[Federal Register Volume 61, Number 244 (Wednesday, December 18, 1996)]
[Rules and Regulations]
[Pages 66593-66602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32083]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

[Docket No. T-031]


North Carolina State Plan; Final Approval Determination

December 10, 1996.
AGENCY: Occupational Safety and Health Administration (OSHA), U.S. 
Department of Labor.

ACTION: Final State plan approval.

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SUMMARY: This document amends OSHA's regulations to reflect the 
Assistant Secretary's decision granting final approval to the North 
Carolina State plan. As a result of this affirmative determination 
under section 18(e) of the Occupational Safety and Health Act of 1970, 
Federal OSHA's standards and enforcement authority no longer apply to 
occupational safety and health issues covered by the North Carolina 
plan, and authority for Federal concurrent jurisdiction is 
relinquished. Federal enforcement jurisdiction is retained over private 
sector maritime activities, 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. 
Federal jurisdiction remains in effect with respect to Federal 
government employers and employees.

EFFECTIVE DATE: December 10, 1996.

FOR FURTHER INFORMATION CONTACT: Bonnie Friedman, 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:

Introduction

    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

[[Page 66594]]

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 court order by the U.S. 
District Court for the District of Columbia pursuant to the U.S. Court 
of Appeals'' decision in AFL-CIO v. Marshall, 570 F.2d 1030 (D.C. Cir 
1978), 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.
    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 and continuing approval.

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

North Carolina Plan

    A history of the North Carolina State plan, a description of its 
provisions, and a discussion of the compliance staffing benchmarks 
established for North Carolina was contained in the September 13, 1996, 
Federal Register notice (61 FR 48446 ) proposing that final approval 
under Section 18(e) of the Act be granted. The North Carolina State 
plan was submitted on November 27, 1972, initially approved on February 
1, 1973 (38 FR 3041), certified as having completed all developmental 
steps on October 5, 1976 (41 FR 43896), concurrent Federal enforcement 
jurisdiction suspended on February 20, 1975 (40 FR 16843), reinstated 
on October 24, 1991 (56 FR 55192) and again suspended on March 7, 1995 
(44 FR 12416); and revised compliance staffing benchmarks for North 
Carolina were approved on January 17, 1986 (51 FR 2481) and June 4, 
1996 (61 FR 28053).

History of the Present Proceedings

    Procedures for final approval of State plans are set forth at 29 
CFR 1902, Subpart D. On September 13, 1996, OSHA published notice (61 
FR 48446) of the eligibility of the North Carolina State plan for 
determination under section 18(e) of the Act as to whether final 
approval of the plan should be granted. The determination of 
eligibility was based on monitoring of State operations for at least 
one year following certification, State participation in the Federal-
State Integrated Management Information System, and staffing which 
meets the revised State staffing benchmarks.
    The September 13 Federal Register notice set forth a general 
description of the North Carolina State plan and summarized the results 
of Federal OSHA monitoring of State operations during the period from 
October 1, 1993 through June 30, 1996. In addition to the information 
set forth in the notice itself, OSHA made available as part of the 
record extensive and detailed exhibits documenting the plan, including 
copies of the State legislation, administrative regulations and 
procedural manuals under which North Carolina operates its plan, and 
copies of all previous Federal Register notices regarding the plan.
    Copies of the most recent comprehensive evaluation report, the 
October 1, 1993 through September 30, 1995, Biennial Evaluation Report, 
and the ``18(e) Evaluation Report'', covering the period of October 1, 
1995 through June 30, 1996 of the North Carolina Plan which was 
extensively summarized in the September 13 proposal and provided the 
principal factual basis for the proposed 18(e) determination, were 
included in the docket.
    To assist and encourage public participation in the 18(e) 
determination, copies of all docket materials were maintained in the 
OSHA Docket Office in Washington, DC., in the OSHA Regional Office in 
Atlanta, Georgia, and at the North Carolina Department of Labor, 
Division of Occupational Safety and Health in Raleigh, North Carolina. 
Summaries of the September 13 notice, with an invitation for public 
comments, were published in North Carolina on September 20, 1996, in 
the following newspapers: Charlotte Observer, Winston-Salem Journal, 
Asheville Citizen Times, Wilmington Morning Star, Raleigh News and 
Observer, and The Greensboro New and Record.
    The September 13 notice invited interested persons to submit by 
October 15 written comments and views regarding the North Carolina plan 
and whether final approval should be granted. An opportunity to request 
an informal public hearing also was provided. Twenty-six (26) comments 
were received in response to this proposal; none requested an informal 
hearing.

Summary and Evaluation of Comments

    OSHA has encouraged interested members of the public to provide 
information and views regarding operations under the North Carolina 
plan to supplement the information already gathered during OSHA 
monitoring and evaluation of plan administration.
    In response to the September 13 proposal, OSHA received comments 
from: Don Beussee, Director, Health and Safety Services, Burlington 
Industries, Inc. [Ex. 14-1]; Jim H. Conner, Executive Vice President, 
The American Yarn Spinners Association, Inc. [Ex. 14-2]; Linda Moore, 
Chairperson, NC Tarheel Association of Occupational Health Nurses [Ex. 
14-3]; R. Paul Wilms, Director, Regulatory Affairs, NC Home Builders 
Association [Ex. 14-4]; Garry Moore, Director of Human Resources, 
Kentucky Derby Hosiery Co., Inc. [Ex. 14-5]; Douglas Brackett, 
Executive Vice President, American Furniture Manufacturers Association 
[Ex. 14-6]; Thomas F. Cecich, Vice President, Environmental Safety, 
GlaxoWellcome, Inc. [Ex. 14-7]; Dennis M. Julian, Executive Vice 
President, NC Textile Manufacturers Association, Inc. [Ex. 14-8]; W. B. 
Jenkins, President, NC Farm Bureau Federation [Ex. 14-9]; Robert W. 
Slocum, Jr., Executive Vice President, NC Forestry Association., Inc. 
[Ex. 14-10]; James E. McCauley, Director, Safety and Security, Perdue 
Farms Inc. [Ex. 14-11]; Judith S. Ostendorf, President, NC Tarheel 
Association of Occupational Health Nurses [Ex. 14-12]; Cheryl N. 
Kennedy, NC Costal Plains Association of Occupational Health Nurses 
[Ex. 14-13]; Ginger Lusk, President, NC Foothills Association of 
Occupational Health Nurses [Ex. 14-14]; Robin Lee, Vice President, 
Metrolina of NC Association of Occupational Health Nurses [Ex. 14-15]; 
Lisa Ramber, Manager, Safety and Health, American Textile Manufacturers 
Institute [Ex. 14-16]; Henry L. Schmulling, Jr., Manager, Corporate 
Safety and Industrial Hygiene, Duke Power Company [Ex. 14-17]; Timothy 
J. Pizatella, Acting Director, Division of

[[Page 66595]]

Safety Research, NIOSH [Ex. 14-18]; Belinda S. Worsham, Occupational 
Health Nurse Consultant [Ex. 14-20]; June H. Hoyle, Occupational Health 
Nurse Practitioner, City of High Point, NC [Ex. 14-21]; Patricia 
Dalton, Administrator/Occupational Health, Pitt County Memorial 
Hospital [Ex. 14-22]; Lynn H. Hollifield, President, Western NC 
Association of Occupational Health Nurses [Ex. 14-23]; Liza Gregg, RN, 
MSN, CIC, CPHQ, NC Association of Occupational Health Nurses [Ex. 14-
24]; Connie Bandy, Vice President, NC Costal Plains AOHN [Ex. 14-25]; 
Bonnie Rogers, President, The American Association of Occupational 
Health Nurses, Inc. [Ex. 14-26]; and Doug E. Croft, President, Chamber 
of Commerce, Thomasville, North Carolina [Ex. 14-27].
    Of the 26 written comments received, ten (10) expressed full 
unqualified support for final approval on the grounds of State 
competence, responsiveness, innovation and specific knowledge of local 
conditions. All of these comments indicated that the State has 
established and operates an effective safety and health program without 
adversarial relations with local industries and workers, and that the 
State has been effective in protecting employees in North Carolina. 
Specifically, the commenters commended the State program for, among 
other things: its growth over the last four years, doubling its 
enforcement and education staffs; offering a full range of educational 
and consultative programs to the regulated community to augment a more 
focused and efficient enforcement effort; a decline every year since 
1992 in the overall occupational injury and illness rate in the State; 
and its establishment of an Ergonomics Resource Center in conjunction 
with North Carolina State University; its initiation of a series of 
partnerships with business and industry trade associations to address 
hazards in areas such as logging, home-building, bottling, and 
furniture.
    Twelve (12) [Exhibits 14-3, 14-12, 14-13, 14-14, 14-15; 14-20; 14-
21; 14-22; 14-23; 14- 24; 14-25; and 14-26] comments were received from 
North Carolina affiliates of the Association of Occupational Health 
Nurses recommending that the North Carolina program include 
occupational health nursing positions in its staffing benchmarks. As 
Deputy Commissioner Charles N. Jeffress noted in his responses [Ex. 14-
19A-D; Ex. 14-28; and Ex. 14-29], this issue was also raised by the 
Association during OSHA's consideration of the State's proposal to 
revise its compliance staffing benchmark levels. However, benchmark 
staffing requirements apply solely to personnel engaged in the 
enforcement of standards and while an individual with an educational 
background in occupational health nursing would be eligible to apply 
for such compliance positions, it would be inappropriate to reserve 
staffing positions for individuals with a particular occupational 
health degree. However, Mr. Jeffress concurs that occupational health 
nurses can add value to an occupational safety and health program 
particularly in the areas of training and compliance assistance. An 
occupational nurse has served as a member of the North Carolina 
Occupational Safety and Health Advisory Council and one is on the staff 
of the North Carolina Ergonomics Resource Center joint program. 
Further, Mr. Jeffress indicates that they have relied on the expertise 
and advice of occupational health professionals in other departments 
with which they conduct cooperative efforts especially in the areas of 
worker health and reporting of occupational illnesses.
    Four (4) commenters, Don Beussee, Director, Health and Safety 
Services, Burlington Industries, Inc. [Ex. 14-1]; Jim H. Conner, 
Executive Vice President, The American Yarn Spinners Association, Inc. 
[Ex. 14-2]; Dennis M. Julian, Executive Vice President, North Carolina 
Textile Manufacturers Association, Inc. [Ex. 14-8]; and Lisa Ramber, 
Manager, Safety and Health, American Textile Manufacturers Institute 
[Ex. 14-16], raise concerns about North Carolina's adoption of more 
stringent enforcement policies with regard to engineering controls for 
noise levels between 90 dBA and 100 dBA and full-shift use of 
respirators for cotton dust exposures in the textile industry. All 
suggest that these interpretations are inconsistent with Federal OSHA's 
standards interpretations and have not been demonstrated to comply with 
the ``product clause'' test of the Act that different State standards 
must be ``required by compelling local conditions and not cause an 
undue burden on interstate commerce.'' Mr. Julian and Mr. Beusse, 
nonetheless, support the granting of final approval while Ms. Ramber 
requests that the State be required to revise its policies prior to 
OSHA granting final approval. Charles Jeffress, Deputy Commissioner of 
Labor, responded individually to each of the comments on October 9, 
1996, Burlington Industries, Inc. (Ex. 14-19); October 15, 1996, 
American Yarn Spinners Association, Inc. (Ex. 14-19A); October 17, 
1996, North Carolina Textile Manufacturers Association, Inc. (Ex. 14-
19B); and October 18, 1996, American Textile Manufacturers Institute 
(Ex. 14-19C).
    North Carolina's standard for noise is identical to the Federal 
standard (29 CFR 1910.95). However, North Carolina requires employers 
to implement engineering controls, where feasible, when noise levels 
are between 90 dBA and 100 dBA. One commenter indicates that this 
policy ``* * * requires employers to spend significant resources to 
engineer incremental reductions in noise levels * * *'' while still 
requiring the use of hearing protection devices. (Federal OSHA policy 
allows employers to rely on an effective hearing conservation program 
in lieu of engineering controls for noise levels between 92 dBA and 
100dBA when this is demonstrated to be more cost effective.) Mr. 
Jeffress indicates that North Carolina's policy is consistent with the 
Federal policy in effect in 1983 and retention of this policy is ``more 
protective'' with the State's emphasis being on ``solving the problem'' 
rather than relying on a ``difficult to administer'' hearing 
conservation program. He further notes that North Carolina requires 
only ``feasible'' engineering and administrative controls in these 
situations and accepts hearing conservation methods when it is the only 
technologically or economically feasible means to control employee 
overexposure to noise at these levels. A case contesting this policy, 
brought by one of the commenters, Burlington Industries, is currently 
before the North Carolina Occupational Safety and Health Review Board.
    North Carolina's standard for cotton dust is also identical to the 
Federal standard (29 CFR 1910.1043). Federal OSHA's interpretation of 
this standard allows the partial-shift wearing of respiratory 
protection where engineering controls alone do not reduce each 
employee's eight-hour time-weighted exposure to below the permissible 
exposure limit (PEL). North Carolina requires that respirators be worn 
during the full shift when engineering controls alone have not reduced 
exposure to below the PEL in order to afford workers the ``greatest 
protection possible'' and in recognition of lung function recovery 
which occurs when workers are removed from dusty environments even for 
short periods of time. The commenters are particularly concerned that 
this policy is also applied to extended shifts of 12 hours where the 
eight-hour time weighted average has been engineered below the PEL. Mr. 
Jeffress responds that he met

[[Page 66596]]

with representatives of the various associations on this issue on March 
27, 1995, and subsequently Commissioner of Labor Harry Payne agreed to 
reevaluate North Carolina's policy upon the submission by the industry 
of data, such as medical or spirometry data, which can be used to 
evaluate the comparative benefits of full-shift respirator usage versus 
partial shift. A second meeting occurred on April 17, 1996, with two 
industry representatives but no data on health effects has been made 
available and no research authorized. North Carolina reiterated its 
offer to reconsider its policy upon the submission of appropriate 
comparative data. OSHA also investigated a Complaint About State 
Program Administration (CASPA) on this issue in 1992 and found the 
State's policy to be acceptable. No further comments or objections were 
received with regard to that finding at that time.
    The OSH Act and implementing regulations require that both State 
standards, and the State's interpretations of those standards, be ``at 
least as effective as'' corresponding Federal OSHA standards and 
interpretations. (Section 18(c)(2); 1902.37(b)(4.) The differences 
between State and Federal standards identified in these comments 
describe State standards interpretations which are more stringent than 
those of Federal OSHA. Therefore, by definition these interpretations 
meet the ``at least as effective'' criterion. The further issues as to 
whether these standards, as interpreted and administered by the State, 
are applicable to products moved or used in interstate commerce; impose 
an undue burden on commerce; and are justified by compelling local 
conditions are not yet ripe for review as both polices are still under 
active consideration within the State, i.e., the noise policy through 
on-going contested cases challenging the policy; the full-shift use of 
respirators through the State's offer to reconsider the policy through 
negotiation with the textile industry.
    OSHA, therefore, does not believe that any of the concerns 
expressed are sufficient to warrant withholding of final approval of 
the North Carolina State Plan especially in light of on-going State 
administrative and adjudicatory procedures.

Findings and Conclusions

    As required by 29 CFR 1902.41, in considering the granting of final 
approval to a State plan, OSHA has carefully and thoroughly reviewed 
all information available to it on the actual operation of the North 
Carolina State plan. This information has included all previous 
evaluation findings since certification of completion of the State 
plan's developmental steps, especially data for the period October 1, 
1993 through June 30, 1996 and information presented in written 
submissions. Findings and conclusions in each of the areas of 
performance are as follows:
    (1) Standards. 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. Such standards where not identical 
to the Federal must be promulgated through a procedure allowing for 
consideration of all pertinent factual information and participation of 
all interested persons (29 CFR 1902.4(b)(2)(iii)); must, where dealing 
with toxic materials or harmful physical agents, assure employee 
protection throughout his or her working life (29 CFR 1902.4(b)(2)(I)); 
must provide for furnishing employees appropriate information regarding 
hazards in the workplace through labels, posting, medical examinations, 
etc. (29 CFR 1902.4(b)(2)(vi)); must require suitable protective 
equipment, technological control, monitoring, etc. (29 CFR 
1902.4(b)(2)(vii)); and, where applicable to a product, must be 
required by compelling local conditions and not pose an undue burden on 
interstate commerce (29 CFR 1902.3(c)(2)).
    As documented in the approved North Carolina State plan and OSHA's 
evaluation findings made a part of the record in this 18(e) 
determination proceeding, and as discussed in the September 13 notice, 
the North Carolina plan provides for the adoption of standards and 
amendments thereto which are, in most cases, identical to Federal 
standards. The State's laws and regulations, previously approved by 
OSHA and made a part of the record in this proceeding, include 
provisions addressing all of the structural requirements for State 
standards set out in 29 CFR part 1902.
    In order to qualify for final State plan approval, a State program 
must be found to have adhered to its approved procedures (29 CFR 
1902.37(b)(2)); to have timely adopted identical or at least as 
effective standards, including emergency temporary standards and 
standards amendments (29 CFR 1902.37(b)(3)); to have interpreted its 
standards in a manner consistent with Federal interpretations and thus 
to demonstrate that in actual operation State standards are at least as 
effective as the Federal (29 CFR 1902.37(b)(4)); and to correct any 
deficiencies resulting from administrative or judicial challenge of 
State standards (29 CFR 1902.37(b)(5)).
    As noted in the ``18(e) Evaluation Report'' and summarized in the 
September 13, 1996, Federal Register notice, North Carolina has adopted 
standards in a timely manner which are, in nearly all cases, identical 
to Federal standards. Where a State adopts Federal standards, the 
State's interpretation and application of such standards must ensure 
consistency with Federal interpretation and application. North Carolina 
has generally adopted standards interpretations which are identical to 
the Federal but in few cases, e.g., noise and cotton dust standards, 
has adopted more protective, but nonetheless at least as effective 
interpretations. (See discussion above on Comments received from the 
textile industry on this issue.)
    OSHA's monitoring has found that the State's application of its 
standards is comparable to Federal standards application. No challenges 
to State standards have occurred in North Carolina.
    Therefore, in accordance with section 18(c)(2) of the Act and the 
pertinent provisions of 29 CFR 1902.3, 1902.4 and 1902.37, OSHA finds 
that the North Carolina program in actual operation provides for 
standards adoption, correction when found deficient, interpretation and 
application, in a manner at least as effective as the Federal Program.
    (2) Variances. A State plan is expected to have the authority and 
procedures for the granting of variances comparable to those in the 
Federal program (29 CFR 1902.4(b)(2)(iv)). The North Carolina State 
plan contains such provisions in both law and regulations which have 
been previously approved by OSHA. In order to qualify for final State 
plan approval, permanent variances granted must assure employment 
equally as safe and healthful as would be provided by compliance with 
the standard (29 CFR 1902.37(b)(6)); temporary variances granted must 
assure compliances as early as possible and provide appropriate interim 
employee protection (29 CFR 1902.37(b)(7)). As noted in the 18(e) 
Evaluation Report and the September 13 notice, North Carolina received 
one request for a permanent variance during the reporting period. That 
request is currently under review by the State. No temporary variance 
request was received during the evaluation period and there are no 
outstanding issues on variances previously granted.
    Accordingly, OSHA finds that the North Carolina program is able to

[[Page 66597]]

effectively grant variances from its occupational safety and health 
standards.
    (3) Enforcement. Section 18(c)(2) of the Act and 29 CFR 
1902.3(c)(1) require a State program to provide a program for 
enforcement of State standards which is and will continue to be at 
least as effective in providing safe and healthful employment and 
places of employment as the Federal program. The State must require 
employer and employee compliance with all applicable standards, rules 
and orders (29 CFR 1902.3(d)(2)) and must have the legal authority for 
standards enforcement including compulsory process (29 CFR 
1902.4(c)(2)).
    The North Carolina occupational safety and health statutes and 
implementing regulations, previously approved by OSHA, establish 
employer and employee compliance responsibility and contain legal 
authority for standards enforcement in terms substantially identical to 
those in the Federal Act. In order to be qualified for final approval, 
the State must have adhered to all approved procedures adopted to 
ensure an at least as effective compliance program (29 CFR 
1902.37(b)(2)). The ``18(e) Evaluation Report'' indicates no 
signficiant lack of adherence to such procedures.
    (a) Inspections. In order to qualify for final approval, the State 
program, as implemented, must allocate sufficient resources toward 
high-hazard workplaces while providing adequate attention to other 
covered workplaces (29 CFR 1902.37(b)(8)). Data contained in the 18(e) 
Evaluation Report noted that North Carolina targets establishments for 
programmed inspections based on industry injury/illness rates for 
safety and chemical exposure and violation experience for health. North 
Carolina has also implemented a cooperative compliance targeting 
program, known as the ``North Carolina 248'' program, which targets 
employers with the highest worker's compensation claim rates for a 
period of three years. North Carolina continues to conduct a higher 
percentage of all programmed inspections in the high-hazard industries 
in the State.
    (b) Employee Notice and Participation in Inspections: State plans 
must provide for inspections in response to employee complaints and 
must provide for an opportunity for employees and their representatives 
to point out possible violations through such means as employee 
accompaniment or interviews with employees (29 CFR 1902.4(c)(i) through 
(iii)). North Carolina has procedures similar to Federal OSHA for 
processing and responding to complaints and providing for employee 
participation 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. 
Employees participated in inspections in almost every case.
    In addition, the State plan must provide that employees be informed 
of their protections and obligations under the Act by such means as the 
posting of notices (29 CFR 1902.4(c)(2)(iv)), and provide that 
employees have access to information on their exposure to regulated 
agents and access to records of the monitoring of their exposure to 
such agents (29 CFR 1902.4(c)(vi)).
    To inform employees and employers of their protections and 
obligations, North Carolina requires that a poster approved by OSHA be 
displayed in all covered workplaces. Requirements for the posting of 
the poster and other notices such as citations, contests, hearings and 
variances applications are set forth in the previously approved State 
law and regulations which are substantially identical to Federal 
requirements. Information on employee exposure to regulated agents and 
access to medical and monitoring records is provided through State 
standards which are, in most instances, identical to the Federal. 
Federal OSHA concluded that the State's performance is satisfactory.
    (c) Nondiscrimination. A State is expected to provide appropriate 
protection to employees against discharge or discrimination for 
exercising their rights under the State's program including provision 
for employer sanctions and employee confidentiality (29 CFR 
1902.4(c)(2)(v)). North Carolina General Statute 95-240 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. The State received a total 
of 66 complaints alleging discrimination during the evaluation period; 
60 of the cases had been settled, withdrawn, dismissed, or filed for 
litigation by the end of the period. Federal OSHA concluded that the 
State's performance is satisfactory.
    (d) Restraint of Imminent Danger; Protection of Trade Secrets. A 
State plan is required to provide for the prompt restraint of imminent 
danger situations (29 CFR 1902.4(c)(2)(vii)), and to provide adequate 
safeguards for the protection of trade secrets (29 CFR 
1902.4(c)(2)(viii)). The State has provisions concerning imminent 
danger and protection of trade secrets in its law, regulations and 
field operations manual which are similar to the Federal requirements. 
There were no imminent danger situations identified during the 
evaluation period. There were no Complaints About State Program 
Administration (CASPA's) filed concerning the protection of trade 
secrets during the report period.
    (e) Right of Entry; Advance Notice. A State program is expected to 
have authority for right of entry to inspect and compulsory process to 
enforce such right equivalent to the Federal program (section 18(c)(3) 
of the Act and 29 CFR 1902.3(e)). In addition, a State is expected to 
prohibit advance notice of inspection, allowing exceptions thereto no 
broader than the Federal program (29 CFR 1902.3(f)). North Carolina 
General Statute 95-133 authorizes the Commissioner to enter and inspect 
all covered workplaces in terms substantially identical to those in the 
Federal Act. The North Carolina statute also allows the Commissioner to 
apply for a warrant to permit entry into such establishments that have 
refused entry for the purpose of inspection or investigation. The North 
Carolina law allows the Commissioner to issue subpoenas ``to require 
the attendance and testimony of witnesses and the production of 
evidence under oath'' in regard to Divisional inspections and 
investigations. The North Carolina law also prohibits advance notice, 
and implementing procedures for exceptions to this prohibition are 
substantially identical to the Federal procedures.
    In order to be found qualified for final approval, a State is 
expected to take action to enforce its right of entry when denied (29 
CFR 1902.37(b)(9)) and to adhere to its advance notice procedures. 
North Carolina had 10 denials of entry, during the 18(e) evaluation 
period, and was successful in obtaining warrants for nine (90%) of 
them. North Carolina has adopted and implemented procedures for advance 
notice similar to the Federal procedures.
    (f) Citations, Penalties, and Abatement. A State plan is expected 
to have authority and procedures for promptly notifying employers and 
employees of violations identified during inspections, for the purpose 
of effective first-instance sanctions against employers found in 
violation of standards and for prompt employer notification of such 
penalties (29 CFR 1902.4(c)(2) (x) and (xi)). The North Carolina plan, 
through its law, regulations and field operations manual has 
established a system similar to the Federal program to provide for the 
prompt issuance of citations to

[[Page 66598]]

employers delineating violations and establishing reasonable abatement 
periods, requiring posting of such citations for employee information, 
and proposing penalties.
    In order to be qualified for final approval, the State, in actual 
operation, must be found to conduct competent inspections in accordance 
with approved procedures and to obtain adequate information to support 
resulting citations (29 CFR 1902.37(b)(10)), to issue citations, 
proposed penalties and failure-to-abate notifications in a timely 
manner (29 CFR 1902.37(b)(11)), to propose penalties for first-instance 
violations that are at least as effective as those under the Federal 
program (29 CFR 1902.37(b)(12)), and to ensure abatement of hazards 
including issuance of failure-to-abate notices and appropriate 
penalties (29 CFR 1902.37(b)(13)).
    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. The State follows 
inspection procedures, including documentation procedures, which are 
similar to the Federal procedures. The 18(e) Evaluation Report notes 
overall adherence by North Carolina to these procedures. North Carolina 
cited an average of 5 violations per safety inspection and 3.9 
violations per health inspection; and 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. North Carolina's lapse time 
from the opening conference 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 lapse time.
    North Carolina's procedures for calculation of penalties are 
similar to those of Federal OSHA. The 18(e) Evaluation Report noted 
that North Carolina proposes appropriate penalties. The average penalty 
for serious safety violations was $1,215.10 and the average serious 
health penalty was $1,056.30. North Carolina's abatement periods for 
serious violations averaged 15.5 days for safety and 6.8 days for 
health.
    (g) Contested Cases. In order to be considered for initial approval 
and certification, a State plan must have authority and procedures for 
employer contest of citations, penalties and abatement requirements at 
full administrative or judicial hearings. Employees must also have the 
right to contest abatement periods and the opportunity to participate 
as parties in all proceedings resulting from an employer's contest (29 
CFR 1902.4(c)(2)(xii)). North Carolina's procedures for employer and 
employee contest of citations, penalties and abatement requirements and 
for ensuring employees' rights are contained in the law, regulations 
and field operations manual made a part of the record in this 
proceeding. As noted elsewhere in this notice, the North Carolina plan 
provides for the review of contested cases by the independent North 
Carolina Occupational Safety and Health Review Board. State regulation 
and procedures provide a 20 working day period for informal conference 
which, if held, results in either a settlement agreement or a Notice of 
No Change which, in turn, may be contested to the Review Board within 
15 working days. On average 4.6% of all inspections with citations are 
contested.
    To qualify for final approval, the State must seek review of any 
adverse adjudications and take action to correct any enforcement 
program deficiencies resulting from adverse administrative or judicial 
determinations (29 CFR 1902.37(b)(14)). The North Carolina 18(e) 
Evaluation Report noted no instances of adverse adjudications.
    (h) Enforcement Conclusion. In summary, the Assistant Secretary 
finds that enforcement operations provided under the North Carolina 
plan are competently planned and conducted, and are overall at least as 
effective as Federal OSHA enforcement.
    (4) Public Employee Program: Section 18(c)(6) of the Act requires 
that a State which has an approved plan must maintain an effective and 
comprehensive safety and health program applicable to all employees of 
public agencies of the State and its political subdivisions, which 
program must be as effective as the standards contained in an approved 
plan. 29 CFR 1902.3(j) requires that a State's program for public 
employees be as effective as the State's program for private employees 
covered by the plan. 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.
    During the 18(e) Evaluation period, North Carolina conducted 136 
public sector inspections. The proportion of inspections dedicated to 
the public sector (5% of total inspections) during the evaluation 
period was appropriate to the needs of public employees.
    Because North Carolina's performance in the public sector is 
comparable to that in the private sector, OSHA concludes that the North 
Carolina program meets the criteria in 29 CFR 1902.3(j).
    (5) Staffing and Resources. Section 18(c)(4) of the Act requires 
State plans to provide the qualified personnel necessary for the 
enforcement of standards. In accordance with 29 CFR 1902.37(b)(1), one 
factor which OSHA must consider in evaluating a plan for final approval 
is whether the State has a sufficient number of adequately trained and 
competent personnel to discharge its responsibilities under the plan.
    The North Carolina plan provides for 64 safety compliance officers 
and 51 industrial hygienists as set forth in the North Carolina FY 1996 
and FY 1997 grant applications. 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.
    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.
    Because North Carolina has allocated sufficient enforcement staff 
to meet the revised benchmarks for that State, and personnel are 
trained and competent, the requirements for final approval set forth in 
29 CFR 1902.37(b)(1), and in the court order in AFL-CIO v. Marshall, 
supra, are being met by the North Carolina plan.
    Section 18(c)(5) of the Act requires that the State devote adequate 
funds to administration and enforcement of its standards. The North 
Carolina plan was funded at $12,469,715 in FY 1996. ($3,131,400 (25%) 
of the funds were provided by Federal OSHA and $9,338,315 (75%) were 
provided by the State.)
    As noted in the 18(e) Evaluation report, North Carolina's funding 
is judged sufficient in absolute terms; moreover, the State allocates 
its resources to the various aspects of the program in an effective 
manner. On this basis, OSHA finds that North Carolina has provided 
sufficient funding and

[[Page 66599]]

resources for the various activities carried out under the plan.
    (6) Record and 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 (section 18(c)(7) of the Act and 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 and 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 well as the OSHA Data 
Initiative. 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.
    For the foregoing reasons, the OSHA finds that North Carolina has 
met the requirements of sections 18(c) (7) and (8) of the Act on 
employer and State reports to the Secretary.
    (7) Voluntary Compliance: A State plan is required to undertake 
programs to encourage voluntary compliance by employers and employees 
(29 CFR 1902.4(c)(2)(xiii)).
    North Carolina, in the private sector, 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.
    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 was one of the semi-finalists in the 1996 
Innovations in American Government Awards program.
    North Carolina also has initiated a Cooperative Assessment Program 
for ergonomics which encourages employers who are being inspected 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 under the plan. In the private sector on-site 
consultation services are provided to employers under a cooperative 
agreement with OSHA under section 7(c)(1) of the Act and 29 CFR Part 
1908.
    Accordingly, OSHA finds that North Carolina has established and is 
administering an effective voluntary compliance program.
    (8) 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 lost workday case rate for all industries remained at 
3.5 as it has been since 1989. There were slight increases in 
manufacturing, from 4.0 in 1993 to 4.1 in 1994, and in construction, 
from 4.7 in 1993 to 5.1 in 1994, but both areas were still below the 
nationwide rate of 3.8 for all industries, 5.5 for manufacturing, and 
5.5 for construction.
    OSHA finds that during the evaluation period trends in worker 
injury and illness in North Carolina were comparable with those in 
States with Federal enforcement; actual injury and illness rates within 
the State were lower.

Decision

    OSHA has carefully reviewed the record developed during the above 
described proceedings, including all comments received thereon. The 
present Federal Register document sets forth the findings and 
conclusions resulting from this review.
    In light of all the facts presented on the record, the Assistant 
Secretary has determined that the North Carolina State plan for 
occupational safety and health, which has been monitored for at least 
one year subsequent to certification, is in actual operation at least 
as effective as the Federal program and meets the statutory criteria 
for State plans in section 18(e) of the Act and implementing 
regulations at 29 CFR Part 1902. Therefore, the North Carolina State 
plan is hereby granted final approval under section 18(e) of the Act 
and implementing regulations at 29 CFR part 1902, effective December 
10, 1996.
    Under this 18(e) determination, North Carolina will be expected to 
maintain a State program which will continue to be at least as 
effective as operations under the Federal program in providing employee 
safety and health at covered workplaces. This requirement includes 
submitting all required reports to the Assistant Secretary as well as 
submitting plan supplements documenting State-initiated program 
changes, changes required in response to adverse evaluation findings, 
and responses to mandatory Federal program changes. In addition, North 
Carolina must continue to allocate sufficient safety and health 
enforcement staff to meet the benchmarks for State compliance staffing 
established by the Department of Labor, or any revision to those 
benchmarks.

Effect of Decision

    The determination that the criteria set forth in section 18(c) of 
the Act and 29 CFR Part 1902 are being applied in actual operations 
under the North Carolina plan terminates OSHA authority for Federal 
enforcement of its standards in North Carolina, in accordance with 
section 18(e) of the Act, in those issues covered under the State plan. 
Section 18(e) provides that upon making this determination ``the 
provisions of sections 5(a)(2), 8 (except for the purpose of carrying 
out subsection (f) of this section), 9, 10, 13, and 17, shall not apply 
with respect to any occupational safety and health issues covered under 
the plan, but the Secretary may retain jurisdiction under the above 
provisions in any proceeding commenced under section 9 or 10 before the 
date of determination.''
    Accordingly, Federal authority to issue citations for violation of 
OSHA standards (sections 5(a)(2) and 9); to conduct inspections (except 
those necessary to conduct evaluations of the plan under section 18(f), 
and other inspections, investigations or proceedings necessary to carry 
out Federal responsibilities which are not specifically preempted by 
section 18(e) (section 8); to conduct enforcement proceedings in 
contested cases (section 10); to institute proceedings to correct 
imminent dangers (section 13); and to propose civil penalties or 
initiate criminal proceedings for violations of the Federal OSH Act 
(section 17) is relinquished as of the effective date of this 
determination.
    Federal authority under provisions of the Act not listed in section 
18(e) is unaffected by this determination. Thus, for example, the 
Assistant Secretary

[[Page 66600]]

retains his authority under section 11(c) of the Act with regard to 
complaints alleging discrimination against employees because of the 
exercise of any right afforded to the employee by the Act although such 
complaints may be initially referred to the State for investigation. 
Any proceeding initiated by OSHA under sections 9 and 10 of the Act 
prior to the date of this final determination would remain under 
Federal jurisdiction. The Assistant Secretary also retains his 
authority under section 6 of the Act to promulgate, modify or revoke 
occupational safety and health standards which address the working 
conditions of all employees, including those in States which have 
received an affirmative 18(e) determination. In the event that a 
State's 18(e) status is subsequently withdrawn and Federal authority 
reinstated, all Federal standards, including any standards promulgated 
or modified during the 18(e) period, would be Federally enforceable in 
the State.
    In accordance with section 18(e), this determination relinquishes 
Federal OSHA authority only with regard to occupational safety and 
health issues covered by the North Carolina plan, and OSHA retains full 
authority over issues which are not subject to State enforcement under 
the plan. Thus, for example, Federal OSHA retains its authority to 
enforce all provisions of the Act, and all Federal standards, rules or 
orders which relate to safety or health coverage of private sector 
maritime activities (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); 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. In addition Federal OSHA may subsequently initiate the exercise 
of jurisdiction over any issue (hazard, industry, geographical area, 
operation or facility) for which the State is unable to provide 
effective coverage for reasons which OSHA determines are not related to 
the required performance or structure of the State plan.
    As provided by section 18(f) of the Act, the Assistant Secretary 
will continue to evaluate the manner in which the State is carrying out 
its plan. Section 18(f) and regulations at 29 CFR part 1955 provide 
procedures for the withdrawal of Federal approval should the Assistant 
Secretary find that the State has subsequently failed to comply with 
any provision or assurance contained in the plan. Additionally, the 
Assistant Secretary is required to initiate proceeding to revoke an 
18(e) determination and reinstate concurrent Federal authority under 
procedures set forth in 29 CFR 1902.47, et seq., if his evaluations 
show that the State has substantially failed to maintain a program 
which is at least as effective as operations under the Federal program, 
or if the State does not submit program change supplements to the 
Assistant Secretary as required by 29 CFR part 1953.

Explanation of Changes to 29 CFR Part 1952

    29 CFR part 1952 contains, for each State having an approved plan, 
a subpart generally describing the plan and setting forth the Federal 
approval status of the plan. 29 CFR 1902.43(a)(3) requires that notices 
of affirmative 18(e) determinations be accompanied by changes to part 
1952 reflecting the final approval decision. This notice makes changes 
to subpart I of part 1952 to reflect the final approval of the North 
Carolina plan.
    The table of contents for part 1952, subpart I, has been revised to 
reflect the following changes:
    The heading of section 1952.152, Completion of developmental steps, 
has been revised by adding the words ``and certification'' at the end.
    A new section 1952.154, Final approval determination, which 
formerly was reserved, has been added to reflect the determination 
granting final approval of the plan. This section contains a more 
accurate description of the current scope of the plan than the one 
contained in the initial approval decision.
    Section 1952.155, Level of Federal enforcement, has been revised to 
reflect the State's 18(e) status. This replaces the former description 
of the relationship of State and Federal enforcement under an 
Operational Status agreement voluntarily suspending Federal enforcement 
authority, which was entered into on February 20, 1975. (Federal 
enforcement jurisdiction was partially reinstituted on October 24, 
1991, and again fully suspended on March 7, 1995.) Federal concurrent 
enforcement authority has been relinquished as part of the present 
18(e) determination for North Carolina. Section 1952.155 describes the 
issues over which Federal authority has been terminated and the issues 
for which it has been retained in accordance with the discussion of the 
effects of the 18(e) determination set forth earlier in the present 
Federal Register notice.
    Section 1952.156, Where the plan may be inspected, has been revised 
to reflect a new room number N3700 for the Office of State Programs, 
Directorate of Federal-State Operations, Occupational Safety and Health 
Administration, U.S. Department of Labor, Washington, DC 20210; and a 
new street address 319 Chapanoke Road--Suite 105 for the North Carolina 
Department of Labor, Division of Occupational Safety and Health, 
Raleigh, North Carolina 27603-3432.

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.

    This document was prepared under the direction of Joseph A. Dear, 
Assistant Secretary of Labor for Occupational Safety and Health. It is 
issued under Section 18 of the OSH Act, (29 U.S.C. 667), 29 CFR Part 
1902, and Secretary of Labor's Order No. 1-90 (55 FR 9033)).

    Signed at Washington, DC, this 10th day of December 1996.
Joseph A. Dear,
Assistant Secretary.
    Part 1952 of 29 CFR is hereby amended as follows:

PART 1952--[AMENDED]

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

    Authority: Section 18 of the OSH Act, (29 U.S.C. 667), 29 CFR 
part 1902, and Secretary of Labor's Order No. 1-90 (55 FR 9033).

    2. The table of contents for part 1952, subpart I is revised to 
read as follows.

Subpart I--North Carolina

Sec.
1952.150  Description of the plan as initially approved.
1952.151  Developmental schedule.
1952.152  Completion of developmental steps and certification.
1952.153  Compliance staffing benchmarks.

[[Page 66601]]

1952.154  Final approval determination.
1952.155  Level of Federal enforcement.
1952.156  Where the plan may be inspected.
1952.157  Changes to approved plan.


Sec. 1952.152  [Amended]

    3. The heading of Sec. 1952.152 is revised to read ``Completion of 
developmental steps and certification.''
    4. A new Sec. 1952.154 is added, and Secs. 1952.155 and 1952.156 
are revised to read as follows:


Sec. 1952.154  Final approval determination.

    (a) In accordance with section 18(e) of the Act and procedures in 
29 CFR part 1902, and after determination that the State met the 
``fully effective'' compliance staffing benchmarks as revised in 1984 
and 1996 in response to a court order in AFL-CIO versus Marshall, 570 
F.2d 1030 (D.C. Cir. 1978), and was satisfactorily providing reports to 
OSHA through participation in the Federal-State Integrated Management 
Information System, the Assistant Secretary evaluated actual operations 
under the North Carolina State plan for a period of at least one year 
following certification of completion of developmental steps ( 41 FR 
43896). Based on the Biennial Evaluation Report covering the period of 
October 1, 1993 through September 30, 1995, an 18(e) Evaluation Report 
covering the period October 1, 1995 through June 30, 1996, and after 
opportunity for public comment, the Assistant Secretary determined that 
in operation the State of North Carolina's occupational safety and 
health program is at least as effective as the Federal program in 
providing safe and healthful employment and places of employment and 
meets the criteria for final State plan approval in section 18(e) of 
the Act and implementing regulations at 29 CFR part 1902. Accordingly, 
the North Carolina plan was granted final approval and concurrent 
Federal enforcement authority was relinquished under section 18(e) of 
the Act effective December 10, 1996.
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of 
employment in North Carolina. The plan does not cover Federal 
government employers and employees; private sector maritime activities; 
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.
    (c) North Carolina is required to maintain a State program which is 
at least as effective as operations under the Federal program; to 
submit plan supplements in accordance with 29 CFR part 1953; to 
allocate sufficient safety and health enforcement staff to meet the 
benchmarks for State staffing established by the U.S. Department of 
Labor, or any revisions to those benchmarks; and, to furnish such 
reports in such form as the Assistant Secretary may from time to time 
require.


Sec. 1952.155  Level of Federal enforcement.

    (a) As a result of the Assistant Secretary's determination granting 
final approval to the North Carolina State plan under section 18(e) of 
the Act, effective December 10, 1996, occupational safety and health 
standards which have been promulgated under section 6 of the Act do not 
apply with respect to issues covered under the North Carolina Plan. 
This determination also relinquishes concurrent Federal OSHA authority 
to issue citations for violations of such standards under section 
5(a)(2) and 9 of the Act; to conduct inspections and investigations 
under section 8 (except those necessary to conduct evaluation of the 
plan under section 18(f) and other inspections, investigations, or 
proceedings necessary to carry out Federal responsibilities not 
specifically preempted by section 18(e)); to conduct enforcement 
proceedings in contested cases under section 10; to institute 
proceedings to correct imminent dangers under section 13; and to 
propose civil penalties or initiate criminal proceedings for violations 
of the Federal OSH Act under section 17. The Assistant Secretary 
retains jurisdiction under the above provisions in any proceeding 
commenced under section 9 or 10 before the effective date of the 18(e) 
determination.
    (b)(1) In accordance with section 18(e), final approval 
relinquishes Federal OSHA authority only with regard to occupational 
safety and health issues covered by the North Carolina plan. OSHA 
retains full authority over issues which are not subject to State 
enforcement under the plan. Thus, Federal OSHA retains its authority 
relative to safety and health in private sector maritime activities and 
will continue to enforce all provisions of the Act, rules or orders, 
and all Federal standards, current or future, specifically directed to 
private sector maritime activities (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); 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. Federal jurisdiction is also retained with respect 
to Federal government employers and employees.
    (2) In addition, any hazard, industry, geographical area, operation 
or facility over which the State is unable to effectively exercise 
jurisdiction for reasons which OSHA determines are not related to the 
required performance or structure of the plan shall be deemed to be an 
issue not covered by the State plan which has received final approval, 
and shall be subject to Federal enforcement. Where enforcement 
jurisdiction is shared between Federal and State authorities for a 
particular area, project, or facility, in the interest of 
administrative practicability Federal jurisdiction may be assumed over 
the entire project or facility. In any of the aforementioned 
circumstances, Federal enforcement authority may be exercised after 
consultation with the State designated agency.
    (c) Federal authority under provisions of the Act not listed in 
section 18(e) is unaffected by final approval of the North Carolina 
State plan. Thus, for example, the Assistant Secretary retains his 
authority under section 11(c) of the Act with regard to complaints 
alleging discrimination against employees because of the exercise of 
any right afforded to the employee by the Act, although such complaints 
may be referred to the State for investigation. The Assistant Secretary 
also retains his authority under section 6 of the Act to promulgate, 
modify or revoke occupational safety and health standards which address 
the working conditions of all employees, including those in States 
which have received an affirmative 18(e) determination, although such 
standards may not be Federally applied. In the event that the State's 
18(e) status is subsequently withdrawn and Federal authority 
reinstated, all Federal standards, including any standards promulgated 
or modified during the 18(e) period, would be Federally enforceable in 
that State.
    (d) As required by section 18(f) of the Act, OSHA will continue to 
monitor the operations of the North Carolina State program to assure 
that the provisions of the State plan are substantially complied with 
and that the program remains at least as effective as the Federal 
program. Failure by the State to comply with its obligations may result 
in the revocation of the final approval determination under Section 
18(e),

[[Page 66602]]

resumption of Federal enforcement, and/or proceedings for withdrawal of 
plan approval.


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, Directorate of Federal-State Operations, 
Occupational Safety and Health Administration, U.S. Department of 
Labor, 200 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
North Carolina Department of Labor, Division of Occupational Safety 
and Health, 319 Chapanoke Road--Suite 105, Raleigh, North Carolina 
27603-3432.
[FR Doc. 96-32083 Filed 12-17-96; 8:45 am]
BILLING CODE 4510-26-P