[Federal Register Volume 59, Number 60 (Tuesday, March 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7254]


[[Page Unknown]]

[Federal Register: March 29, 1994]


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DEPARTMENT OF LABOR
29 CFR Part 1952

[Docket No. T-025]

 

New Mexico State Plan: Proposed Revision to State Staffing 
Benchmarks; Request for Comments

AGENCY: Department of Labor, Occupational Safety and Health 
Administration (OSHA).

ACTION: Proposed revision to State compliance staffing benchmarks; 
request for written comments.

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SUMMARY: This document gives notice of the proposed revision of 
compliance staffing benchmarks applicable to the New Mexico State plan. 
New Mexico's benchmarks were originally established in April 1980 in 
response to the U.S. Court of Appeals decision in AFL-CIO v. Marshall, 
570 F. 2d 1030 (D.C. Cir. 1978). The State of New Mexico has 
reconsidered the information utilized in the development of its 1980 
benchmarks and determined that changes in local conditions and improved 
inspection data warrant revision of its benchmarks. OSHA is soliciting 
written public comments to afford interested persons an opportunity to 
present their views regarding whether or not the revised benchmarks for 
New Mexico should be approved.

DATES: Written comments must be received by May 3, 1994.

ADDRESSES: Written comments should be submitted, in quadruplicate, to 
the Docket Officer, Docket No. T-025, U.S. Department of Labor, room N-
2625, 200 Constitution Avenue, NW., Washington, DC 20210, (202) 219-
7894.

FOR FURTHER INFORMATION CONTACT: James Foster, Director, Office of 
Information and Consumer Affairs, Occupational Safety and Health 
Administration, U.S. Department of Labor, room N-3637, 200 Constitution 
Avenue, NW., Washington, DC 20210, (202) 219-8148.

SUPPLEMENTARY INFORMATION:

Background

    Section 18 of the Occupational Safety and Health Act of 1970 (``the 
Act,'' 29 U.S.C. 651 et seq.) provides that States which desire to 
assume responsibility for developing and enforcing occupational safety 
and health standards may do so by submitting, and obtaining Federal 
approval of, a State plan. Section 18(c) of the Act sets forth the 
statutory criteria for plan approval, and among these criteria is the 
requirement that the State's plan provide satisfactory assurances that 
the state agency or agencies responsible for implementing the plan have 
``* * * the qualified personnel necessary for the enforcement of * * * 
standards,'' 29 U.S.C. 667(c)(4).
    A 1978 decision of the U.S. Court of Appeals and the resultant 
implementing order issued by the U.S. District Court for the District 
of Columbia (AFL-CIO v. Marshall, C.A. No. 74-406) interpreted this 
provision of the Act to require States operating approved State plans 
to have sufficient compliance personnel necessary to assure a ``fully 
effective'' enforcement effort. The Assistant Secretary of Labor for 
Occupational Safety and Health (the Assistant Secretary) was directed 
to establish ``fully effective'' compliance staffing levels, or 
benchmarks, for each State plan.
    In 1980 OSHA submitted a Report to the Court containing these 
benchmarks and requiring New Mexico to allocate 11 safety and 17 health 
compliance personnel to conduct inspections under the plan. Attainment 
of the 1980 benchmark levels or subsequent revision thereto is a 
prerequisite for State plan final approval consideration under section 
18(e) of the Act.
    Both the 1978 Court Order and the 1980 Report to the Court 
explicitly contemplate subsequent revisions to the benchmarks in light 
of more current data, including State-specific information, and other 
relevant considerations. In August 1983 OSHA, together with State plan 
representatives, initiated a comprehensive review and revision of the 
1980 benchmarks. A complete discussion of both the 1980 benchmarks and 
the present revision system process is set forth in the January 16, 
1985 Federal Register (50 FR 2491) regarding the Wyoming occupational 
safety and health plan.
    The New Mexico plan, which was granted initial State plan approval 
on December 10, 1975 (40 FR 57456), is administered by the Occupational 
Health and Safety Bureau of the New Mexico Environment Department. 
Concurrent Federal enforcement jurisdiction was suspended in New Mexico 
with the publication of an Operational Status Agreement on June 11, 
1982 (47 FR 25326). The plan was certified has having satisfactorily 
completed all of its developmental commitments on December 17, 1984 (49 
FR 48918).

Proposed Revision of Benchmarks

    In May 1992, the New Mexico Environment Department (the designated 
agency or ``designee'' in the State) completed, in conjunction with 
OSHA, a review of the compliance staffing benchmarks approved for New 
Mexico in 1980. In accord with the formula and general principles 
established by the joint Federal/State task group for the revision of 
the 1980 benchmarks, New Mexico reassessed the staffing necessary for a 
``fully effective'' occupationsl safety and health program in the 
State. This reassessment resulted in a proposal, contained in 
supporting documents, of revised staffing benchmarks of 7 safety and 3 
health compliance officers.
    The proposed revised safety benchmark contemplates biennial general 
schedule inspection of all private sector manufacturing establishments 
with greater than 10 employees (based upon a computerized summary 
utilizing the 1981 Unemployment Insurance Listing of Employers for New 
Mexico) in Standard Industrial Classifications whose Lost Workday Case 
Injury Rate is higher than the overall State private sector rate (as 
determined by the Bureau of Labor Statistics' (BLS) Annual Occupational 
Injury and Illness Survey). Data indicate that the State is spending an 
average of 12 hours on such inspections, and each State safety 
inspector is able to devote 1,656 hours annually to actual inspection 
activity based on State personnel practices. Establishments have been 
added to this initial general inspection universe based on the State's 
analysis of past injury and inspection experience to identify those 
employers or groups of employers most likely to have hazards that could 
be eliminated by inspection. In addition, inspection resources are 
allocated to coverage of mobile and public employee (State and local 
government) work sites, response to complaints and accidents, and 
follow-up inspections to ascertain compliance, based upon recent 
historical experience and an assessment of proper safety coverage in 
the State of New Mexico.
    The proposed revised health benchmark contemplates general schedule 
inspection coverage once every three years of all private sector 
manufacturing establishments with greater than 10 employees (based upon 
a computerized summary utilizing the 1981 Unemployment Insurance 
Listing of Employers for New Mexico) in the 150 Standard Industrial 
Classifications (SICs) in the State having the highest likelihood of 
exposure to health hazards. These SICs are determined by a health 
ranking system utilizing data from the National Occupational Hazards 
Survey (NOHS), as published in 1977, which assesses the potency and 
toxicity of substances in use in the State. The State has historically 
spent an average 25 hours on such inspections, and each health 
compliance officer is able to devote 1,656 hours annually to actual 
inspection activity, based upon State personnel practices. 
Establishments have been added to this initial general schedule 
universe based on the State's knowledge gained from inspection 
experience and other data on the extent of employee exposure to and use 
of toxic substances and harmful physical agents by individual employers 
or groups of employers, and the extent to which hazardous exposures can 
be eliminated by inspection. In addition, inspection resources are 
allocated to coverage of mobile and public employee (State and local 
government) work sites, response to complaints and accidents, and 
follow-up inspections to ascertain compliance, based on recent 
historical experience and an assessment of proper health coverage in 
the State of New Mexico.
    OSHA has reviewed the State's proposed revised benchmarks and 
supporting documentation, prepared a narrative describing the State's 
submission, and determined that the proposed compliance staffing levels 
appear to meet the requirements of the Court in AFL-CIO v. Marshall and 
provide staff sufficient to ensure a ``fully effective enforcement 
program.''

Effect of Benchmark Revision

    Consistent with the 1978 Court Order in AFL-CIO v. Marshall and the 
procedures for implementation of benchmarks described by OSHA in the 
1980 Report to the Court, if the proposed revised benchmarks are 
approved by OSHA, the State must allocate a sufficient number of safety 
and health enforcement staff to meet the revised benchmarks in order to 
be eligible for final approval under section 18(e) of the Act. Approval 
of the revised benchmarks would be accompanied by an amendment to 29 
CFR part 1952, subpart DD, which generally describes the New Mexico 
plan and sets forth the State's revised safety and health benchmark 
levels.

Documents of Record

    A comprehensive document containing the proposed revision to New 
Mexico's benchmarks, including a narrative of the State's submission 
and supporting statistical data has been made a part of the record in 
this proceeding and is available for public inspection and copying at 
the following locations:

Docket Office, Docket No. T-25, U.S. Department of Labor, room N-
2625, 200 Constitution Avenue, NW., Washington, DC 20210.
Regional Administrator--Region VI, U.S. Department of Labor--OSHA, 
room 602, 525 Griffin Street, Dallas, Texas 75202.
New Mexico Environment Department, Occupational Safety and Health 
Bureau, 1190 St. Francis Drive, Santa Fe, New Mexico 87502.

    In addition, to facilitate informed public comment, an 
informational record has been established in a separate docket (No. T-
018) containing background information relevant to the benchmark issue 
in general and the current benchmark revision process. This information 
docket includes, among other material, the 1978 Court of Appeals 
decision in AFL-CIO v. Marshall, the 1978 implementing Court Order, the 
1980 Report to the Court, and a report describing the 1983-1984 
benchmark revision process. It is also available for public inspection 
and copying at the following location:

Docket Office, Docket No. T-018, U.S. Department of Labor, room N-
2625, 200 Constitution Avenue, NW., Washington, DC 20210.

Public Participation

    OSHA is soliciting public participation in its consideration of the 
approval of the revised New Mexico benchmarks to assure that all 
relevant information, views, data and arguments are available to the 
Assistant Secretary during this proceeding. Members of the public are 
invited to submit written comments in relation to whether the proposed 
revised benchmarks will provide for a fully effective enforcement 
program for New Mexico in accordance with the Court Order in AFL-CIO v. 
Marshall. Comments must be received on or before May 3, 1994, and be 
submitted in quadruplicate to the Docket Office, Docket No. T-025, U.S. 
Department of Labor, room N-2625, 200 Constitution Avenue, NW., 
Washington, DC 20210. Written submissions must be directed to the 
specific benchmarks proposed for New Mexico and must clearly identify 
the issues which are addressed and the positions taken with respect to 
each issue.
    All written submissions as well as other information gathered by 
OSHA will be considered in any action taken. The record of this 
proceeding, including written comments and all material submitted in 
response to this notice, will be made available for public inspection 
and copying in the Docket Office, room N-2625, at the previously 
mentioned address, between the hours of 8:15 a.m. and 4:45 p.m.

List of Subjects in 29 CFR Part 1952

    Intergovernmental relations, Law enforcement, Occupational safety 
and health.

(Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR Part 1902, Secretary 
of Labor's Order No. 9-83 (43 FR 35736))

    Signed at Washington, DC, this 18th day of March 1994.
Joseph A. Dear,
Assistant Secretary of Labor.
[FR Doc. 94-7254 Filed 3-28-94; 8:45 am]
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