[Federal Register Volume 59, Number 159 (Thursday, August 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20143]


[[Page Unknown]]

[Federal Register: August 18, 1994]


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DEPARTMENT OF LABOR
29 CFR Part 1952

[Docket No. T-025]

 

New Mexico State Plan: Approval of Revised Compliance Staffing 
Benchmarks

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

ACTION: Final rule; approval of revised State compliance staffing 
benchmarks.

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SUMMARY: This document amends agency regulations to reflect the 
Assistant Secretary's decision to approve revised compliance staffing 
benchmarks for the New Mexico State plan.

EFFECTIVE DATE: August 18, 1994.

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, D.C. 20210, (202) 219-8148.

SUPPLEMENTARY INFORMATION: 

Background

    Section 18 of the Occupational Safety and Health Act of 1970 (``the 
Act,'' 29 U.S.C. 651 et seq.) provides that States which desire to 
assume responsibility for developing and enforcing occupational safety 
and health standards may do so by submitting, and obtaining Federal 
approval of, a State plan. Section 18(c) of the Act sets forth the 
statutory criteria for plan approval, and among these criteria is the 
requirement that the State's plan provide satisfactory assurances that 
the 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. The State of New Mexico participated in this benchmark 
revision process, which resulted in a methodology whereby a State could 
submit data that would justify revision of its 1980 benchmarks. In May 
1992, New Mexico proposed to the Assistant Secretary revised compliance 
staffing levels for a ``fully effective'' program responsive to the 
occupational safety and health needs of the State. (A complete 
discussion of both the 1980 benchmarks and the present revision system 
process is set forth in the January 16, 1985 Federal Register (50 FR 
2491) regarding the Wyoming occupational safety and health plan.)

Proposed Revision of Benchmarks

    In 1980, OSHA submitted a report to the Court containing the 
benchmarks and requiring New Mexico to allocate 11 safety compliance 
officers and 17 industrial hygienists. Pursuant to the initiative begun 
in August 1983 by the State plan designees as a group, and in accord 
with the formula and general principles established by that group for 
individual State revision of benchmarks, New Mexico reassessed the 
compliance staffing necessary for a ``fully effective'' occupational 
safety and health program in the State.
    In May 1992, the New Mexico Environmental 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. This reassessment resulted in a 
proposal to OSHA of revised compliance staffing benchmarks of 7 safety 
and 3 health compliance officers for the State of New Mexico.

History of the Present Proceedings

    On March 29, 1994, the Occupational Safety and Health 
Administration published notice in the Federal Register of its proposal 
to approve revised compliance staffing benchmarks for New Mexico (59 FR 
14587). A detailed description of the methodology and State-specific 
information used to develop the revised compliance staffing levels for 
New Mexico was included in the notice. In addition, OSHA submitted, as 
a part of the record, detailed submissions containing both narrative 
explanation and supporting data for New Mexico's proposed revised 
benchmarks (Docket No. T-025). A summary of the benchmark revision 
process is set forth in the January 16, 1985 Federal Register notice 
concerning the Wyoming State plan (50 FR 2491). An informational record 
was established in a separate docket (Docket No. T-018) and contained 
background information relevant to the benchmark issue and the current 
benchmark revision process.
    To assistant and encourage public participation in the benchmark 
revision process, a copy of New Mexico's complete record was maintained 
in the OSHA Docket Office in Washington, D.C. Copies of New Mexico's 
record were also maintained in the OSHA Region VI Office in Dallas, 
Texas, and in the Office of the New Mexico Environment Department, 
Occupational Safety and Health Bureau, in Santa Fe, New Mexico.
    The March 29 proposal invited interested parties to submit, by May 
3, 1994, written comments and views regarding whether New Mexico's 
proposed revised compliance staffing benchmark levels should be 
approved. No comments were received regarding New Mexico's proposed 
benchmarks.

Decision

    OSHA has carefully reviewed the record developed during the above 
described proceedings. In light of all the facts presented on the 
record, including the absence of any objections from interested 
parties, the Assistant Secretary has determined that the revised 
compliance staffing levels proposed for New Mexico meet the 
requirements of the 1978 Court Order in AFL-CIO v. Marshall in 
providing the number of safety and health compliance officers for a 
``fully effective'' enforcement program. Therefore, the revised 
compliance staffing levels of 7 safety and 3 health for New Mexico are 
approved.

Effect of Decision

    The approval of the revised staffing levels for New Mexico, set 
forth elsewhere in this notice, establishes the requirement for a 
sufficient number of adequately trained and qualified compliance 
personnel as set forth in Section 18(c) of the Act and 29 CFR 
1902.37(b)(1). These benchmarks are established pursuant to the 1978 
Court Order in AFL-CIO v. Marshall and define the compliance staffing 
levels necessary for a ``fully effective'' program in New Mexico. The 
allocation of sufficient staffing to meet the benchmarks is one of the 
conditions necessary for States to receive an 18(e) determination 
(final State plan approval) with its resultant relinquishment of 
concurrent Federal enforcement jurisdiction.

Explanation of Changes to 29 CFR Part 1952

    29 CFR 1952 contains, for each State having an approved 
occupational safety and health plan, a subpart generally describing the 
plan and setting forth the Federal approval status of the plan. This 
notice makes several changes to Subpart DD to reflect the approval of 
New Mexico's revised compliance staffing benchmarks, as well as to 
reflect minor editorial modifications to the structure of the Subpart.
    A new Sec. 1952.393, Compliance staffing benchmarks, has been added 
to Subpart DD to reflect the approval of the revised benchmarks for New 
Mexico.
    While most of the existing subparts have been retained, paragraphs 
within the subpart have been rearranged and renumbered so that the 
major steps in the development of the plan (initial approval, 
developmental steps and certification of completion of developmental 
steps) are set forth in chronological order.
    Related editorial changes to the subparts include modification of 
the heading of Sec. 1952.360 to clearly identify the initial plan 
approval of New Mexico. The addresses of locations where the New Mexico 
plan may be inspected have been updated and are found at Sec. 1952.366.

Regulatory Flexibility Act

    OSHA certifies, pursuant to the Regulatory Act of 1980 (5 U.S.C. 
601, et seq.), that this rulemaking will not have significant economic 
impact on a substantial number of small entities. Approval of the 
revised compliance staffing benchmarks for New Mexico will not place 
small employers in the State under any new or different requirements 
nor would any additional burden be placed upon the State government 
beyond the responsibilities already assumed as part of the approved 
plan.

List of Subjects in 29 CFR Part 1952

    Intergovernmental relations, Law enforcement, Occupational safety 
and health.

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

    Signed at Washington, DC, this 11th day of August 1994.
Joseph A. Dear,
Assistant Secretary of Labor.

PART 1952--[AMENDED]

    Accordingly, Subpart DD of 29 CFR Part 1952 is amended as follows:

Subpart DD--New Mexico

    1. The authority citation for Part 1952 continues to read:

    Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR Part 
1902, Secretary of Labor's Order No. 1-90 (55 FR 9033).

    2. Section 1952.360 is amended by revising the heading to read:


Sec. 1952.360  Description of the plan as initially approved.


Sec. 1952.365  [Redesignated as Sec. 1952.367]


Sec. 1952.362  [Redesignated as Sec. 1952.365]

    3. Section 1952.365 is redesignated as Sec. 1952.367 and 
Sec. 1952.362 is redesignated as Sec. 1952.365.


Sec. 1952.362  [Redesignated from Sec. 1952.364]


Sec. 1952.364  [Reserved]

    4. Section 1952.364 (``Completion of developmental steps and 
certification'') is redesignated as Sec. 1952.362, and a new 
Sec. 1952.364 is added and reserved.


Sec. 1952.361  [Redesignated as Sec. 1952.366]

    5. Section 1952.361 is redesignated as Sec. 1952.366 and revised to 
read as follows:


Sec. 1952.366  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations: Office of State Programs, Occupational Safety and Health 
Administration, U.S. Department of Labor, 200 Constitution Avenue, 
N.W., Room N3700, Washington, D.C. 20210; Office of the Regional 
Administrator, Occupational Safety and Health Administration, U.S. 
Department of Labor, Room 602, 525 Griffin Street, Dallas, Texas 75202; 
and New Mexico Environment Department, Occupational Safety and Health 
Bureau, 1190 St. Francis Drive, Santa Fe, New Mexico 87502.


Sec. 1952.361  [Redesignated from Sec. 1952.363]

    6. Section 1952.363 is redesignated as Sec. 1952.361 and a new 
Sec. 1952.363 is added to read as follows:


Sec. 1952.363  Compliance staffing benchmarks.

    Under the terms of the 1978 Court Order in AFL-CIO v. Marshall, 
compliance staffing levels (``benchmarks'') necessary for a ``fully 
effective'' enforcement program were required for each State operating 
an approved State plan. In May 1992, New Mexico completed, in 
conjunction with OSHA, a reassessment of the staffing levels initially 
established in 1980 and proposed revised benchmarks of 7 safety and 3 
health compliance officers. After opportunity for public comment and 
service on the AFL-CIO, the Assistant Secretary approved these revised 
staffing requirements on August 11, 1994.

[FR Doc. 94-20143 Filed 8-17-94; 8:45 am]
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