[Federal Register Volume 64, Number 220 (Tuesday, November 16, 1999)]
[Proposed Rules]
[Pages 62138-62144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29723]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1952
[Docket No. T-033]
Nevada 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 Nevada
State occupational safety and health plan, as administered by the
Nevada Division of Industrial Relations, 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 Nevada plan. This document 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 December 16, 1999.
ADDRESSES: Written comments or requests for a hearing should be
submitted, in duplicate, to the Docket Officer, Docket No. T-033, U.S.
Department of Labor, Room N2625 200 Constitution Avenue N.W.,
Washington. DC 20210, (202) 693-2350. Comments limited to 10 pages or
fewer may also be transmitted by FAX to: (202) 693-1648, provided that
the original and one copy of the comment are sent to the Docket Office
immediately thereafter. Electronic comments may be submitted on the
Internet at: http://www.osha-slc.gov/e-comments/e-comments-nevada.html
.
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) 693-1999.
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 and whether final approval should
be granted.
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 62139]]
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 Nevada Plan and of Its Compliance Staffing
Benchmarks
Nevada Plan
On December 12, 1972, Nevada 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 March 16, 1973 a notice was published in the
Federal Register (38 FR 7157) 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). No other written comments were received, and
no request for an informal hearing was received. In response to
concerns raised by the AFL-CIO, as well as issues noted by OSHA, the
State made clarifications and revisions to its plan, particularly in
the areas of employee rights. Thereafter, on January 4, 1974, the
Assistant Secretary published a Federal Register notice (39 FR 1008)
granting initial approval of the Nevada plan as a developmental plan
and adopting Subpart W of Part 1952 containing the decision and
describing the plan.
The Nevada Division of Industrial Relations in the State Department
of Business and Industry is designated as the agency having
responsibility for administering the plan throughout the State under
the authority of the Nevada Occupational Safety and Health Act (Nevada
Revised Statutes, Chapter 618). The plan covers all private sector
employers with the exception of private employers on Indian land,
Federal employers and, to the extent that any exist in Nevada,
employers engaged in longshoring and maritime operations upon any
navigable waters in the State. Such employers remain subject to Federal
OSHA jurisdiction. Federal OSHA also retains authority for coverage of
the United States Postal Service (USPS), including USPS employees,
contract employees, and contractor-operated facilities engaged in USPS
mail operations. The State's coverage extends to all State and local
government employers. The plan provides for the automatic adoption by
Nevada of standards which are identical to Federal occupational safety
and health standards, on the effective date of the Federal standard,
unless the State adopts an alternate standard which is as effective as
the Federal standard. 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: inspection and citation procedures; 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. Notices of contest of citations and penalties are
heard by the Occupational Safety and Health Review Board, an
independent administrative board. Decisions of the Review Board may be
appealed to the appropriate State District Court.
The Assistant Secretary's initial approval of the Nevada
developmental plan, a general description of the plan, a schedule of
required developmental steps, and a provision for the exercise of
discretionary concurrent Federal enforcement during the period of
initial approval were codified in the Code of Federal Regulations (29
CFR Part 1952, Subpart W, 39 FR 1008, January 4, 1974).
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 January 1, 1977. These
``developmental steps'' included enactment of amendments to the Nevada
Occupational Safety and Health Act, promulgation of State occupational
safety and health standards 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:
regulations for inspections, citations and proposed penalties;
recordkeeping and reporting regulations; variance regulations;
compliance procedures; and, rules of procedure for the Nevada
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 Nevada Subpart of 29 CFR Part 1952
was amended to reflect each of these approval determinations (see 29
CFR 1952.292).
On August 13, 1981, in accordance with procedures at 29 CFR 1902.34
and 1902.35, the Assistant Secretary certified that Nevada had
satisfactorily completed all developmental steps (46 FR 42844; August
25, 1981). In certifying the plan, the Assistant Secretary found the
structural features of the program--the statutes, standards,
regulations, and written procedures for administering the Nevada 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 December 9, 1981, OSHA and the State of Nevada entered into an
Operational Status Agreement which suspended the exercise of Federal
concurrent enforcement authority in Nevada in all except specifically
identified areas. (See 47 FR 25323).
The State has submitted plan supplements describing changes to its
program since plan approval. OSHA's approval of major plan changes has
been announced in Federal Register notices published periodically.
Approval of more recent change submissions will be published in the
Federal Register as appropriate.
Nevada 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
[[Page 62140]]
benchmarks for all approved State plans, including benchmarks of 7
safety and 9 health compliance officers for Nevada. The 1978 Court
Order noted that new information might warrant an adjustment by OSHA of
the fully effective benchmarks. In July 1986, Nevada, in conjunction
with OSHA, completed a reassessment of the levels resulting in proposed
revised compliance staffing benchmarks of 11 safety and 5 health
compliance officers. After opportunity for public comment and service
on the AFL-CIO, the Assistant Secretary approved these revised staffing
requirements on September 11, 1987 (52 FR 34381).
Determination of Eligibility
This Federal Register notice announces the eligibility of the
Nevada plan for final approval determination under section 18(e). (29
CFR 1902.39(c) requires that notice of this determination of
eligibility be published in order to seek public input prior to the
Assistant Secretary's decision.) The determination of eligibility is
based upon OSHA's findings that:
(1) The Nevada plan has been monitored in actual operation for at
least one year following certification. The results of OSHA's
monitoring of the plan since the commencement of plan operations are
contained in written evaluation reports which are made available to the
State and to the public. The results of OSHA's most recent post-
certification monitoring are set forth in a comprehensive evaluation
report covering the period of July 1, 1995 through March 31, 1999, with
special attention to the period from October 1, 1997 to March 31, 1999,
which has been made part of the record of the present proceedings and
is available in Docket T-033, together with all previous evaluation
reports since 1981.
(2) The plan meets the State's revised benchmarks for enforcement
staffing. On September 11, 1987, 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 11 safety and 5 health
compliance officers for Nevada based on an assessment of State-specific
characteristics and historical experiences. Nevada has allocated
positions well in excess of these numbers, as evidenced by the FY 1999
Application for Federal Assistance in which the State has committed
itself to funding the State share of salaries for 22 safety and 9
health compliance officers. The FY 1999 grant application has been made
part of the record in the present proceeding.
Nevada provides State funds for its program well in excess of the
50% match of Federal funding required. The additional funds have
allowed the State to expand staffing and activities in both its
enforcement and voluntary compliance programs.
(3) Nevada participates and has assured its continued participation
in the Integrated Management Information System (IMIS) developed by
OSHA.
Like other States with approved plans, Nevada has developed a five-
year Strategic Plan to guide its efforts to improve occupational safety
and health in the State. The State's strategic goals are similar to
those of Federal OSHA (improve workplace safety and health, change
workplace culture, and assure public confidence). The Strategic Plan
and the FY 1999 Annual Performance Plan are available in Docket T-033.
Issues for Determination in the 18(e) Proceedings
The Nevada 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 in a manner at least as effective
as the Federal program. 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 Nevada program as described in the most recent evaluation report,
considered in light of these regulatory criteria and the criteria in
section 18(c) of the Act, indicate that the regulatory indices and
criteria are being met. The Assistant Secretary accordingly has made an
initial determination that the Nevada 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 Nevada. 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 Nevada plan
provides for the automatic adoption of standards which are identical to
Federal standards. A new standard becomes effective in Nevada on the
effective date of the Federal standard. The State may adopt alternative
standards and has adopted some standards which do not have Federal
counterparts, such as standards concerning ammonium perchlorate and
tower cranes. Nevada also has regulations requiring pre-construction
safety conferences with the Division of Industrial Relations for
certain types of construction projects.
The State also requires employers with more than 10 employees to
implement safety and health programs, including a safety and health
committee for employers with more than 25 employees. For issues where
OSHA is considering issuing a rule, as in the case of safety and health
programs, the agency does not take action to decide whether the State
plan requirements are at least as effective until the Federal action is
complete. Nor can OSHA review this requirement for compliance with the
National Labor Relations Act (NLRA), which is independently
administered by the National Labor Relations Board. The Board's General
Counsel has noted in a written opinion that committee requirements
under State law do not amount to a per se violation of the NLRA;
however, the General Counsel has pointed out that employers must comply
with State laws in a manner which does not constitute an unfair labor
practice under the NLRA. Nevada's standards adoption process continued
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, page 16]
Where a State adopts Federal standards, the State's interpretation
and application of such standards must be consistent 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 the effectiveness of
individual standards, 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 Nevada plan provides
for adoption of standards identical to Federal standards. Nevada also
generally adopts Federal interpretations
[[Page 62141]]
and thus assures at least as effective worker protection.
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 Nevada.
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). Nevada had five
requests for permanent variances during the 18(e) evaluation period.
Two requests were approved, two were denied, and one was canceled. The
granted variances were processed in accordance with State procedures.
[18(e) Evaluation Report, p. 16.] 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 Nevada 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.16].
(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)(l), and 1902.4(c).
Nevada uses a list of high hazard industries provided by OSHA to
schedule programmed general industry inspections and uses Dodge Reports
and local knowledge to schedule construction inspections. The State's
strategic plan is focusing on three industries with high rates of
injuries and illnesses: manufacturing, construction and hotel/casinos.
During the period from October 1997 though March 1999, 53% of the
State's safety inspections and 11% of health inspections were
programmed. During this period the 68% of programmed safety inspections
and 71% of programmed health inspections uncovered violations. This
exceeds the percentage of Federal programmed inspections with
violations and indicates that the State's targeting system is
effective. [18(e) Evaluation Report, p. 7]
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). Section 618.325 of the Nevada
Occupational Safety and Health Act provides for an inspector's right of
entry during regular hours to any place of employment. During the
evaluation period, there were 14 denials of entry. Entry was achieved
in 11 of these cases. This exceeds the Federal experience during the
period. [18(e) Evaluation Report, p. 9]
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 Nevada occupational safety and health
compliance program are set out in the Nevada Operations Manual, which
is patterned after Federal compliance documents, and the State follows
inspection procedures, including documentation procedures, which are
similar to Federal procedures. The Evaluation Report notes overall
adherence by Nevada to these procedures.
Identifying and Citing Hazards: Nevada cited an average of 2.7
violations per safety inspection and 3.3 violations per health
inspection. In addition to issuing citations, the State issues
``Notices of Violation'' for other-than-serious violations that do not
carry a penalty, when the employer agrees to abate the violation and
not to contest. During the evaluation period, 27% of both safety and
health violations were cited as serious. The percentage of serious
safety and health violations was lower than the comparable Federal
percentages. While OSHA has disagreed with the State on the
classification of some violations in the past, no systemic problems
relating to violation classification have been found. 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, pp.10-12]
Advance Notice: State plans must include a prohibition on advance
notice of inspections, and exceptions must be no broader than those
allowed by Federal OSHA procedure. See Sec. 1902.3(f). Nevada has
adopted approved procedures for advance notice similar to the Federal
procedures. During the evaluation period, Nevada did not grant any
advance notice of inspections.
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). Nevada has procedures similar to Federal OSHA for
processing and responding to complaints. The data indicate that during
the evaluation period the State was timely in responding to employee
complaints, responding to 92% of serious safety and health complaints
within the prescribed time frame of 30 days. During the period from
October 1997 through March 1999, 25% of State inspections were in
response to employee complaints. In 89.8% of cases during the period,
complainants were informed of inspection results within 20 working days
of citation issuance or, where no citations were issued, within 30
working days of the closing conference. The State also responds to non-
formal complaints by letter and utilizes a phone/fax system to expedite
response to non-serious complaints. [18(e) Evaluation Report, p. 10]
The State also has procedures similar to those of Federal OSHA which
require that an opportunity be provided for employee participation be
provided, either through representation on the walkaround or the
conduct of interviews with a reasonable number of employees. No
problems have been noted concerning employee participation in Nevada
inspections.
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). Section 618.445 of the
Nevada Occupational Safety and Health Act provides for discrimination
protection equivalent to that provided by Federal OSHA. A total of 136
investigations of complaints alleging discrimination were completed
during the evaluation period, of which 14 were found to be meritorious.
The State takes appropriate action in the courts on merit cases where
the employer does not voluntarily comply
[[Page 62142]]
with the State's proposed remedy. During the evaluation period, Nevada
experienced difficulty in meeting the 90-day time limit for completion
of discrimination investigations. The State is taking action to ensure
timely processing of complaints by training additional discrimination
investigators, and one of its strategic goals is the completion of 75%
of discrimination cases within 90 days. [18(e) Evaluation Report, p.
15]
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 40 days for safety and 53 days for
health. Both of the lapse times are comparable to Federal OSHA's time
lapse. [18 (e) Evaluation Report, p. 12]
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 factors
comparable to those required in the Federal program in calculating
penalties. See Secs. 1902.37(b)(12), 1902.3(d), and 1902.4(c) (x) and
(xi). Nevada's procedures for penalty calculation are similar to the
Federal procedures. During the evaluation period, Nevada proposed
higher penalties for serious violations than Federal OSHA. The average
penalty for serious safety violations was $1844 and the average serious
health penalty was $1336. [18(e) Evaluation Report, p. 12]
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). Eighty-eight percent (88%) of serious safety violations had
abatement periods of less than 30 days and 97% of serious health
violations had abatement periods of less than 60 days. This compares
favorably to Federal performance. The Notice of Violation policy has
been successful in assuring prompt abatement of other-than-serious
violations without litigation. [18(e) Evaluation Report, p. 12]
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). Nevada has taken action when appropriate to appeal adverse
decisions. The Nevada section 18(e) Evaluation Report noted that a case
involving egregious citations was appealed to the Nevada Supreme Court
by the State. The case was settled before hearing. [18(e) Evaluation
Report, p. 7]
(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 Nevada plan provides for 22 safety compliance officers and 9
industrial hygienists as set forth in the Nevada FY 1999 grant. This
staffing level exceeds the approved, revised ``fully effective''
benchmarks for Nevada for health and safety staffing, as discussed
elsewhere in this notice. At the close of the evaluation period the
State had 20 safety and 9 health compliance officers positions filled.
[18(e) Evaluation Report, p. 21] The State maintains offices in Carson
City, Reno, Elko and Las Vegas.
Since 1991, the State has consistently provided State matching
funds in excess of Federal funding. In Fiscal Year 1999, the State
provided 76% of the total budget for its occupational safety and health
program. State program funding in Fiscal Year 1999 is $4,917,275 total
($1,163,000 Federal, $3,754,275 State). [18(e) Evaluation Report, pp.
1, 22]
Nevada utilizes the OSHA Training Institute for most of its staff
training. The State also conducts internal training through staff
meetings regarding any new issues or standards. In addition,
enforcement and consultation staffs conduct joint regional meetings to
discuss standards and other issues to ensure that enforcement and
consultation have the same understanding of the requirements of the
standards.
(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 Nevada plan provides a program
in the public sector which is similar to that in the private sector,
including inspections, citations and proposal of penalties for serious
violations. During this evaluation period, the State conducted 4.4% of
its total inspections in the public sector. The results of these
inspections were comparable to those in the private sector. [18(e)
Evaluation Report, pp. 14-15]
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). Nevada's lost
workday case rate for private industry declined from 4.2 in 1994 to 3.3
in 1997. The lost workday case rate for construction decreased from 7.5
to 5.6, while there was substantial growth in the construction industry
particularly in the southern part of the State. The rate for
manufacturing increased slightly from 5.0 to 5.2. The rate for State
and local government decreased from 3.6 to 3.4. [18(e) Evaluation
Report, p. 18] Nevada also participates in the OSHA Data Initiative for
gathering employer-specific injury and illness rates.
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). Nevada employer recordkeeping requirements
are identical to those of Federal OSHA, and the State participates in
the BLS Annual Survey of Occupational Illness and Injuries and the OSHA
Data Initiative. 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 and submits other information and reports as
required.
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. The Nevada consultation program, which until July 1, 1999
operated its private sector component under the State plan rather than
OSHA's section 21(d) consultation program, includes 14 consultants and
4 trainers. The State provides consultation services to both the
private and public sectors. During the evaluation period, Nevada
[[Page 62143]]
conducted 1781 consultation visits, primarily in smaller high hazard
private sector establishments. From Fiscal Year 1996 through Fiscal
Year 1999, the State conducted 739 safety and health classes, reaching
a total of 6,737 employers and 8,551 employees. Training covered such
issues as developing safety and health programs, lockout/tagout, fall
protection, hazard communication and bloodborne pathogens. In addition,
the Safety Consultation and Training Section has carried out
substantial promotion and outreach efforts through a multi-media
campaign, including television and newspaper public service
announcements, funded by the State.
Effect of Section 18(e) Determination
If the Assistant Secretary, after review of the written comments
received and the results of any informal hearing if requested and held,
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 Nevada plan, as provided
by Section 18(e) of the Act and 29 CFR 1902.42(c). Nevada has excluded
private sector maritime employment and private employers on Indian land
from its plan. In addition, the plan does not have jurisdiction over
Federal agencies. Thus, Federal coverage of these areas would be
unaffected by an affirmative section 18(e) determination. Federal OSHA
will also retain authority for coverage of the United States Postal
Service (USPS), including USPS employees, contract employees, and
contractor-operated facilities engaged in USPS mail operations and all
Federal employers in Nevada.
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 standards and enforcement authority is withdrawn and
provide notice 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. The notice would 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 W of 29 CFR Part
1952, which codifies OSHA decisions regarding approval of the Nevada
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 Nevada 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-033, 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, 71
Stevenson Street, Suite 420, San Francisco, California 94105; and
Nevada Division of Industrial Relations, 400 West King Street, Carson
City, Nevada 89703. 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 (as amended through June
29, 1999), which includes a plan narrative, the State legislation,
regulations and procedures, and an organizational chart for State
staffing; the State's FY 1999 Federal grant; and the July 1, 1995
through March 31, 1999 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. As part of the Assistant Secretary's decision-making
process, consideration must be given to the application and
implementation by Nevada 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 Nevada's State plan, are available to
the Assistant Secretary during this administrative proceeding.
Interested persons are invited to submit written data, views, and
comments with respect to this proposed section 18(e) determination.
These comments must be received on or before December 16, 1999, and
submitted in duplicate to the Docket Officer, Docket No. T-033, U.S.
Department of Labor, Room N-2625, 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. Comments limited to 10 pages or fewer may also be transmitted by
FAX to: (202) 693-1648, provided that the original and one copy of the
comment are sent to the Docket Office immediately thereafter.
Electronic comments may be submitted on the Internet at: http://
www.osha-slc.gov/e-comments/e-comments-nevada.html. The State of Nevada
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 December 16, 1999, and
should be submitted in duplicate to the Docket Officer, Docket T-033,
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 Register. All
written and oral
[[Page 62144]]
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.
Federalism
Executive Order 13132, ``Federalism,'' emphasizes consultation
between Federal agencies and the States and establishes specific review
procedures the Federal government must follow as it carries out
policies which affect State or local governments. This Executive Order
does not take effect until November 2, 1999, but will be in effect when
OSHA renders its decision on final approval of the Nevada state plan.
OSHA has included in the Background section of today's request for
public comments a detailed explanation of the relationship between
Federal OSHA and the State plan States under the Occupational Safety
and Health Act. Although it appears that the specific consultation
procedures provided in section 6 of Ex.Ord. 13132 are not mandatory for
final approval decisions under the OSH Act, which neither impose a
burden upon the State nor involve preemption of any State law, OSHA has
nonetheless consulted extensively with Nevada throughout the period of
18(e) evaluation. OSHA has reviewed the Nevada final approval decision
proposed today, and believes it is consistent with the principles and
criteria set forth in the Executive Order.
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 Nevada under any new
or different requirements, nor would any additional burden be placed
upon the State government beyond the responsibilities already assumed
as part of the approved plan.
List of Subjects in 29 CFR Part 1952
Intergovernmental relations, Law enforcement, Occupational safety
and health.
(Sec. 18, 84 Stat. 1608 (29 U.S.C. 667): 29 CFR Part 1902, Secretary
of Labor's Order No. 9-83 (43 FR 35736)).
Signed at Washington, DC, this 5th day of November, 1999.
Charles N. Jeffress,
Assistant Secretary of Labor.
[FR Doc. 99-29723 Filed 11-15-99; 8:45 am]
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