[Federal Register Volume 62, Number 185 (Wednesday, September 24, 1997)]
[Rules and Regulations]
[Pages 49910-49912]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25306]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952


New Mexico State Plan; Approval of Plan Supplement; Change in 
Level of Federal Enforcement: Military Facilities and Indian 
Reservations

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Final rule.

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SUMMARY: This document gives notice of the approval of a State-
initiated plan change and resumption of Federal enforcement 
responsibility in the State of New Mexico over private sector 
employment on military facilities and bases, and, to the extent 
permitted by applicable law, over tribal or private sector employment 
within any Indian reservation or lands under the control of a tribal 
government.
    OSHA is hereby amending its regulations on approved plans to 
reflect this change to the level of Federal enforcement authority in 
New Mexico.

EFFECTIVE DATE: September 24, 1997.

FOR FURTHER INFORMATION CONTACT: Bonnie Friedman, Director, Office of 
Information and Consumer Affairs, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room, N-3637, 200 
Constitution Avenue, N.W., Washington, D.C. 20210, (202) 219-8148.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 18 of the Occupational Safety and Health Act of 1970 (The 
Act), 29 U.S.C. 667, provides that States which wish to assume 
responsibility for developing and enforcing their own occupational 
safety and health standards, may do so by submitting, and obtaining 
Federal approval of, a State plan. State plan approval occurs in stages 
which include initial approval under section 18(c) of the Act and, 
ultimately, final approval under section 18(e). In the interim, between 
initial approval and final approval, there is a period of concurrent 
Federal/State jurisdiction within a State operating an approved plan. 
See 29 CFR 1954.3 for guidelines and procedures.
    The New Mexico Occupational Health and Safety State plan was 
approved under section 18(c) of the Act of 1970 and part 1902 of this 
chapter on December 10, 1975 (40 FR 57455), and certified by OSHA as 
having completed all of its developmental steps on December 4, 1984 (49 
FR 48915). On December 5, 1981, OSHA and the State of New Mexico 
entered into an Operational Status Agreement which suspended the 
exercise of Federal concurrent enforcement authority in all except 
specifically identified areas. The pertinent provisions concerning the 
level of Federal enforcement in the State are codified at 29 CFR 
1952.365.
    By letter dated January 3, 1997, from Sam A. Rogers, Bureau Chief, 
Occupational Health and Safety Bureau, New Mexico Environment 
Department, to OSHA Regional Administrator Emzell Blanton, Jr., the 
State of New Mexico has requested that Federal OSHA to resume 
enforcement authority over private sector employment on military 
facilities and bases and, over tribal or private sector employment 
within any Indian reservation or lands under the control of a tribal 
government. After extensive research which identified numerous problems 
with regard to the exercise of New Mexico occupational health and 
safety enforcement authority, the State of New Mexico, for 
administrative convenience, will exclude coverage of all private sector 
employment on Federal military lands and facilities, including but not 
limited to Kirkland Air Force Base, Fort Bliss Military Reservation, 
White Sands Missile Range Military Reservation, Holloman Air Force 
Base, Cannon Air Force Base, Fort Wingate Military Reservation, Fort 
Bayard Veterans' Hospital, Albuquerque Veterans' Hospital, Santa Fe 
National Cemetery, etc., from under its State plan. In addition, since 
all of New Mexico's Indian tribes have treaties with the Federal 
Government and the applicability of State laws and jurisdiction on 
tribal reservations and other Indian owned land have been questionable 
at best, New Mexico will also exclude tribal or private sector 
employment within any Indian reservation or lands under the control of 
a tribal government from coverage under its State plan.

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B. Location of Supplement for Inspection and Copying

    A copy of the plan supplement, along with the approved plan, may be 
inspected and copied during normal business hours at the following 
locations: Office of the Regional Administrator, U.S. Department of 
Labor-OSHA, 525 Griffin Street, Room 602, Dallas, Texas 75202; Office 
of the Secretary, Environment Department, 1190 St. Francis Drive, Room 
2200-North, Santa Fe, New Mexico 87503; and the Office of State 
Programs, 200 Constitution Avenue, N.W., Room N3700, Washington, D.C. 
20210. For electronic copies of this notice, contact OSHA's WebPage at 
http://www.osha.gov/.

C. Public Participation

    Under 29 CFR 1953.2(c), the Assistant Secretary may prescribe 
alternative procedures to expedite the review process or for other good 
cause which may be consistent with applicable laws. To assure worker 
protection under the OSH Act, the Assistant Secretary finds that New 
Mexico's State-initiated plan change requesting that Federal OSHA 
resume enforcement authority in New Mexico over private sector 
employment on military facilities and bases, and, to the extent 
permitted by applicable law, over tribal or private sector employment 
within any Indian reservation or lands under the control of a tribal 
government, is consistent with Federal requirements, and with 
commitments contained in the plan and previously made available for 
public comment. Good cause is therefore found for approval of this plan 
supplement, and further public participation is unnecessary.

D. Decision

    After careful consideration, OSHA is approving under Part 1953 of 
this chapter, the New Mexico State-initiated plan change concerning the 
level of Federal enforcement authority, as described in the 1981 New 
Mexico Operational Status Agreement. Concurrently, OSHA is announcing 
its resumption of Federal enforcement authority in New Mexico over the 
coverage of private sector employment on Federal military facilities 
and bases, and, to the extent permitted by applicable law, over tribal 
or private sector employment within any Indian reservation or lands 
under the control of a tribal government. OSHA is hereby amending 29 
CFR part 1952, Subpart DD, to reflect this change in the level of 
Federal enforcement and to revise the format.

List of Subjects in 29 CFR Part 1952

    Intergovernmental relations, Law enforcement, Occupational safety 
and health.

    This document was prepared under the direction of Greg Watchman, 
Acting 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 18th day of September 1997.
Greg Watchman,
Acting Assistant Secretary of Labor.

    For the reasons set out in the preamble 29 CFR part 1952, Subpart 
DD (New Mexico) is hereby amended as set forth below:

PART 1952--APPROVED STATE PLANS FOR ENFORCEMENT OF STATE STANDARDS

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

    Authority: Sec. 18, 84, Stat. 1608 (29 U.S.C. 667); 29 CFR part 
1902, Secretary of Labor's Order No. 1-90 (55 FR 9033).

Subpart DD--New Mexico

    2. Section 1952.365 is revised to read as follows:


Sec. 1952.365  Level of Federal enforcement.

    (a) Pursuant to Secs. 1902.20(b)(1)(iii) and 1954.3 of this 
chapter, under which an operational status agreement has been entered 
into between OSHA and New Mexico, effective October 5, 1981, and based 
on a determination that New Mexico is operational in issues covered by 
the New Mexico occupational health and safety plan, discretionary 
Federal enforcement authority under section 18(e) of the Act (29 U.S.C. 
667(e)) will not be initiated with regard to Federal occupational 
safety and health standards in issues covered under 29 CFR parts 1910, 
1926 and 1928 except as provided in this section. The U.S. Department 
of Labor will continue to exercise authority, among other things, with 
regard to:
    (1) Complaints filed with the U.S. Department of Labor alleging 
discrimination under section 11(c) of the Act (29 U.S.C. 660(c));
    (2) Enforcement with respect to private sector maritime employment 
including 29 CFR parts 1915, 1917, 1918, 1919 (shipyard employment; 
marine terminals; longshoring and gear certification), and general 
industry and construction standards (29 CFR parts 1910 and 1926) 
appropriate to hazards found in these employments, which issues have 
been specifically excluded from coverage under the State plan;
    (3) Enforcement in situations where the State is refused and is 
unable to obtain a warrant or enforce its right of entry;
    (4) Enforcement of new Federal standards until the State adopts a 
comparable standard;
    (5) Enforcement of unique and complex standards as determined by 
the Assistant Secretary;
    (6) Enforcement in situations when the State is temporarily unable 
to exercise its enforcement authority fully or effectively;
    (7) Enforcement of occupational safety and health standards at all 
Federal and private sector establishments on military facilities and 
bases, including but not limited to Kirkland Air Force Base, Fort Bliss 
Military Reservation, White Sands Missile Range Military Reservation, 
Holloman Air Force Base, Cannon Air Force Base, Fort Wingate Military 
Reservation , Fort Bayard Veterans' Hospital, Albuquerque Veterans' 
Hospital, Santa Fe National Cemetery;
    (8) Enforcement of occuaptional safety and health standards, to the 
extent permitted by applicable law, over tribal or private sector 
employment within any Indian reservation and lands under the control of 
a tribal government; and
    (9) Investigations and inspections for the purpose of the 
evaluation of the New Mexico plan under sections 18 (e) and (f) of the 
Act (29 U.S.C. 667 (e) and (f)).
    (b) The Regional Administrator for Occupational Safety and Health 
will make a prompt recommendation for the resumption of the exercise of 
Federal enforcement authority under section 18(e) of the Act (29 U.S.C. 
667(e)) whenever, and to the degree, necessary to assure occupational 
safety and health protection to employees in New Mexico.
    3. Section 1952.367 is amended by adding paragraph (b) to read as 
follows:


Sec. 1952.367  Changes to approved plans.

* * * * *
    (b) In accordance with Subpart E of part 1953 of this chapter, New 
Mexico's State plan amendment, dated January 3, 1997, excluding 
coverage of all private sector employment on Federal military 
facilities and bases (see Sec. 1952.365), and, to the extent permitted 
by applicable law, over tribal or private sector employment within any 
Indian reservation and lands under the control of a tribal government, 
from its State plan was approved by the Acting

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Assistant Secretary on September 24, 1997.

[FR Doc. 97-25306 Filed 9-23-97; 8:45 am]
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