[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]
BILLING CODE 4510-26-P