[Federal Register Volume 60, Number 44 (Tuesday, March 7, 1995)]
[Proposed Rules]
[Pages 12488-12490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5503]



 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / 
Proposed Rules  
[[Page 12488]]

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

[Docket No. T-015A]


North Carolina 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 (i.e., the number of compliance 
personnel necessary to assure a ``fully effective'' enforcement effort) 
applicable to the North Carolina State plan. North Carolina's 
benchmarks of 83 safety inspectors and 119 industrial hygienists 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), and revised on January 17, 1986 (51 FR 2481) to 50 safety 
inspectors and 27 industrial hygienists. The North Carolina State plan 
has reconsidered the information utilized in its initial revision of 
the State's 1980 benchmarks and determined that changes in local 
conditions and improved inspection data warrant further revision of its 
benchmarks to 64 safety inspectors and 50 industrial hygienists. OSHA 
is soliciting written public comments to afford interested persons an 
opportunity to present their views regarding whether or not the 
proposed revised benchmarks for North Carolina will provide the State 
with sufficient compliance personnel necessary to assure a ``fully 
effective'' enforcement effort and, consequently, should be approved.

DATES: Written comments must be received by April 11, 1995.

ADDRESSES: Written comments should be submitted, in quadruplicate, to 
the Docket Officer, Docket No. T-015A, U.S. Department of Labor, Room 
N-2625, 200 Constitution Avenue, NW., Washington, DC 20210, (202) 219-
7894.

FOR FURTHER INFORMATION CONTACT: Richard Liblong, 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) 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 ensuing 
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 (safety inspectors and 
industrial hygienists) 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 North Carolina to allocate 83 safety and 119 
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 contemplates subsequent revisions to the benchmarks in light 
of more current data, including State-specific information, and other 
relevant considerations. In August 1983, OSHA and the State plan 
representatives initiated a comprehensive review of the 1980 benchmark 
and developed a formula that each State could use to revise its 
benchmarks when circumstances warranted such revision. (A complete 
discussion of both the 1980 benchmarks and the benchmark revision 
process is set forth in the January 16, 1985 Federal Register (50 FR 
2491) regarding the Wyoming occupational safety and health plan.)
    The State of North Carolina participated in this benchmark revision 
process and, in September 1984, requested that the Assistant Secretary 
approve revised compliance staffing levels of 50 safety and 27 health 
compliance officers for a ``fully effective'' program responsive to the 
occupational safety and health needs and circumstances in the State. 
These revised benchmarks were approved by the Assistant Secretary 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 renegotiate the 
appropriate number of 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.
    In September 1991, a catastrophic fire occurred at a poultry 
processing plant in North Carolina, resulting in the reinstitution of 
limited Federal concurrent jurisdiction and a special Federal 
evaluation of the State's occupational safety and health operations. 
The revision of North Carolina's benchmarks was suspended during this 
time. Significant legislative and budgetary changes were made in the 
North Carolina State program and, for Fiscal Year 1995, the State 
authorized compliance staffing of 64 safety and 51 health inspectors. 
The North Carolina Department of Labor has requested that the Assistant 
Secretary [[Page 12489]] resume consideration of State's proposed 
revision of its benchmarks at this time.
    The North Carolina plan, which was granted initial State plan 
approval on February 1, 1973 (38 FR 3041), is administered by the North 
Carolina Department of Labor. The exercise of concurrent Federal 
enforcement authority was suspended in North Carolina on February 20, 
1975, with the signing of an Operational Status Agreement (April 15, 
1975, 40 FR 16843). Limited Federal enforcement authority was 
reasserted on October 14, 1991 (56 FR 55193), but it is anticipated 
that this authority will be suspended in the near future. The plan was 
certified as having satisfactorily completed all of its developmental 
commitments on October 5, 1976 (41 FR 43901).

Proposed Revision of Benchmarks

    In June 1990, the North Carolina Department of Labor (the 
designated agency or ``designee'' in the State) completed, in 
conjunction with OSHA, a review of the compliance staffing benchmarks 
approved for North Carolina in 1986. In accord with the formula and 
general principles established by the joint Federal/State task group 
for the revision of the 1980 benchmarks, North Carolina reassessed the 
staffing necessary for a ``fully effective'' occupational safety and 
health program in the State. This reassessment resulted in a proposal, 
contained in supporting documents, of revised staffing benchmarks of 64 
safety and 50 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, by 
industry and size group, utilizing the 1989 Dun and Bradstreet listing 
of employers for North Carolina and Federal data on North Carolina's 
lost workday case rates for 1988) 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). The 
State has historically spent an average of 12.4 hours on such 
inspections, and each State safety inspector is able to devote 1,440 
hours annually to actual inspection activity based on State personnel 
practices. A total of 4,870 establishments have been added to the 
initial general schedule safety inspection universe of 3,216 
establishments based upon the State's analysis of past injury and 
inspection experience to identify those additional 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 (e.g., construction) 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 North Carolina.
    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 1984 County Business Patterns and 
the 1987 Dun and Bradstreet listings for North Carolina) in the 150 top 
high hazard Standard Industrial Classifications (SICs) in the State 
having the highest likelihood of exposure of 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 31.85 hours on such 
inspections, and each health compliance officer is able to devote 1,504 
hours annually to actual inspection activity, based upon State 
personnel practices. A total of 2,955 establishments have been added to 
the initial general schedule health inspection universe of 2,028 
establishments based upon 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 North Carolina.
    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 for compliance 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 
receive final approval under section 18(e) of the Act. The proposed 
revised benchmarks of 64 safety and 50 health compliance officers meet 
North Carolina's Fiscal Year 1995 allocated compliance positions of 64 
safety and 51 health officers. (Of those allocated positions, 30 safety 
and 40 health inspectors are completely funded by the State; the 
remainder are funded on a 50/50 basis with State and Federal funds.) 
OSHA does not anticipate any significant increase in its appropriations 
whereby it would be able to provide 50 percent Federal funding for 
North Carolina to meet its proposed revised staffing benchmarks.) 
Approval of the revised benchmarks would be accompanied by an amendment 
to 29 CFR part 1952, Subpart I, which generally describes the North 
Carolina plan and sets forth the State's revised safety and health 
benchmark levels.

Documents of Record

    A comprehensive document containing the proposed revision to North 
Carolina'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-015A, U.S. Department of Labor, Room N-
2625, 200 Constitution Avenue NE., Washington, D.C. 20210.
Regional Administrator--Region IV, U.S. Department of Labor, OSHA, 
1371 Peachtree Street NE., Atlanta, Georgia 30367.
North Carolina Department of Labor, 319 Chapanoke Road, Raleigh, 
North Carolina 27603.

    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. [[Page 12490]] Marshall, the 1978 implementing 
Court Order, the 1980 Report to the Court, and a report describing the 
1983-1984 benchmark revision process. Docket Number T-018 is available 
for public inspection and copying at the Docket Office of the U.S. 
Department of Labor, Room N-2625.

Public Participation

    OSHA is soliciting public participation in its consideration of the 
approval of the revised North Carolina 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 North Carolina in accordance with the Court Order in AFL-
CIO v. Marshall. Comments must be received on or before April 11, 1995, 
and be submitted in quadruplicate to the Docket Office, Docket No. T-
015A, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, 
N.W., Washington, D.C. 20210. Written submissions must be directed to 
the specific benchmarks proposed for North Carolina 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. 1-90 (55 FR 9033))

    Signed at Washington, DC, this 28th day of February 1995.
Joseph A. Dear,
Assistant Secretary of Labor.
[FR Doc. 95-5503 Filed 3-6-95; 8:45 am]
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