[Federal Register Volume 60, Number 44 (Tuesday, March 7, 1995)]
[Rules and Regulations]
[Pages 12416-12417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5504]



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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952


North Carolina State Plan; Suspension of Limited Concurrent 
Federal Enforcement

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

ACTION: Final rule; notice of suspension of concurrent Federal 
enforcement.

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SUMMARY: This document announces OSHA's suspension of its exercise of 
concurrent Federal enforcement authority in North Carolina. Federal 
enforcement authority will be exercised only with regard to those 
issues not covered by the State plan and in specific areas defined in 
this document under ``Level of Federal Enforcement.''

EFFECTIVE DATE: March 7, 1995.

FOR FURTHER INFORMATION CONTACT:
Richard Liblong, Director, Office of Information and Consumer Affairs, 
Occupational Safety and Health Administration, U.S. Department of 
Labor, room N3647, 200 Constitution Avenue NW., Washington, DC 20210, 
(202) 219-8148.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 18 of the Occupational Safety and Health Act of 1970, 29 
U.S.C. 667, provides that States which wish to assume responsibility 
for developing and enforcing their own occupational safety and health 
standards, may do so by submitting, and obtaining Federal approval of, 
a State plan. State plan approval occurs in stages which include 
initial approval under section 18(b) of the Act and, ultimately, final 
approval under section 18(e). In the interim, between initial approval 
and final approval, there is a period of concurrent Federal/State 
jurisdiction within a State operating an approved plan. See 29 CFR 
1954.3 for guidelines and procedures.
    The North Carolina Occupational Safety and Health Plan was approved 
under section 18(c) of the Occupational Safety and Health Act of 1970 
(29 U.S.C. 667(c)) (hereinafter referred to as the Act) and part 1902 
of this chapter on January 26, 1973 (38 FR 3041), and certified by OSHA 
as having completed all of its developmental steps on October 5, 1976 
(41 FR 43896). On February 20, 1975, OSHA and the State of North 
Carolina entered into an Operational Status Agreement which suspended 
the exercise of Federal concurrent enforcement authority in all except 
specifically identified areas. (See 40 FR 16843).
    On September 3, 1991, a tragic fire occurred at the Imperial Food 
Products chicken processing plant in Hamlet, North Carolina, which 
resulted in the deaths of 25 workers. In response to that event OSHA 
understood a comprehensive reevaluation of the performance of the North 
Carolina State Plan and a special evaluation of all other State Plans. 
On October 24, 1991 (56 FR 55192) OSHA reasserted concurrent Federal 
enforcement jurisdiction in North Carolina with respect to all 
currently pending and new complaints of discrimination filed either 
with OSHA or the State; all complaints of unsafe or unhealthful working 
conditions brought to OSHA's attention on or after October 24, 1991 by 
employees or referred by others; and referrals from the North Carolina 
Governor's 800 ``Safety Line''. This action was responsive to the 
State's request for assistance. Upon further request, on March 31, 
1992, (57 FR 10820) OSHA extended its jurisdiction to include all as 
yet uninvestigated workplace complaints filed with the State as of 
March 20, 1992.
    Congressional oversight hearings were held on the Hamlet fire and 
the AFL-CIO, on September 11, 1991, petitioned the Assistant Secretary 
to withdraw approval of the North Carolina State Plan. (See September 
30, 1991, 56 FR 49444, Request for Public Comment and January 16, 1992, 
57 FR 1889, extension of the comment period and announcement of the 
availability of a Special Evaluation report on North Carolina.) On 
January 7, 1992, OSHA issued a Special Evaluation report on North 
Carolina finding significant deficiencies and giving the State 90 days 
to take corrective action. On April 23, 1992, OSHA determined that the 
State's response to the Special Evaluation findings was insufficient 
and gave North Carolina 45 days to show cause why plan withdrawal 
action should not be initiated. Fully satisfactory assurances the 
necessary corrective action would be undertaken were received in June 
1992.
    Since that date, North Carolina has made substantive and 
significant modifications to its program. Major modifications were made 
to the State's occupational safety and health program enabling 
legislation; State funding and staffing were increased. The State now 
has the inspection resources necessary to provide effective worker 
protection in the State and has addressed all of the deficiencies 
identified as a result of OSHA's 1991 Special Evaluation Report. The 
State increased its allocated enforcement staff to 115 (64 safety and 
51 health) and trained its new compliance officers in accord with the 
schedule outlined in the State's June 1992 corrective action 
commitments. (On-board compliance staffing totals 104--61 safety and 43 
health as of February 1, 1995.) North Carolina resumed responsibility 
for all discrimination complaints effective July 1, 1992, as a result 
of enactment of legislation creating the Workplace Retaliatory 
Discrimination (WORD) Division, selection and training of dedicated 
staff, and revision of its discrimination manual to be comparable 
[[Page 12417]] to OSHA's. The State has no appreciable backlog of 
workplace complaints and is conducting programmed inspection. These and 
others actions have also resolved all issues raised in the AFL-CIO's 
petition for withdrawal of approval of the North Carolina State Plan.
    OSHA has issued three evaluation reports on North Carolina's 
performance since the Special Evaluation. All have documented 
continuing improvement and indicate that the program is now operating 
in a more than acceptable manner with an outstanding commitment to 
necessary enforcement as well as creative outreach and other voluntary 
compliance activities.
    As a result of these actions, OSHA was prepared to suspend its 
exercise of concurrent Federal jurisdiction in North Carolina by mid-
1994. However, two initiatives that the State had undertaken were 
brought to OSHA's attention as potential problems--the conditions 
attendant to the establishment of a joint Ergonomics Center with North 
Carolina State University; and an amendment to State law establishing a 
two-step contest procedure as a means of expediting review of contested 
cases and achieving more timely abatement of hazards. Both of these 
issues have now been resolved. The ergonomics program has been revised 
to eliminate any possibility or perception that inspection or citation 
exemption could result from employer participation in the Ergonomics 
Center program. The informal conference procedures have been revised 
through an internal operating procedure and a proposed regulation to 
specify that any informal conference resulting from the contest process 
must be held within 20 days.

B. Decision

    Based on the foregoing, OSHA has determined that the exercise of 
concurrent Federal enforcement jurisdiction is no longer warranted, and 
it is hereby suspended. Federal enforcement authority will be exercised 
only with regard to those issues not covered by the State and in 
specific areas defined in the following modification to 29 CFR 1952.155 
``Level of Federal Enforcement.''
    OSHA has similarly determined that no further action is necessary 
or appropriate with regard to the AFL-CIO petition for North Carolina 
plan withdrawal. This does not preclude the resubmission of a petition 
at any time on substantive issues of State Plan structure or 
performance.

List of Subjects in 29 CFR Part 1952

    Intergovernmental relations, Law enforcement, Occupational safety 
and health.
    Accordingly, 29 CFR 1952.155 is amended as set forth below.

    Signed in Washington, DC, this 28th day of February 1995.
Joseph A. Dear,
Assistant Secretary.

PART 1952--[AMENDED]

    1. The authority citation for 29 CFR part 1952 continues to read as 
follows:

    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 1952.155 of part 1952, subpart I--North Carolina is 
revised to read as follows:

Subpart I--North Carolina


Sec. 1952.155  Level of Federal enforcement.

    Pursuant to Sec. 1902.20(b)(1)(iii), discretionary Federal 
enforcement authority under Section 18(e) of the Act (29 U.S.C. 667(e)) 
will not be initiated with regard to Federal occupational safety and 
health standards in issues covered under 29 CFR part 1910, 29 CFR part 
1926, and 29 CFR part 1928. The U.S. Department of Labor will continue 
to exercise authority, among other things, with regard to: complaints 
filed with the U.S. Department of Labor alleging discrimination under 
Section 11(c) of the Act (29 U.S.C. 660(c)); enforcement with respect 
to private sector maritime activities, including enforcement of all 
provisions of the Act, rules or orders and all Federal standards, 
current or future, applicable to private sector maritime employment 
including 29 CFR part 1915, shipyard employment (including boat 
building establishments in SIC 3732 located on the navigable waters and 
all establishments in SIC 3731); 29 CFR part 1917, marine terminals; 29 
CFR part 1918, longshoring (including all private sector and Federal 
sector marine cargo handling establishments or operations in SIC 4491 
located within the State of North Carolina), 29 CFR part 1919, gear 
certification; all marinas in SIC 4493 located on the navigable waters; 
enforcement of marine construction activities on the navigable waters 
which are not directly accessible by land; and, enforcement of general 
industry and construction standards (29 CFR parts 1910 and 1926) 
appropriate to hazards found in these employments, which issues have 
been specifically excluded from coverage in the North Carolina plan; 
the enforcement of occupational safety and health standards on Indian 
reservations; enforcement relating to any contractors or subcontractors 
on any Federal establishment where the land has been ceded to the 
Federal Government; enforcement on military bases; enforcement of new 
Federal standards until the State adopts a comparable standard; 
situations where the State is refused entry and is unable to obtain a 
warrant or enforce the right of entry; enforcement of unique and 
complex standards as determined by the Assistant Secretary; enforcement 
in situations where the State is temporarily unable to exercise its 
enforcement authority fully or effectively; completion of enforcement 
actions initiated prior to the effective date of this notice; and 
investigations for the purpose of the evaluation of the North Carolina 
plan under sections 18 (e) and (f) of the Act (29 U.S.C. 667 (e) and 
(f)). The Regional Administrator for Occupational Safety and Health 
will make a prompt recommendation for the resumption of the exercise of 
Federal enforcement authority under section 18(e) of the Act (29 U.S.C. 
667(e)) whenever, and to the degree, necessary to assure occupational 
safety and health protection to employees in North Carolina.

[FR Doc. 95-5504 Filed 3-6-95; 8:45 am]
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