[Federal Register Volume 60, Number 164 (Thursday, August 24, 1995)]
[Rules and Regulations]
[Pages 43969-43972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20863]



=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952


Approved State Plans for Enforcement of State Standards; Approval 
of Supplements to the Nevada State Plan

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Approval of supplements to the Nevada State Plan.

-----------------------------------------------------------------------

[[Page 43970]]


SUMMARY: This document gives notice of Federal approval of supplements 
to the Nevada State occupational safety and health plan. These 
supplements are: Nevada's procedure for issuance of notices of 
violation in lieu of citations in certain situations; amendments to the 
Nevada Occupational Safety and Health Act enacted in 1981, 1989 and 
1993; the Nevada Field Operations Manual; the Nevada Training and 
Consultation Section Policies and Procedures Manual; the Nevada 
Occupational Safety and Health Administration Technical Manual; and a 
regulation concerning pre-construction conferences.

EFFECTIVE DATE: August 24, 1995.

FOR FURTHER INFORMATION CONTACT:
Director, Office of Information and Consumer Affairs, Occupational 
Safety and Health Administration, Room N3647, 200 Constitution Avenue, 
N.W., Washington, D.C. 20210. Telephone: (202) 523-8148.

SUPPLEMENTARY INFORMATION: 

Background

    The Nevada 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 4, 1974 (39 FR 1008). Part 1953 of this chapter 
provides procedures for the review and approval of State change 
supplements by the Assistant Secretary of Labor for Occupational Safety 
and Health (hereinafter referred to as the Assistant Secretary).

Description of Supplements

A. Notices of Violation

    On October 29, 1980, the State submitted a procedure for issuing 
notices of violation in lieu of citations for certain other than 
serious violations. In order to expedite inspections and concentrate 
resources on serious violations, compliance officers may issue notices 
of violation for other than serious violations for which monetary 
penalties would not be proposed. If the employer agrees to abate the 
violation and not to file a contest, the compliance officer will issue 
the notice on-site. For serious, willful, repeat and/or failure to 
abate violations, citations continue to be issued in accordance with 
established procedures.
    Review of the supplement raised several issues which needed to be 
resolved before approval of the notice of violation procedure. Because 
the Nevada Occupational Safety and Health Act required that citations 
be issued where violations were identified, statutory authority for 
issuance of notices was necessary. In 1981, Sec. 618.465(1)(b) was 
added to the State's law, allowing for a notice in lieu of a citation 
for violations which are not serious and which the employer agrees to 
correct within a reasonable time.
    There was also concern that a notice be able to serve as the basis 
for a future willful, repeat, or failure to abate citation, and that 
documentation of the violations for which the notice was issued be 
adequate to serve as the basis for such a citation. The State amended 
its enforcement regulations to provide that for future proceedings 
involving a repeat, willful, or failure to abate violation, the notice 
of violation shall have the same effect as if a citation has originally 
been issued and become a final order (section 618.6458(9)) and that 
notices of violations contain all the provisions required for citations 
(section 618.6458(6)). In addition, the State was asked to ensure that 
if it is learned following the inspection that a violation for which a 
notice of violation has been issued is actually a repeat violation, a 
citation for a repeat violation would be issued. Section 618.6458 of 
the State's enforcement regulations now provides that a citation may be 
issued even if a notice has already been issued, and the State's Field 
Operations Manual directs the compliance officer to check for previous 
violations upon returning to the office. Finally, the right of 
employees to contest the reasonableness of the abatement period needed 
to be established. The State's enforcement regulations 
(Sec. 618.6458(6)) now provide that the notice shall inform employees 
of their right to contest the abatement period. Based on these changes 
made by the State, the notice of violation procedure is now deemed 
approvable.

B. Amendments to Nevada Occupational Safety and Health Act

    In 1981, 1989 and 1993, the State enacted amendments to its 
Occupational Safety and Health Act. The 1981 amendments, submitted as a 
plan supplement on July 10, 1981, made the following changes:
    (1) As discussed above, Sec. 618.465(1)(b) was added to allow the 
State to issue a notice in lieu of a citation for violations which are 
not serious and which the employer agrees to correct within a 
reasonable time.
    (2) Section 618.415 was revised to delete the legislative authority 
for temporary variances for other than new standards. As in the Federal 
program, temporary variances may now only be granted from new 
standards.
    (3) Section 618.585(2) was added to allow the Nevada Occupational 
Safety and Health Appeals Board to employ legal counsel.
    (4) Section 618.625(3) was amended to streamline penalty collection 
procedures by allowing collection actions to be brought in any court of 
competent jurisdiction, rather than only the district court.
    (5) Section 618.367 was amended to ensure confidentiality to 
employees making statements to the Division of Occupational Safety and 
Health, as well as those filing complaints. This section was 
extensively revised in 1989, as discussed below.
    The 1989 amendments, submitted as a plan supplement on October 17, 
1989, made the following changes:
    (1) Section 618.336 requires the maintenance of specific logs 
relating to complaints received concerning occupational safety and 
health violations and their outcomes.
    (2) Section 618.341 provides public access to records on 
complaints, except for confidential information.
    (3) Section 618.341(3) provides confidentiality for those employees 
who file complaints or make statements, even when confidentiality is 
not specifically requested, as well as for files relating to open 
cases.
    (4) Section 618.370 was amended to clarify that representatives of 
employees and former employees are entitled to access to any records in 
the possession of their employers or former employers which indicate 
their exposure to toxic materials or harmful physical agents. 
``Representative of an employee or former employee'' is defined as an 
authorized representative of the employee bargaining unit, an attorney, 
a spouse, parent or child, or a person designated by a court.
    (5) Section 618.425 was amended to add health care providers, and 
government employees whose primary duty is to ensure public safety, 
such as building inspectors, to those who may file complaints of 
hazardous working conditions.
    (6) Section 618.425 was also amended to allow for oral as well as 
written complaints, and to require the division to respond to valid 
complaints of serious violations immediately and of other violations 
within 14 days.
    (7) Section 618.435 provides that an employee who accompanies a 
compliance officer on the inspection is entitled to be paid for the 
time spent, but that only one employee may accompany the compliance 
officer during the inspection.
    (8) Section 618.545 was amended to allow the Administrator of the 
Nevada Division of Occupational Safety and 

[[Page 43971]]
Health to issue an emergency order to restrain an imminent danger 
situation.
    (9) All maximum monetary penalties in sections 618.645 through 
618.705 were doubled. At the time of their enactment, these statutory 
penalty levels were higher than those contained in the Federal Act. (In 
1991, statutory maximum penalties for violations of the State Act were 
raised again. That increase was approved by OSHA on March 15, 1994 (59 
FR 14556).)
    The 1993 amendments, submitted on October 27, 1993, reflect a 
reorganization of the Nevada State government. The previous Division of 
Enforcement for Industrial Safety and Health and Division of Preventive 
Safety are now sections in the Division of Industrial Relations of the 
Department of Business and Industry.

C. Field Operations Manual

    On December 14, 1989, Nevada submitted its Field Operations Manual 
in response to a revised Federal Field Operations Manual (CPL 2.45B). 
The State has submitted revisions to this manual on May 31, 1991, July 
5, 1991, December 15, 1992 and June 13, 1994, in response to Changes 1 
through 4 of the Federal manual. The Nevada Field Operations Manual is 
comparable to the Federal manual and has been found to be at least as 
effective as the Federal manual.

D. Consultation Manual

    On August 12, 1987, the State submitted its Training and 
Consultation Section Policies and Procedures Manual. This manual 
includes previously approved sections of the State's Field Operations 
Manual on the conduct of consultation visits to employers. In addition, 
it incorporates chapters on safety and health program assistance and 
training by consultants which are nearly identical (with organization 
changes and adapted to the State's program structure) to Part I of the 
Federal Consultation Policies and Procedures Manual.

E. Industrial Hygiene Technical Manual

    On March 30, 1990, the State submitted notice of its adoption of 
the Federal OSHA Technical Manual. The State has incorporated a cover 
sheet indicating that the Federal manual has been adopted for State 
use, how references to the Federal program in the Federal manual 
correspond to the State administrative structure, and how it will be 
applied. In addition, on March 6, 1991, June 22, 1993 and December 16, 
1994, the State submitted notice of its adoption of Changes 1, 2 and 3 
to the Technical Manual. These changes also incorporate updates to the 
Federal manual, with appropriate changes to apply to the State's 
organizational structure.

F. Pre-construction Conferences

    On August 20, 1993, Nevada submitted a temporary regulation 
requiring pre-construction conferences with the Division of Industrial 
Relations for certain types of construction projects including high 
rise, structural steel erection, precast concrete erections, cast in 
place structures above ground level, and tilt-up wall construction. At 
the conference, the contractor will identify those safety measures 
which will be utilized to protect employees working on the project. On 
September 8, 1994, Nevada submitted permanent regulations covering pre-
construction conferences.

G. Revised Plan

    On October 2, 1992, Nevada submitted a reorganized State plan, 
incorporating the plan supplements approved herein as well as 
previously approved plan changes and other supplements still under 
review.
H. Other Submissions

    In addition, on October 17, 1989, the State submitted legislation 
enacted in 1989 and implementing regulations concerning the licensing 
and registration of asbestos removal projects. The new procedures 
require any contractor engaging in asbestos removal work to be licensed 
by the Division of Occupational Safety and Health and to meet certain 
training and work practice requirements. The licensing program is 
administered separately from the Division's occupational safety and 
health enforcement program. While these provisions are not part of the 
State plan, and thus activities pursuant to them are not eligible for 
funding under section 23(g) of the Act, OSHA will monitor these 
activities to ensure that they do not detract from the State's ability 
to meet its commitments under the plan.

Location of Supplements for Inspection and Copying

    A copy of the plan and the supplements may be inspected and copied 
during normal business hours at the following locations: Office of the 
Regional Administrator, Occupational Safety and Health Administration, 
Room 415, 71 Stevenson Street, San Francisco, California 94105; 
Director, Division of Occupational Safety and Health, Nevada Division 
of Industrial Relations, 1370 South Curry Street, Carson City, Nevada 
89710; and the Office of the Director of Federal-State Operations, Room 
N3700, 200 Constitution Avenue, N.W., Washington, D.C. 20210.

Public Participation

    A notice was published on April 3, 1981 (46 FR 20229), announcing 
the submission of the Nevada program for issuance of notices of 
violation. Interested persons were afforded 30 days to submit written 
comments or request a hearing concerning the supplement. One comment 
favoring the program was received.
    With regard to the other supplements, under Sec. 1953.2(c) of this 
chapter, the Assistant Secretary may prescribe alternative procedures 
to expedite the review process or for any other good cause which may be 
consistent with applicable law. The Assistant Secretary finds that the 
legislative amendments, Field Operations Manual, Consultation Manual, 
Industrial Hygiene Technical Manual and regulations concerning pre-
construction conferences are consistent with Federal requirements and 
with commitments contained in the plan and previously made available 
for public comment. Good cause is therefore found for approval of these 
supplements, and further public participation would be unnecessary.

Decision

    After careful consideration and extensive review by the Regional 
and National Offices, the Nevada plan supplements described above are 
found to be in substantial conformance with comparable Federal 
provisions and are hereby approved under Part 1953 of this chapter. The 
decision incorporates the requirements and implementing regulations 
applicable to State plans generally.

List of Subjects in 29 CFR Part 1952

    Intergovernmental relations, Law enforcement, Occupational safety 
and health.

    Signed at Washington, D.C., this 11th day of August, 1995.
Joseph A. Dear,
Assistant Secretary.

    Accordingly, 29 CFR Part 1952 is hereby amended as follows:

PART 1952--[AMENDED]

    The authority citation for Part 1952 continues to read:

    Authority: Secs. 8, 18 Pub. L. 91-596, 84 Stat. 1608 
Occupational Safety and Health Act of 1970 (29 U.S.C. 657, 667); 
Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 
25059), or 9-83 (48 FR 35736), as applicable.


[[Page 43972]]

    2. Paragraphs (b) through (h) are added to Sec. 1952.297 of Subpart 
W to read as follows:


Sec. 1952.297  Changes to approved plans.

* * * * *
    (b) Notices of violation. The State submitted a procedure for 
issuing notices of violation in lieu of citations for certain other 
than serious violations which the employer agrees to abate. The 
procedure as modified was approved by the Assistant Secretary on August 
24, 1995.
    (c) Legislation. The State submitted amendments to its Occupational 
Safety and Health Act, enacted in 1981, which: provide for notices of 
violation in lieu of citations for certain other than serious 
violations; delete the authority for temporary variances for other than 
new standards; allow the Nevada Occupational Safety and Health Appeals 
Board to employ legal counsel; allow penalty collection actions to be 
brought in any court of competent jurisdiction; and ensure 
confidentiality to employees making statements to the Division of 
Occupational Safety and Health. Further amendments, enacted in 1989: 
require the maintenance of specific logs relating to complaints; 
provide public access to records on complaints, except for confidential 
information; provide confidentiality for those employees who file 
complaints or make statements, as well as for files relating to open 
cases; allow representatives of employees and former employees access 
to any records which indicate their exposure to toxic materials or 
harmful physical agents; define representative of employees or former 
employees; allow health care providers and government employees in the 
field of public safety, to file complaints; allow for oral complaints; 
require the division to respond to valid complaints of serious 
violations immediately and of other violations within 14 days; provide 
that an employee who accompanies a compliance officer on the inspection 
is entitled to be paid for the time spent, but that only one employee 
may accompany the compliance officer during the inspection; allow the 
Administrator of the Division of Occupational Safety and Health to 
issue an emergency order to restrain an imminent danger situation; and, 
double maximum authorized penalty levels. Amendments enacted in 1993 
reflect the new State organizational structural by designating the 
previous Divisions as sections in the Division of Industrial Relations 
of the Department of Business and Industry. The Assistant Secretary 
approved these amendments on August 24, 1995.
    (d) Field Operations Manual. The State's Field Operations Manual, 
comparable to the Federal Field Operations Manual, through Change 4, 
was approved by the Assistant Secretary on August 24, 1995.
    (e) Consultation Manual. The State's Training and Consultation 
Section Policies and Procedures Manual was approved by the Assistant 
Secretary on August 24, 1995.
    (f) Occupational Safety and Health Administration Technical Manual. 
The State's adoption of the Federal OSHA Technical Manual, through 
Change 3, with a cover sheet adapting Federal references to the State's 
administrative structure, was approved by the Assistant Secretary on 
August 24, 1995.
    (g) Pre-construction conferences. A State regulations requiring 
pre-construction conferences with the Division of Industrial Relations 
for certain types of construction projects was approved by the 
Assistant Secretary on August 24, 1995.
    (h) Reorganized Plan. The reorganization of the Nevada plan was 
approved by the Assistant Secretary on August 24, 1995.

[FR Doc. 95-20863 Filed 8-23-95; 8:45 am]
BILLING CODE 4510-26-M