[Federal Register Volume 63, Number 192 (Monday, October 5, 1998)]
[Rules and Regulations]
[Pages 53280-53281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26525]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952


Arizona State Plan; Change in Level of Federal Enforcement: 
Concrete and Asphalt Batch Plants Connected to Mines

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Final rule.

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SUMMARY: This document gives notice of the resumption of Federal 
enforcement responsibility in the State of Arizona over private sector 
employment at concrete and asphalt batch plants which are physically 
connected to a mine or so interdependent with the mine as to form one 
integral enterprise.
    OSHA is hereby amending its regulations on approved plans to 
reflect this change to the level of Federal enforcement authority in 
Arizona.

EFFECTIVE DATE: October 5, 1998.

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).
    The Arizona State plan was initially approved on October 29, 1974 
(39 FR 39037). On June 20, 1985, OSHA announced the final approval of 
the Arizona State plan pursuant to section 18(e) and amended Subpart CC 
of 29 CFR Part 1952 to reflect the Assistant Secretary's decision (50 
FR 25571). As a result, Federal OSHA relinquished its authority with 
regard to occupational safety and health issues covered by the Arizona 
plan. Federal OSHA retained its authority over safety and health in 
private sector maritime employment, in copper smelters, within Indian 
reservations and with regard to Federal government employers and 
employees.
    29 CFR 1952.355, which codifies OSHA's final approval decision, 
provides that any hazard, industry, geographical area, operation or 
facility over which the State is unable to effectively exercise 
jurisdiction for reasons not related to the required performance or 
structure of the plan shall be deemed to be an issue not covered by the 
plan and shall be subject to Federal enforcement.
    The Industrial Commission of Arizona, the State plan agency 
responsible for occupational safety and health enforcement, is 
precluded by law from covering working conditions with respect to which 
any State agency acting under Title 27, Chapter 3, of Arizona Revised 
Statutes, exercises statutory authority to prescribe or enforce 
standards or regulations affecting occupational safety or health 
(Arizona Revised Statutes, section 23-402). Under Arizona Revised 
Statutes section 27-301(8), the State Mine Inspector has jurisdiction 
over concrete and asphalt plants that are ``physically connected to the 
mine or so interdependent with the

[[Page 53281]]

mine as to form one integral enterprise.'' Therefore, such facilities 
are excluded from coverage under the State plan.
    Section 4(b)(1) of the Federal Act provides that ``nothing in this 
Act shall apply to working conditions with respect to which other 
Federal agencies * * * exercise statutory authority to prescribe or 
enforce standards or regulations affecting occupational safety or 
health'' but does not include language precluding coverage of concrete 
or asphalt plants comparable to that in the Arizona statute. OSHA 
coverage of such facilities is specifically provided by a Memorandum of 
Understanding Between OSHA and the Mine Safety and Health 
Administration, which was signed on March 29, 1979 (see 44 FR 22,827).

B. Location of Supplement for Inspection and Copying

    A copy of the legislation referenced in this notice as well as 
information on the Arizona plan is available during normal business 
hours at the following locations: Office of the Regional Administrator, 
U.S. Department of Labor--OSHA, 71 Stevenson Street, Suite 415, San 
Francisco, CA 94105; Industrial Commission of Arizona, 800 W. 
Washington, Phoenix, AZ 85007; 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 Web Page 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. Arizona's Final 
Approval determination issued after an opportunity for public comment 
in 1985, specifically provides that Federal standards and enforcement 
will apply to safety or health issues the State is unable to cover 
under its State plan, and this notice implements that provision. State 
and Federal OSHA requirements applicable to employment in concrete and 
asphalt batch plants are identical. Accordingly, OSHA finds that 
further public participation is not necessary.

D. Decision

    To assure worker protection under the OSH Act, Federal OSHA will 
assume coverage over concrete and asphalt batch plants that are 
physically connected to or interdependent with mines in Arizona. OSHA 
is hereby amending 29 CFR part 1952, Subpart CC, to reflect this change 
in the level of Federal enforcement.

List of Subjects in 29 CFR Part 1952

    Intergovernmental relations, Law enforcement, Occupational safety 
and health.

    This document was prepared under the direction of Charles Jeffress, 
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. 6-96 (62 FR 111).

    Signed at Washington, D.C. this 21 day of August 1998.
Charles N. Jeffress,
Assistant Secretary of Labor.

    For the reasons set out in the preamble 29 CFR part 1952, Subpart 
CC (Arizona) 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 Stat. 1608 (29 U.S.C. 667); 29 CFR part 1902, 
Secretary of Labor's Order No. 6-96 (62 FR 111).

Subpart CC--Arizona

    2. Section 1952.354 is amended by revising paragraph (b) to read as 
follows:


Sec. 1952.354  Final approval determination.

* * * * *
    (b) The plan which has received final approval covers all 
activities of employers and all places of employment in Arizona except 
for private sector maritime employment, copper smelters, concrete and 
asphalt batch plants that are physically connected to a mine or so 
interdependent with a mine as to form one integral enterprise, and 
Indian reservations.
* * * * *
    3. Section 1952.355 is amended by revising the first four sentences 
of paragraph (b) to read as follows:


Sec. 1952.355  Level of Federal enforcement.

* * * * *
    (b) In accordance with section 18(e), final approval relinquishes 
Federal OSHA authority only with regard to occupational safety and 
health issues covered by the Arizona 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 maritime employment (29 CFR 
part 1915, shipyard employment; part 1917, marine terminals; part 1918, 
longshoring; part 1919, gear certification) as well as provisions of 
general industry standards (29 CFR part 1910) appropriate to hazards 
found in these employments. Federal jurisdiction is also retained with 
respect to Federal government employers and employees, in copper 
smelters, in concrete and asphalt batch plants which are physically 
connected to a mine or so interdependent with the mine as to form one 
integral enterprise, and within Indian reservations. * * *
* * * * *
[FR Doc. 98-26525 Filed 10-2-98; 8:45 am]
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