, or any revision to those
benchmarks.
Effect of Decision
The determination that the criteria set forth in section 18(c) of
the Act and 29 CFR Part 1902 are being applied in actual operations
under the North Carolina plan terminates OSHA authority for Federal
enforcement of its standards in North Carolina, in accordance with
section 18(e) of the Act, in those issues covered under the State plan.
Section 18(e) provides that upon making this determination ``the
provisions of sections 5(a)(2), 8 (except for the purpose of carrying
out subsection (f) of this section), 9, 10, 13, and 17, shall not apply
with respect to any occupational safety and health issues covered under
the plan, but the Secretary may retain jurisdiction under the above
provisions in any proceeding commenced under section 9 or 10 before the
date of determination.''
Accordingly, Federal authority to issue citations for violation of
OSHA standards (sections 5(a)(2) and 9); to conduct inspections (except
those necessary to conduct evaluations of the plan under section 18(f),
and other inspections, investigations or proceedings necessary to carry
out Federal responsibilities which are not specifically preempted by
section 18(e) (section 8); to conduct enforcement proceedings in
contested cases (section 10); to institute proceedings to correct
imminent dangers (section 13); and to propose civil penalties or
initiate criminal proceedings for violations of the Federal OSH Act
(section 17) is relinquished as of the effective date of this
determination.
Federal authority under provisions of the Act not listed in section
18(e) is unaffected by this determination. Thus, for example, the
Assistant Secretary
[[Page 66600]]
retains his authority under section 11(c) of the Act with regard to
complaints alleging discrimination against employees because of the
exercise of any right afforded to the employee by the Act although such
complaints may be initially referred to the State for investigation.
Any proceeding initiated by OSHA under sections 9 and 10 of the Act
prior to the date of this final determination would remain under
Federal jurisdiction. The Assistant Secretary also retains his
authority under section 6 of the Act to promulgate, modify or revoke
occupational safety and health standards which address the working
conditions of all employees, including those in States which have
received an affirmative 18(e) determination. In the event that a
State's 18(e) status is subsequently withdrawn and Federal authority
reinstated, all Federal standards, including any standards promulgated
or modified during the 18(e) period, would be Federally enforceable in
the State.
In accordance with section 18(e), this determination relinquishes
Federal OSHA authority only with regard to occupational safety and
health issues covered by the North Carolina plan, and OSHA retains full
authority over issues which are not subject to State enforcement under
the plan. Thus, for example, Federal OSHA retains its authority to
enforce all provisions of the Act, and all Federal standards, rules or
orders which relate to safety or health coverage of private sector
maritime activities (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); 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. In addition Federal OSHA may subsequently initiate the exercise
of jurisdiction over any issue (hazard, industry, geographical area,
operation or facility) for which the State is unable to provide
effective coverage for reasons which OSHA determines are not related to
the required performance or structure of the State plan.
As provided by section 18(f) of the Act, the Assistant Secretary
will continue to evaluate the manner in which the State is carrying out
its plan. Section 18(f) and regulations at 29 CFR part 1955 provide
procedures for the withdrawal of Federal approval should the Assistant
Secretary find that the State has subsequently failed to comply with
any provision or assurance contained in the plan. Additionally, the
Assistant Secretary is required to initiate proceeding to revoke an
18(e) determination and reinstate concurrent Federal authority under
procedures set forth in 29 CFR 1902.47, et seq., if his evaluations
show that the State has substantially failed to maintain a program
which is at least as effective as operations under the Federal program,
or if the State does not submit program change supplements to the
Assistant Secretary as required by 29 CFR part 1953.
Explanation of Changes to 29 CFR Part 1952
29 CFR part 1952 contains, for each State having an approved plan,
a subpart generally describing the plan and setting forth the Federal
approval status of the plan. 29 CFR 1902.43(a)(3) requires that notices
of affirmative 18(e) determinations be accompanied by changes to part
1952 reflecting the final approval decision. This notice makes changes
to subpart I of part 1952 to reflect the final approval of the North
Carolina plan.
The table of contents for part 1952, subpart I, has been revised to
reflect the following changes:
The heading of section 1952.152, Completion of developmental steps,
has been revised by adding the words ``and certification'' at the end.
A new section 1952.154, Final approval determination, which
formerly was reserved, has been added to reflect the determination
granting final approval of the plan. This section contains a more
accurate description of the current scope of the plan than the one
contained in the initial approval decision.
Section 1952.155, Level of Federal enforcement, has been revised to
reflect the State's 18(e) status. This replaces the former description
of the relationship of State and Federal enforcement under an
Operational Status agreement voluntarily suspending Federal enforcement
authority, which was entered into on February 20, 1975. (Federal
enforcement jurisdiction was partially reinstituted on October 24,
1991, and again fully suspended on March 7, 1995.) Federal concurrent
enforcement authority has been relinquished as part of the present
18(e) determination for North Carolina. Section 1952.155 describes the
issues over which Federal authority has been terminated and the issues
for which it has been retained in accordance with the discussion of the
effects of the 18(e) determination set forth earlier in the present
Federal Register notice.
Section 1952.156, Where the plan may be inspected, has been revised
to reflect a new room number N3700 for the Office of State Programs,
Directorate of Federal-State Operations, Occupational Safety and Health
Administration, U.S. Department of Labor, Washington, DC 20210; and a
new street address 319 Chapanoke Road--Suite 105 for the North Carolina
Department of Labor, Division of Occupational Safety and Health,
Raleigh, North Carolina 27603-3432.
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.
This document was prepared under the direction of Joseph A. Dear,
Assistant Secretary of Labor for Occupational Safety and Health. It is
issued under Section 18 of the OSH Act, (29 U.S.C. 667), 29 CFR Part
1902, and Secretary of Labor's Order No. 1-90 (55 FR 9033)).
Signed at Washington, DC, this 10th day of December 1996.
Joseph A. Dear,
Assistant Secretary.
Part 1952 of 29 CFR is hereby amended as follows:
PART 1952--[AMENDED]
1. The authority citation for part 1952 continues to read as
follows:
Authority: Section 18 of the OSH Act, (29 U.S.C. 667), 29 CFR
part 1902, and Secretary of Labor's Order No. 1-90 (55 FR 9033).
2. The table of contents for part 1952, subpart I is revised to
read as follows.
Subpart I--North Carolina
Sec.
1952.150 Description of the plan as initially approved.
1952.151 Developmental schedule.
1952.152 Completion of developmental steps and certification.
1952.153 Compliance staffing benchmarks.
[[Page 66601]]
1952.154 Final approval determination.
1952.155 Level of Federal enforcement.
1952.156 Where the plan may be inspected.
1952.157 Changes to approved plan.
Sec. 1952.152 [Amended]
3. The heading of Sec. 1952.152 is revised to read ``Completion of
developmental steps and certification.''
4. A new Sec. 1952.154 is added, and Secs. 1952.155 and 1952.156
are revised to read as follows:
Sec. 1952.154 Final approval determination.
(a) In accordance with section 18(e) of the Act and procedures in
29 CFR part 1902, and after determination that the State met the
``fully effective'' compliance staffing benchmarks as revised in 1984
and 1996 in response to a court order in AFL-CIO versus Marshall, 570
F.2d 1030 (D.C. Cir. 1978), and was satisfactorily providing reports to
OSHA through participation in the Federal-State Integrated Management
Information System, the Assistant Secretary evaluated actual operations
under the North Carolina State plan for a period of at least one year
following certification of completion of developmental steps ( 41 FR
43896). Based on the Biennial Evaluation Report covering the period of
October 1, 1993 through September 30, 1995, an 18(e) Evaluation Report
covering the period October 1, 1995 through June 30, 1996, and after
opportunity for public comment, the Assistant Secretary determined that
in operation the State of North Carolina's occupational safety and
health program is at least as effective as the Federal program in
providing safe and healthful employment and places of employment and
meets the criteria for final State plan approval in section 18(e) of
the Act and implementing regulations at 29 CFR part 1902. Accordingly,
the North Carolina plan was granted final approval and concurrent
Federal enforcement authority was relinquished under section 18(e) of
the Act effective December 10, 1996.
(b) Except as otherwise noted, the plan which has received final
approval covers all activities of employers and all places of
employment in North Carolina. The plan does not cover Federal
government employers and employees; private sector maritime activities;
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.
(c) North Carolina is required to maintain a State program which is
at least as effective as operations under the Federal program; to
submit plan supplements in accordance with 29 CFR part 1953; to
allocate sufficient safety and health enforcement staff to meet the
benchmarks for State staffing established by the U.S. Department of
Labor, or any revisions to those benchmarks; and, to furnish such
reports in such form as the Assistant Secretary may from time to time
require.
Sec. 1952.155 Level of Federal enforcement.
(a) As a result of the Assistant Secretary's determination granting
final approval to the North Carolina State plan under section 18(e) of
the Act, effective December 10, 1996, occupational safety and health
standards which have been promulgated under section 6 of the Act do not
apply with respect to issues covered under the North Carolina Plan.
This determination also relinquishes concurrent Federal OSHA authority
to issue citations for violations of such standards under section
5(a)(2) and 9 of the Act; to conduct inspections and investigations
under section 8 (except those necessary to conduct evaluation of the
plan under section 18(f) and other inspections, investigations, or
proceedings necessary to carry out Federal responsibilities not
specifically preempted by section 18(e)); to conduct enforcement
proceedings in contested cases under section 10; to institute
proceedings to correct imminent dangers under section 13; and to
propose civil penalties or initiate criminal proceedings for violations
of the Federal OSH Act under section 17. The Assistant Secretary
retains jurisdiction under the above provisions in any proceeding
commenced under section 9 or 10 before the effective date of the 18(e)
determination.
(b)(1) In accordance with section 18(e), final approval
relinquishes Federal OSHA authority only with regard to occupational
safety and health issues covered by the North Carolina plan. OSHA
retains full authority over issues which are not subject to State
enforcement under the plan. Thus, Federal OSHA retains its authority
relative to safety and health in private sector maritime activities and
will continue to enforce all provisions of the Act, rules or orders,
and all Federal standards, current or future, specifically directed to
private sector maritime activities (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); 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. Federal jurisdiction is also retained with respect
to Federal government employers and employees.
(2) In addition, any hazard, industry, geographical area, operation
or facility over which the State is unable to effectively exercise
jurisdiction for reasons which OSHA determines are not related to the
required performance or structure of the plan shall be deemed to be an
issue not covered by the State plan which has received final approval,
and shall be subject to Federal enforcement. Where enforcement
jurisdiction is shared between Federal and State authorities for a
particular area, project, or facility, in the interest of
administrative practicability Federal jurisdiction may be assumed over
the entire project or facility. In any of the aforementioned
circumstances, Federal enforcement authority may be exercised after
consultation with the State designated agency.
(c) Federal authority under provisions of the Act not listed in
section 18(e) is unaffected by final approval of the North Carolina
State plan. Thus, for example, the Assistant Secretary retains his
authority under section 11(c) of the Act with regard to complaints
alleging discrimination against employees because of the exercise of
any right afforded to the employee by the Act, although such complaints
may be referred to the State for investigation. The Assistant Secretary
also retains his authority under section 6 of the Act to promulgate,
modify or revoke occupational safety and health standards which address
the working conditions of all employees, including those in States
which have received an affirmative 18(e) determination, although such
standards may not be Federally applied. In the event that the State's
18(e) status is subsequently withdrawn and Federal authority
reinstated, all Federal standards, including any standards promulgated
or modified during the 18(e) period, would be Federally enforceable in
that State.
(d) As required by section 18(f) of the Act, OSHA will continue to
monitor the operations of the North Carolina State program to assure
that the provisions of the State plan are substantially complied with
and that the program remains at least as effective as the Federal
program. Failure by the State to comply with its obligations may result
in the revocation of the final approval determination under Section
18(e),
[[Page 66602]]
resumption of Federal enforcement, and/or proceedings for withdrawal of
plan approval.
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, Directorate of Federal-State Operations,
Occupational Safety and Health Administration, U.S. Department of
Labor, 200 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
North Carolina Department of Labor, Division of Occupational Safety
and Health, 319 Chapanoke Road--Suite 105, Raleigh, North Carolina
27603-3432.
[FR Doc. 96-32083 Filed 12-17-96; 8:45 am]
BILLING CODE 4510-26-P
