[Federal Register Volume 61, Number 108 (Tuesday, June 4, 1996)]
[Rules and Regulations]
[Pages 28053-28055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13913]



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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

[Docket No. T-015A]


North Carolina State Plan: Approval of Revised Compliance 
Staffing Benchmarks

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

ACTION: Approval of revised State compliance staffing benchmarks.

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SUMMARY: This document amends Subpart I of 29 CFR 1952 to reflect the 
Assistant Secretary's decision to approve revised compliance staffing 
benchmarks of 64 safety inspectors and 50 industrial hygienists for the 
North Carolina State plan.

EFFECTIVE DATE: June 4, 1996.

FOR FURTHER INFORMATION CONTACT: Anne Cyr, Acting Director, Office of 
Information and Consumer Affairs, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room N-3637, 200 Constitution 
Avenue, N.W., 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

[[Page 28054]]

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 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 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 North Carolina 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, North Carolina 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 North Carolina to allocate 83 safety 
compliance officers and 119 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, North Carolina 
reassessed the compliance staffing necessary for a ``fully effective'' 
occupational safety and health program in the State. In September 1984, 
North Carolina 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. This 
reassessment resulted in a proposal to OSHA of revised compliance 
staffing benchmarks of 64 safety and 50 health compliance officers for 
the State of North Carolina.
    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. 
Consideration of North Carolina's benchmarks revision was suspended 
during this time. Significant legislative and budgetary changes were 
made to the North Carolina State program and, for Fiscal Year 1995, the 
State authorized compliance staffing of 64 safety and 51 health 
inspectors. In late 1994, the North Carolina Department of Labor 
requested that the Assistant Secretary resume consideration of State's 
proposed revision of its benchmarks.

History of the Present Proceedings

    On March 7, 1995, the Occupational Safety and Health Administration 
published notice in the Federal Register of its proposal to approve 
revised compliance staffing benchmarks for North Carolina (60 FR 
12488). A detailed description of the methodology and State-specific 
information used to develop the revised compliance staffing levels for 
North Carolina 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 North Carolina's proposed revised 
benchmarks (Docket No. T-015A). 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 assist and encourage public participation in the benchmark 
revision process, a copy of North Carolina's complete record was 
maintained in the OSHA Docket Office in Washington, DC. Copies of North 
Carolina's record were also maintained in the OSHA Region IV Office in 
Atlanta, Georgia, and in the Office of the North Carolina Department of 
Labor, in Raleigh, North Carolina.
    The March 7 proposal invited interested parties to submit, by April 
11, 1995, written comments and views regarding whether North Carolina's 
proposed revised compliance staffing benchmark levels should be 
approved. Two comments were received regarding North Carolina's 
proposed benchmarks.

Summary and Evaluation of Comments Received

    In response to the March 7 Federal Register notice for North 
Carolina, OSHA received one comment from Kae Livsey, Governmental 
Affairs Manager of the American Association of Occupational Health 
Nurses, Inc. (Exhibit 4-1), and one comment from Ruth Anne Smith, 
President, and Susan A. Randolph, Chair for Governmental Affairs, of 
the North Carolina Association of Occupational Health Nurses (Exhibit 
4-2). Charles N. Jeffress, Deputy Commissioner of the North Carolina 
Department of Labor, responded to the public comments (Exhibit 4-3). 
Both comments recommended that the North Carolina program include 
occupational health nursing positions in determining revisions to the 
State's benchmark levels for compliance staffing and utilizing 
occupational health nurses to fill compliance and consultation 
positions.
    In his response, Deputy Commissioner Jeffress agreed with the two 
comments that occupational health nurses are beneficial to a ``full 
service'' occupational safety and health program,'' and noted that the 
North Carolina Department of Labor has a long history of employing 
occupational health nurses to provide training and expert advice in 
compliance investigations. Mr. Jeffress also

[[Page 28055]]

explained that North Carolina program's proposed revised compliance 
staffing benchmarks apply specifically to personnel for the enforcement 
of occupational safety and health standards and that although an 
individual with an educational background in occupational health 
nursing would be eligible to apply for consideration for these 
positions, it would be inappropriate to reserve staffing positions for 
individuals with a particular occupational health degree.

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 North Carolina 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 64 safety and 50 health compliance 
officers for North Carolina are approved.

Effect of Decision

    The approval of the revised staffing levels for North Carolina, 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 North Carolina. 
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 I to reflect the approval of 
North Carolina's revised compliance staffing benchmarks, as well as to 
reflect minor editorial modifications to the structure of the Subpart.
    Section 1952.393, Compliance staffing benchmarks, has been revised 
to reflect the approval of the revised benchmarks for North Carolina. 
In addition, the addresses of locations where the North Carolina plan 
may be inspected have been updated and are found at Sec. 1952.156.

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 North Carolina 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 10th day of May 1996.
Joseph A. Dear,
Assistant Secretary of Labor.

PART 1952--[AMENDED]

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

Subpart I--North Carolina

    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. 9-83 (43 FR 35736).

    2. Section 1952.153 is revised to read as follows:


Sec. 1952.153  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 September 1984, North Carolina, in 
conjunction with OSHA, completed a reassessment of the levels initially 
established in 1980 and proposed revised benchmarks of 50 safety and 27 
health compliance officers. After opportunity for public comment and 
service on the AFL-CIO, the Assistant Secretary approved these revised 
staffing requirements on January 17, 1986. In June 1990, North Carolina 
reconsidered the information utilized in the initial revision of its 
1980 benchmarks and determined that changes in local conditions and 
improved inspection data warranted further revision of its benchmarks 
to 64 safety inspectors and 50 industrial hygienists. After opportunity 
for public comment and service on the AFL-CIO, the Assistant Secretary 
approved these revised staffing requirements on June 4, 1996.
    3. Section 1952.156 is revised to read as follows:


Sec. 1952.156  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, Third Street and 
Constitution Avenue, NW., Room N3700, Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health 
Administration, U.S. Department of Labor, 1375 Peachtree Street, 
NE., Suite 587, Atlanta, Georgia 30367; and
Office of the Commissioner, North Carolina Department of Labor, 319 
Chapanoke Road, Raleigh, North Carolina 27603.

[FR Doc. 96-13913 Filed 6-3-96; 8:45 am]
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