[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Proposed Rules]
[Pages 48446-48452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23459]


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DEPARTMENT OF LABOR
29 CFR Part 1952

[Docket No. T-031]


North Carolina State Plan; Eligibility for Final Approval 
Determination; Proposal To Grant an Affirmative Final Approval 
Determination; Comment Period and Opportunity To Request Public Hearing

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

ACTION: Proposed final State plan approval; request for written 
comments; notice of opportunity to request informal public hearing.

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SUMMARY: This document gives notice of the eligibility of the North 
Carolina State occupational safety and health plan, as administered by 
the North Carolina Department of Labor, for determination under section 
18(e) of the Occupational Safety and Health Act of 1970 as to whether 
final approval of the State plan should be granted.
    If an affirmative determination under section 18(e) is made, 
Federal standards and enforcement authority will no longer apply to 
issues covered by the North Carolina plan. This notice announces that 
OSHA is soliciting written public comment regarding whether or not 
final State plan approval should be granted, and offers an opportunity 
to interested persons to request an informal public hearing on the 
question of final State plan approval.

DATES: Written comments or requests for a hearing should must be 
received by October 15, 1996.

ADDRESSES: Written comments or requests for a hearing should be 
submitted, in quadruplicate, to the Docket Officer, Docket No. T-031, 
U.S. Department of Labor, Room N2625 200 Constitution Avenue NW, 
Washington. DC 20210, (202) 219-7894.

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 N3637, 200 Constitution 
Avenue NW, Washington, DC 20210, (202) 219-8148.



SUPPLEMENTARY INFORMATION:

Background

    Section 18 of the Occupational Safety and Health Act of 1970, 29 
U.S.C. 651, et seq , (the ``Act'') provides that States which desire to 
assume responsibility for the development and enforcement of 
occupational safety and health standards may do so by submitting, and 
obtaining Federal approval of a State plan. Procedures for State Plan 
submission and approval are set forth in regulations at 29 CFR Part 
1902. If the Assistant Secretary, applying the criteria set forth in 
section 18(c) of the Act and 29 CFR 1902.3 and .4, finds that the plan 
provides or will provide for State standards and enforcement which are 
at least as effective as Federal standards and enforcement, ``initial 
approval'' is granted. A State may commence operations under its plan 
after this determination is made, but the Assistant Secretary retains 
discretionary Federal enforcement authority during the initial approval 
period as provided by section 18(e) of the Act. A State plan may 
receive initial approval even though, upon submission, it does not 
fully meet the criteria set forth in Secs. 1902.3 and 1902.4 if it 
includes satisfactory assurances by the State that it will take the 
necessary ``developmental steps'' to meet the criteria within a three-
year period (29 CFR 1902.2(b)). The Assistant Secretary publishes a 
``certification of completion of developmental steps'' when all of a 
State's developmental commitments have been satisfactorily met (29 CFR 
1902.34).
    When a State plan that has been granted initial approval is 
developed sufficiently to warrant a suspension of concurrent Federal 
enforcement activity, it becomes eligible to enter into an 
``operational status agreement'' with OSHA (29 CFR 1954.3(f)). A State 
must have enacted its enabling legislation, promulgated State 
standards, achieved an adequate level of qualified personnel, and 
established a system for review of contested enforcement actions. Under 
these voluntary agreements, concurrent Federal enforcement will not be 
initiated with regard to Federal occupational safety and health 
standards in those issues covered by the State plan, where the State 
program is providing an acceptable level of protection.
    Following the initial approval of a complete plan, or the 
certification of a developmental plan, the Assistant Secretary must 
monitor and evaluate actual operations under the plan for a period of 
at least one year to determine, on the basis of actual operations under 
the plan, whether the criteria set forth in section 18(c) of the Act 
and 29 CFR 1902.37 are being applied.
    An affirmative determination under section 18(e) of the Act 
(usually referred to as ``final approval'' of the State plan) results 
in the relinquishment of authority for Federal concurrent enforcement 
jurisdiction in the State with respect to occupational safety and 
health issues covered by the plan (29 U.S.C. 667(e)). Procedures for 
section 18(e) determinations are found at 29 CFR Part 1902, Subpart D. 
In general, in order to be granted final approval, actual performance 
by the State must be ``at least as effective'' overall as the Federal 
OSHA program in all areas covered under the State plan.
    An additional requirement for final approval consideration is that 
a State must meet the compliance staffing levels, or benchmarks, for 
safety inspectors and industrial hygienists established by OSHA for 
that State. This requirement stems from a 1978 Court Order by the U.S. 
District Court for the District of Columbia (AFL-CIO v. Marshall, C.A. 
No. 74-406), pursuant to a U.S. Court of Appeals decision, that 
directed the Assistant Secretary to calculate for each state plan State 
the number of enforcement personnel needed to assure a ``fully 
effective'' enforcement program.

[[Page 48447]]

    The last requirement for final approval consideration is that a 
State must participate in OSHA's Integrated Management Information 
System (IMIS). This is required so that OSHA can obtain the detailed 
program performance data on a State necessary to make an objective 
continuing evaluation of whether the State performance meets the 
statutory and regulatory criteria for final approval.

History of the North Carolina Plan and of Its Compliance Staffing 
Benchmarks

North Carolina Plan

    On November 27,1972, North Carolina submitted an occupational 
safety and health plan in accordance with section 18(b) of the Act and 
29 CFR Part 1902, Subpart C and on December 9, 1972 a notice was 
published in the Federal Register (37 FR 26371) concerning the 
submission of the plan, announcing that initial Federal approval of the 
plan was at issue and offering interested persons 30 days in which to 
submit data, views and arguments in writing concerning the plan.
    Written comments concerning the plan were submitted on behalf of 
the American Federation of Labor and Congress of Industrial 
Organizations (AFL-CIO) and the U.S.S. Agri-Chemicals. No other written 
comments were received, and no request for an informal hearing was 
received.
    On February 1, 1973, the Assistant Secretary published a Federal 
Register notice (38 FR 3041) granting initial approval of the North 
Carolina plan as a developmental plan and adopting Subpart I of Part 
1952 containing the decision and describing the plan.
    The North Carolina Department of Labor is designated as the agency 
having responsibility for administering the plan throughout the State 
under the authority of the North Carolina Occupational Safety and 
Health Act (S.B. 342, Chapter 295). The plan provides for the adoption 
by North Carolina of standards which are ``at least as effective'' as 
Federal occupational safety and health standards. In most cases the 
State standards are identical to the Federal. The plan requires 
employers to furnish employment and place of employment which is free 
from recognized hazards that are causing or are likely to cause death 
or serious physical harm, and to comply with all occupational safety 
and health standards promulgated by the State agency. Employees are 
required to comply with all standards and regulations applicable to 
their conduct.
    The plan contains provisions similar to Federal procedures 
governing emergency temporary standards; imminent danger proceedings; 
coverage under the general duty clause; variances; safeguards to 
protect trade secrets; protection of employees against discrimination 
for exercising their rights under the plan; and employer and employee 
rights to participate in inspection and review proceedings. The notice 
of initial approval noted that the State does not cover private sector 
maritime employment, employment on military bases, or domestic workers.
    Notices of contest of citations and penalties are filed with the 
Commissioner of Labor and are heard by the North Carolina Occupational 
Safety and Health Review Board, an independent administrative review 
board. Decisions of the North Carolina Occupational Safety and Health 
Review Board may be appealed to the North Carolina Superior Court and 
those decisions may be ultimately appealed to the North Carolina State 
Supreme Court.
    The Assistant Secretary's initial approval of the North Carolina 
developmental plan, a general description of the plan, a schedule of 
required developmental steps, and a provision for discretionary 
concurrent Federal enforcement during the period of initial approval 
were codified in the Code of Federal Regulations (29 CFR Part 1952, 
Subpart I (38 FR 3041, February 1, 1973)).
    In accordance with the State's developmental schedule, all major 
structural components of the plan were put in place and documentation 
submitted for OSHA approval on or before March 31, 1976. These 
``developmental steps'' included enactment of the North Carolina 
Occupational Safety and Health Act, promulgation of State occupational 
safety and health standards essentially identical to Federal standards 
and establishment of a public employee program. In completing these 
developmental steps, the State developed and submitted for Federal 
approval all components of its program including, among other things: 
documentation of staff training; a merit staffing system; regulations 
for inspections, citations and proposed penalties; record keeping and 
reporting regulations; standards and variances regulations; compliance 
procedures; and, rules of procedure for the North Carolina Occupational 
Safety and Health Review Board.
    These submissions were carefully reviewed by OSHA; after 
opportunity for public comment and modification of State submissions, 
where appropriate, the major plan elements were approved by the 
Assistant Secretary as meeting the criteria of section 18 of the Act 
and 29 CFR 1902.3 and 1902.4. The North Carolina Subpart of 29 CFR Part 
1952 was amended to reflect each of these approval determinations (see 
29 CFR 1952.152).
    On October 5, 1976, in accordance with procedures at 29 CFR 1902.34 
and 1902.35, the Assistant Secretary certified that North Carolina had 
satisfactorily completed all developmental steps (41 FR 43896). In 
certifying the plan, the Assistant Secretary found the structural 
features of the program--the statutes, standards, regulations, and 
written procedures for administering the North Carolina plan--to be as 
effective as corresponding Federal provisions. Certification does not, 
however, entail findings or conclusions by OSHA concerning adequacy of 
actual plan performance. As has already been noted, OSHA regulations 
provide that certification initiates a period of evaluation and 
monitoring of State activity to determine in accordance with section 
18(e) of the Act whether the statutory or regulatory criteria for State 
plans are being applied in actual operations under the plan and whether 
final approval should be granted.
    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 
undertook 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-

[[Page 48448]]

CIO, on September 11, 1991, petitioned the Assistant Secretary to 
withdraw approval of the North Carolina State Plan. (See September 30, 
1991, Request for Public Comment (56 FR 49444) and January 16, 1992, 
Extension of the Comment Period and Announcement of the Availability of 
a Special Evaluation report on North Carolina (57 FR 1889).) 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 that necessary 
corrective action would be undertaken were received in June 1992.
    North Carolina subsequently made substantive and significant 
improvements 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 dedicated the 
inspection resources to the program necessary to provide effective 
worker protection in the State and 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. 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 to 
OSHA's. These and other actions also resolved all issues raised in the 
AFL-CIO's petition for withdrawal of approval of the North Carolina 
State Plan.
    OSHA evaluation reports on North Carolina's performance subsequent 
to the Special Evaluation, documented continuing improvement and 
indicated that the program was operating in an effective manner with an 
outstanding commitment to necessary enforcement as well as creative 
outreach and other voluntary compliance activities. Based on this 
record, OSHA on March 7, 1995, determined that the exercise of 
concurrent Federal enforcement jurisdiction was no longer warranted and 
suspended Federal enforcement authority except with regard to those 
issues not covered by the State. OSHA similarly determined that no 
further action was necessary or appropriate with regard to the AFL-CIO 
petition for North Carolina plan withdrawal. (See 44 FR 12416.)

North Carolina Benchmarks

    Under the terms of a 1978 Court Order in AFL-CIO v. Marshall, 
compliance staffing levels (benchmarks) necessary for a ``fully 
effective'' enforcement program were required to be established for 
each State operating an approved State plan. In 1980, in response to 
the Court Order, OSHA established benchmarks for all approved State 
plans, including benchmarks of 83 safety and 119 health compliance 
officers for North Carolina. The 1978 Court Order noted that new 
information might warrant an adjustment by OSHA of the fully effective 
benchmarks. In September 1984 North Carolina in conjunction with OSHA, 
completed a reassessment of the levels resulting in proposed revised 
compliance staffing 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 (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 again renegotiate the appropriate number of 
North Carolina 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. These revised benchmarks were 
approved by the Assistant Secretary on June 4, 1996, after opportunity 
for public comment and service on the AFL-CIO (61 FR 28053).

Determination of Eligibility

    This Federal Register notice announces the eligibility of the North 
Carolina plan for final approval detertmination under section 18(e). 
(29 CFR 1902.39(c) requires that this preliminary determination of 
eligibility be made before section 18(e) procedures begin.) The 
determination of eligibility is based upon OSHA's findings that:
    (1) The North Carolina plan has been monitored in actual operation 
for at least one year following certification. The results of OSHA 
monitoring of the plan since the commencement of plan operations are 
contained in written evaluation reports which are now prepared 
biennially and made available to the State and to the public. The 
results of OSHA's most recent post-certification monitoring are set 
forth in a biennial evaluation report covering the period of October 1, 
1993 through September 30, 1995, and in a section 18(e) Evaluation 
Report of the North Carolina Plan, covering the period of October 1, 
1995 through June 30, 1996, which have been made part of the record of 
the present proceedings.
    (2) The plan meets the State's revised benchmarks for enforcement 
staffing. On June 4, 1996, pursuant to the terms of the Court Order and 
the 1980 Report to the Court in AFL-CIO v. Marshall, OSHA approved 
revised fully effective benchmarks of 64 safety and 50 health 
compliance officers for North Carolina based on an assessment of State-
specific characteristics and historical experiences. North Carolina has 
allocated these positions, as evidenced by the FY 1996 Application for 
Federal Assistance in which the State has committed itself to funding 
the State share of salaries for 64 safety and 51 health compliance 
officers. The FY 1996 application has been made part of the record in 
the present proceeding.
    (3) North Carolina participates and has assured its continued 
participation in the Integrated Management lnformation System (IMIS) 
developed by OSHA.

Issues for Determination in the 18(e) Proceedings

    The North Carolina plan is now at issue before the Assistant 
Secretary for determination as to whether the criteria of section 18(c) 
of the Act are being applied in actual operation. 29 CFR 1902.37(a) 
requires the Assistant Secretary, as part of the final approval process 
to determine if the State has applied and implemented all the specific 
criteria and indices of effectiveness of Secs. 1902.3 and 1902.4. The 
Assistant Secretary must make this determination by considering the 
factors set forth in Sec. 1902.37(b). OSHA believes that the results of 
its evaluation of the North Carolina program as described in the most 
recent biennial evaluation report and the section 18(e) Performance 
Evaluation Report, considered in light of these regulatory criteria and 
the criteria in section 18(c) of the Act, indicate that

[[Page 48449]]

the regulatory indices and criteria are being met. The Assistant 
Secretary accordingly has made an initial determination that the North 
Carolina plan is eligible for an affirmative section 18(e) 
determination. This notice initiates proceedings by which OSHA expects 
to elicit public comment on the issue of granting an affirmative 
section 18(e) determination to North Carolina. In order to encourage 
the submission of informed and specific public comment, a summary of 
current evaluation findings with respect to these criteria is set forth 
below.
(a) Standards and Variances
    Section 18(c)(2) of the Act requires State plans to provide for 
occupational safety and health standards which are at least as 
effective as Federal standards. A State is required to adopt, in a 
timely manner, all Federal standards and amendments or to develop and 
promulgate State standards and amendments at least as effective as the 
Federal standards. See Secs. 1902.37(b)(3), 1902.3(c), 1902.4 (a) and 
(b). The North Carolina plan provides for adoption of standards, 
through an expedited process, which are in most cases identical to 
Federal standards. North Carolina's adoption process continues to meet 
the six-month time frame for adoption of OSHA standards requiring State 
action during the section 18(e) evaluation period. [18(e) Evaluation 
Report, p. 3]
    Where a State adopts Federal standards, the State's interpretation 
and application of such standards must ensure consistency with Federal 
interpretation and application. Where a State develops and promulgates 
its own standards, interpretation and application must ensure 
protection at least as effective as comparable Federal standards and 
enforcement procedures. While acknowledging prior approval of 
individual standards by the Assistant Secretary, this requirement 
stresses that State standards, in actual operation, must be at least as 
effective as the Federal standards. See Secs. 1902.37(b)(4), 
1902(c)(1), 1902.3(d)(l), 1903.4(a), and 1902.4(b)(2). As already 
noted, the North Carolina plan provides for adoption of standards 
identical to Federal standards. North Carolina also adopted 
interpretations which are identical to the Federal interpretations in 
most instances.
    The State is required to take the necessary administrative judicial 
or legislative action to correct any deficiency in its program caused 
by an administrative or judicial challenge to any State standard, 
whether the standard is identical to the Federal standards or developed 
by the State. See Sec. 1902.37(b)(5). No such challenge to State 
standards has ever occurred in North Carolina. [18(e) Evaluation 
Report, p. 3.]
    When granting permanent variances from standards, the State is 
required to ensure that the employer provides as safe and healthful 
working conditions as would have been provided if the standard were in 
effect. See Secs. 1902.37(b)(6) and 1902.4(b)(2)(iv). North Carolina 
had one request for a permanent variance during the 18(e) evaluation 
period. That request is currently under review by the State. [18(e) 
Evaluation Report, p. 3.]
    Where a temporary variance is granted, the State must ensure, among 
other things, that the employer complies with the standard as soon as 
possible and provides appropriate interim employee protection. See 
Secs. 1902.37(b)(7) and 1902.4(b)(2)(iv). The North Carolina temporary 
variance procedures require that any employer granted a temporary 
variance must have an effective program for coming into compliance with 
the standard as soon as possible. During the section 18(e) evaluation 
period, no temporary variance requests were received. [18(e) Evaluation 
Report. p. 3].
(b) Enforcement
    Section 18(c)(2) of the Act requires State plans to maintain an 
enforcement program which is at least as effective as that conducted by 
Federal OSHA. Section 18(c)(3) requires the State plan to provide for 
right of entry and inspection of all work places at least as effective 
as that in section 8 of the Act
    Inspection Targeting. The State inspection program must provide for 
sufficient resources to be directed to designated target industries 
while providing adequate protection to all other workplaces covered 
under the plan. See Secs. 1902.37(b)(8), 1902.3(d)(1), and 1902.4(c). 
North Carolina targets estabishments for programmed inspections based 
on industry injury/illness rates for safety and chemical exposure and 
violation experience for health. As of July 1992, the State began a 
priority targeting system directed at employers with a workers 
compensation experience rate modifier of 1.5 or greater. North Carolina 
has also implemented a cooperative compliance targeting program, known 
as the ``North Carolina 248'' program, which targets the 248 employers 
with the highest worker's compensation claim rates for a period of 
three years. Since the inception of the ``North Carolina 248'' program, 
154 of the 248 establishments have received an inspection by NC-OSH. 
North Carolina continues to conduct a high percentage of all programmed 
inspections in the high hazard industries in the state. [18(e) 
Evaluation Report, p. 4-5].
    Denials of Entry. In cases of refusal of entry, the State must 
exercise its authority, through appropriate means, to enforce the right 
of entry and inspection. See Secs. 1902.37(b)(9). 1902.3 (e) and (f), 
and 1902.4(c)(2) (I) and (ix). Title 40.1 of the Code of North Carolina 
allows the Commissioner to seek a warrant to permit entry into such 
establishment that has refused entry for the purpose of inspection or 
investigation. North Carolina obtained entry in 90% of refusals during 
this nine month evaluation period. [18(e) Evaluation Report, p. 6]
    Inspection Procedures. Inspections must be conducted in a competent 
manner following approved enforcement procedures which include the 
requirement that inspectors acquire information adequate to support any 
citation issued. See Secs. 1902.37(b)(10), 1902.3(d)(1), and 
1902.4(c)(2). Procedures for the North Carolina occupational safety and 
health compliance program are set out in the North Carolina Field 
Operations Manual, which is patterned after the Federal manual, and 
thus follows inspection procedures, including documentation procedures, 
which are similar to Federal procedures. The Evaluation Report notes 
overall adherence by North Carolina to these procedures.
    Identifying and Citing Hazards: North Carolina cited an average of 
5 violations per safety inspection and 3.9 violations per health 
inspection. 30.7% of safety violations and 30.5% of health violations 
were cited as serious. The percentage of serious safety and health 
violations were lower than the comparable Federal percentages. The 
state continues to provide compliance officers with specific training 
and direction to ensure the proper classification of violations of 
standards. [18(e) Evaluation Report, p. 8]
    Advance Notice: State plans must include a prohibition on advance 
notice, and exceptions must be no broader than those allowed by Federal 
OSHA procedure. See Sec. 1902.3(f). North Carolina adopted approved 
procedures for advance notice similar to the Federal procedures.
    Employee Participation: State plans must provide for inspections in 
response to employee complaints, and must provide an opportunity for 
employee participation in State inspections. See Sec. 1902.4(c) (I) 
through (iii). North Carolina has procedures

[[Page 48450]]

similar to Federal OSHA for processing and responding to complaints and 
providing for employee particpation in State inspections. The data 
indicates that during the evaluation period the State responded to 85% 
of serious safety and health complaints within the prescribed time 
frame of 30 days. No complaints were classified as imminent danger 
during the review period. [18(e) Evaluation Report, p. 7]
    Nondiscrimination. State plans must also provide protection for 
employees against discrimination similar to that found in section 11(c) 
of the Federal Act. See Sec. 1902.4(c)(2)(v). Title 40.1 of the Code of 
North Carolina and State regulations provide for discrimination 
protection equivalent to that provided by Federal OSHA. Employees have 
up to 180 days to file a complaint, compared to the Federal 30 days. A 
total of 66 complaints alleging discrimination were received during the 
evaluation period, of which, only 6 had lapse times of more than 90 
days from date of receipt to the date of determination. 60 of the cases 
had been settled, withdrawn, dismissed, or filed for litigation by the 
end of the period. [18(e) Evaluation Report, p. 13]
    Citations and Proposed Penalties. The State is required to issue, 
in a timely manner, citations, proposed penalties, and notices of 
failure to abate. See Secs. 1902.37(b)(11), 1902.3(d), and 1902.4(c)(2) 
(x) and (xi). The State's lapse time from last day of inspection to 
issuance of citation averaged 36.7 days for safety and 57.9 days for 
health. Both of the lapse times compare favorably to Federal OSHA's 
time lapse.
    The State must propose penalties in manner that is at least as 
effective as the penalties under the Federal program, which includes 
first instance violation penalties and consideration of comparable 
factors required in the Federal program. See Secs. 1902.37(b)(12), 
1902.3(d), and 1902.4(c) (x) and (xi). North Carolina's procedures for 
penalty calculation are the similar to the Federal procedures. The 
section 18(e) Evaluation Report noted that North Carolina proposes 
appropriate penalties. The average penalty for serious safety 
violations was $1215.10 and the average serious health penalty was 
$1056.30. [18(e) Evaluation Report, p. 8-9]
    Abatement. The State must ensure abatement of hazards cited 
including issuance of notices of failure to abate and appropriate 
penalties. See Secs. 1902.37(b)(13), 1902.3(d), and 1902.4(c) (vii) and 
(xi). North Carolina's abatement periods for serious violations 
averaged 15.5 days for safety and 6.8 days for health. [18(e) 
Evaluation Report, p.9]
    Whenever appropriate, the State must seek administrative and 
judicial review of adverse adjudications. Additionally, the State must 
take necessary and appropriate action to correct any deficiencies in 
its program which may be caused by an adverse administrative or 
judicial determination. See Secs. 1902.37(b)(14) and 1902.3 (d) and 
(g). The North Carolina section 18(e) Evaluation Report noted no 
instances of adverse adjudications.
(c) Staffing and Resources
    The State is required to have a sufficient number of adequately 
trained and competent personnel to discharge its responsibilities under 
the plan. See section 18(c)(4) of the Act; 29 CFR 1902.37(b)(1), 
1902.3(d) and 1902.3(h). A State must also direct adequate resources to 
administration and enforcement of the plan. See section 18(c)(5) of the 
Act and Sec. 1902.3(I). As discussed above, the North Carolina plan 
provides for 64 safety compliance officers and 51 industrial hygienists 
as set forth in the North Carolina FY 1996 grant. This staffing level 
meets the approved, revised ``fully effective'' benchmarks for North 
Carolina for health and safety staffing, as discussed elsewhere in this 
notice. At the close of the evaluation period the State had 60 safety 
and 47 health compliance officers positions filled. [18(e) Evaluation 
Report, p. 17]
    North Carolina provides its safety and health personnel with formal 
training based on the needs of the staff and availability of funds. The 
OSHA Training Institute is utilized for staff training, and the State 
conducts quarterly conferences to train personnel in new and updated 
policy and technical changes. [18(e) Evaluation Report, p. 14]
(d) Other Requirements
    Public Employees: States which have approved plans must maintain a 
safety and health program for State and local employees which must be 
as effective as the State's plan for the private sector. See 
Sec. 1902.3(j). The North Carolina plan provides a program in the 
public sector which is comparable to that in the private sector, 
including assessment of penalties. Injury and illness rates are lower 
in the public sector than in the private. [18(e) Evaluation Report, p. 
9-11]
    Injury/Illness Rates: As a factor of its section 18(e) 
determination, OSHA must consider whether the Bureau of Labor 
Statistics' annual occupational safety and health survey and other 
available Federal and State measurements of program impact on worker 
safety and health indicate that trends in worker safety and health 
injury and illness rates under the State program compare favorably with 
those under the Federal program. See Sec. 1902.37(b)(15). In 1994, the 
private sector rate for all industries remained at 3.5 as it has been 
since 1989. There were slight increases in, manufacturing--1993-4.0, 
1994-4.1, and construction--1993-4.7, 1994-5.1, but both areas were 
still below the nationwide rate of 3.8 for all industries, 5.5 for 
manufacturing, and 5.5 for construction. [18(e) Evaluation Report, p. 
18]
    Required Reports: State plans must assure that employers in the 
State submit reports to the Secretary in the same manner as if the plan 
were not in effect. See section 18(c)(7) of the Act; 29 CFR 1902.3(k). 
The plan must also provide assurance that the designated agency will 
make such reports to the Secretary in such form and containing such 
information as he may from time to time require. Section 18(c)(8) of 
the Act; 29 CFR 1902.4(1). North Carolina employer recordkeeping 
requirements are identical to those of Federal OSHA, and the State 
participates in the BLS Annual Survey of Occupational Illness and 
Injuries. As noted above, the State participates and has assured its 
continuing participation with OSHA in the Integrated Management 
Information System (IMIS) as a means of providing reports on its 
activities to OSHA.
    Voluntary Compliance: Section 1902.4(c)(2)(xiii) requires States to 
undertake programs to encourage voluntary compliance by employers by 
such means as conducting training and consultation with employers and 
employees. In the private sector the State conducted 178 employer and 
employee training sessions with 3,117 employer attendees and 5,445 
employee attendees at the sessions. The State, through a cooperative 
agreement with the North Carolina Community College System Small 
Business Centers, also participated in conducting 43 workshops covering 
several safety and health subjects. [18(e) Evaluation Report, p.14]
    The State has entered into a partnership with North Carolina State 
University to provide comprehensive ergonomic services to citizens and 
employers through the Ergonomics Resource Center. The Center has 
developed a comprehensive outreach program which includes education, 
research, on-site consultation, technology transfer and monitoring, on 
a fee basis. The Center has been selected as one of the semi-finalists 
in the 1996 Innovations in American Government Awards program.

[[Page 48451]]

    North Carolina also has initiated a Cooperative Assessment Program 
for ergonomics which encourages employers to voluntarily address 
ergonomic problems through an agreement similar to a post-citation 
settlement agreement. The State has also entered into a Memorandum of 
Understanding with the State Department of Agriculture, Meat and 
Poultry Inspection Services to train MPIS inspectors to recognize and 
address workplace hazards.
    In addition, on-site consultation services are provided in the 
public sector. (The State's on-site consultation program for the 
private sector is conducted apart from the State plan under an 
agreement with OSHA under section 7(c)(1) of the OSH Act.)

Effect of Sec. 18(e) Determination

    If the Assistant Secretary, after completion of the proceedings 
described in this notice, determines that the statutory and regulatory 
criteria for State plans are being applied in actual operations, final 
approval will be granted and Federal standards and enforcement 
authority will cease to be in effect with respect to issues covered by 
the North Carolina plan, as provided by Section 18(e) of the Act and 29 
CFR 1902.42(c). North Carolina has excluded from its plan: Safety and 
health coverage in private sector maritime activities (enforcement of 
occupational safety and health standards comparable to 29 CFR Parts 
1915, shipyard employment; 1917, marine terminals; 1918, longshoring; 
and 1919, gear certification, as well as provisions of general industry 
standards (29 CFR Part 1910) appropriate to hazards found in these 
employments). In addition, North Carolina does not cover employment on 
Indian reservations, enforcement relating to any contractors or 
subcontractors on any Federal establishment where the land has been 
ceded to the Federal Government, railroad employment, and enforcement 
on military bases. Thus, Federal coverage of these areas would be 
unaffected by an affirmative section 18(e) determination.
    In the event an affirmative section 18(e) determination is made by 
the Assistant Secretary following the proceedings described in the 
present notice, a notice will be published in the Federal Register in 
accordance with 29 CFR 1902.43; the notice will specify the issues as 
to which Federal authority is withdrawn, will state that Federal 
authority with respect to enforcement under section 5(a)(1) of the Act 
and discrimination complaints under section 11(c) of the Act remains in 
effect, and will state that if continuing evaluations show that the 
State has failed to maintain a compliance staff which meets the revised 
fully effective benchmarks, or has failed to maintain a program which 
is at least as effective as the Federal, or that the State has failed 
to submit program change supplements as required by 29 CFR Part 1953, 
the Assistant Secretary may revoke or suspend final approval and 
reinstate Federal enforcement authority or, if the circumstances 
warrant, initiate action to withdraw approval of the State plan. At the 
same time, Subpart C of 29 CFR Part 1952, which codifies OSHA decisions 
regarding approval of the North Carolina plan, would be amended to 
reflect the section 18(e) determination if an affirmative determination 
is made.

Documents of Record

    All information and data presently available to OSHA relating to 
the North Carolina section 18(e) proceeding have been made a part of 
the record in this proceeding and placed in the OSHA Docket Office. The 
contents of the record are available for inspection and copying at the 
following locations:
    Docket Office, Room N-2625, Docket No. T-031, Occupational Safety 
and Health Administration, U.S. Department of Labor, 200 Constitution 
Avenue NW, Washington, DC 20210;
    Office of the Regional Administrator, Occupational Safety and 
Health Administration, U.S. Department of Labor, 1375 Peachtree Street, 
N.E., Suite 587, Atlanta, Georgia 30367; and North Carolina Department 
of Labor, Division of Occupational Safety and Health, 319 Chapanoke 
Road--Suite 105, Raleigh, North Carolina 27603-3432.
    To date, the record on final approval determination includes copies 
of all Federal Register documents regarding the plan, including notices 
of plan submission, initial Federal approval, certification of 
completion of developmental steps, codification of the State's 
operational status agreement, and other plan supplements. The record 
also includes the State plan document, which includes a plan narrative, 
the State legislation, regulations and procedures, an organizational 
chart for State staffing; the State's FY 1997 Federal grant; and the 
October 1, 1995 through June 30, 1996 18(e) Evaluation Report and all 
previous, post-certification reports.

Public Participation

Request for Public Comment and Opportunity To Request Hearing

    The Assistant Secretary is directed under Sec. 1902.41 to make a 
decision whether an affirmative section 18(e) determination is 
warranted or not. As part of the Assistant Secretary's decision-making 
process, consideration must be given to the application and 
implementation by North Carolina of the requirements of section 18(c) 
of the Act and all specified criteria and indices of effectiveness as 
presented in 29 CFR 1902.3 and 1902.4. These criteria and indices must 
be considered in light of the factors in 29 CFR 1902.37 (b)(1) through 
(15). However, this action will be taken only after all the information 
contained in the record, including OSHA's evaluation of the actual 
operations of the State plan, and information presented in written 
submissions and during an informal public hearing, if held, is reviewed 
and analyzed. OSHA is soliciting public participation in this process 
so as to assure that all relevant information, views, data and 
arguments related to the indices, criteria and factors presented in 29 
CFR Part 1902, as they apply to North Carolina State plan, are 
available to the Assistant Secretary during this administrative 
proceeding.
    Interested persons are invited to submit written data, views, and 
arguments with respect to this proposed section 18(e) determination. 
These comments must be received on or before (30 days) and submitted in 
quadruplicate to the Docket Officer, Docket No. T-031, Room N-2625, 
U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 
20210. Written submissions must clearly identify the issues which are 
addressed and the positions taken with respect to each issue. The State 
of North Carolina will be afforded the opportunity to respond to each 
submission.
    Pursuant to 29 CFR 1902.39(f), interested persons may request an 
informal hearing concerning the proposed section 18(e) determination. 
Such requests also must be received on or before (30 days) and should 
be submitted in quadruplicate to the Docket Officer, Docket T-031, at 
the address noted above. Such requests must present particularized 
written objections to the proposed section 18(e) determination. The 
Assistant Secretary will decide within 30 days of the last day for 
filing written views or comments and requests for a hearing whether the 
objections raised are substantial and, if so, will publish notice of 
the time and place of the scheduled hearing.
    The Assistant Secretary will, within a reasonable time after the 
close of the comment period or after the certification of the record if 
a hearing is held, publish his decisions in the Federal

[[Page 48452]]

Register. All written and oral 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 requests 
for hearing and all materials submitted in response to this notice and 
at any subsequent hearing, will be available for 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.

Regulatory Flexibility Act

    OSHA certifies pursuant to the Regulatory Flexibility Act of 1980 
(5 U.S.C. 601 et seq.) that this determination will not have a 
significant economic impact on a substantial number of small entities. 
Final approval would not place small employers in North Carolina 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, Occupational Safety and Health Administration.

(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 6th day of September, 1996.
Joseph A. Dear,
Assistant Secretary of Labor.
[FR Doc. 96-23459 Filed 9-12-96; 8:45 am]
BILLING CODE 4510-26-P