[Federal Register Volume 65, Number 75 (Tuesday, April 18, 2000)]
[Rules and Regulations]
[Pages 20735-20743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-9297]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

[Docket No. T-033]


Nevada State Plan; Final Approval Determination

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

ACTION: Final State plan approval--Nevada.

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SUMMARY: This document amends OSHA's regulations to reflect the 
Assistant Secretary's decision granting final approval to the Nevada 
State plan. As a result of this affirmative determination under section 
18(e) of the Occupational Safety and Health Act of 1970, Federal OSHA's 
standards and enforcement authority no longer apply to occupational 
safety and health issues covered by the Nevada plan, and authority for 
Federal concurrent jurisdiction is relinquished. Federal enforcement 
jurisdiction is retained over any private sector maritime employment, 
private sector employers on Indian land, and any contractors or 
subcontractors on any Federal establishment where the land is exclusive 
Federal jurisdiction. Federal jurisdiction remains in effect with 
respect to Federal government employers and employees. Federal OSHA 
will also retain authority for coverage of the United States Postal

[[Page 20736]]

Service (USPS), including USPS employees, contract employees, and 
contractor-operated facilities engaged in USPS mail operations.

EFFECTIVE DATE: April 18, 2000.

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:

Introduction

    Section 18 of the Occupational Safety and Health Act of 1970, 29 
U.S.C. 651, et seq , (the ``Act'') provides that States which desire to 
assume responsibility for the development and enforcement of 
occupational safety and health standards may do so by submitting, and 
obtaining Federal approval of, a State plan. Procedures for State Plan 
submission and approval are set forth in regulations at 29 CFR Part 
1902. If the Assistant Secretary, applying the criteria set forth in 
section 18(c) of the Act and 29 CFR 1902.3 and .4, finds that the plan 
provides or will provide for State standards and enforcement which are 
``at least as effective'' as Federal standards and enforcement, 
``initial approval'' is granted. A State may commence operations under 
its plan after this determination is made, but the Assistant Secretary 
retains discretionary Federal enforcement authority during the initial 
approval period as provided by section 18(e) of the Act. A State plan 
may receive initial approval even though, upon submission, it does not 
fully meet the criteria set forth in Secs. 1902.3 and 1902.4 if it 
includes satisfactory assurances by the State that it will take the 
necessary ``developmental steps'' to meet the criteria within a three-
year period (29 CFR 1902.2(b)). The Assistant Secretary publishes a 
``certification of completion of developmental steps'' when all of a 
State's developmental commitments have been satisfactorily met (29 CFR 
1902.34).
    When a State plan that has been granted initial approval is 
developed sufficiently to warrant a suspension of concurrent Federal 
enforcement activity, it becomes eligible to enter into an 
``operational status agreement'' with OSHA (29 CFR 1954.3(f)). A State 
must have enacted its enabling legislation, promulgated State 
standards, achieved an adequate level of qualified personnel, and 
established a system for review of contested enforcement actions. Under 
these voluntary agreements, concurrent Federal enforcement will not be 
initiated with regard to Federal occupational safety and health 
standards in those issues covered by the State plan, where the State 
program is providing an acceptable level of protection.
    Following the initial approval of a complete plan, or the 
certification of a developmental plan, the Assistant Secretary must 
monitor and evaluate actual operations under the plan for a period of 
at least one year to determine, on the basis of actual operations under 
the plan, whether the criteria set forth in section 18(c) of the Act 
and 29 CFR 1902.37 are being applied.
    An affirmative determination under section 18(e) of the Act 
(usually referred to as ``final approval'' of the State plan) results 
in the relinquishment of authority for Federal concurrent enforcement 
jurisdiction in the State with respect to occupational safety and 
health issues covered by the plan (29 U.S.C. 667(e)). Procedures for 
section 18(e) determinations are found at 29 CFR part 1902, Subpart D. 
In general, in order to be granted final approval, actual performance 
by the State must be ``at least as effective'' overall as the Federal 
OSHA program in all areas covered under the State plan.
    An additional requirement for final approval consideration is that 
a State must meet the compliance staffing levels, or benchmarks, for 
safety inspectors and industrial hygienists established by OSHA for 
that State. This requirement stems from a court order by the U.S. 
District Court for the District of Columbia pursuant to the U.S. Court 
of Appeals' decision in AFL-CIO v. Marshall, 570 F.2d 1030 (D.C. Cir 
1978), that directed the Assistant Secretary to calculate for each 
State plan State the number of enforcement personnel needed to assure a 
``fully effective'' enforcement program.
    The last requirement for final approval consideration is that a 
State must participate in OSHA's Integrated Management Information 
System (IMIS). This is required so that OSHA can obtain the detailed 
program performance data on a State necessary to make an objective 
continuing evaluation of whether the State performance meets the 
statutory and regulatory criteria for final and continuing approval.

History of the Nevada Plan and of Its Compliance Staffing 
Benchmarks

Nevada Plan

    A history of the Nevada State plan, a description of its 
provisions, and a discussion of the compliance staffing benchmarks 
established for Nevada was contained in the November 16, 1999, Federal 
Register notice (64 FR 62138 ) proposing that final approval under 
Section 18(e) of the Act be granted. The Nevada State plan was 
submitted on December 12, 1972, initially approved on December 28, 1973 
(39 FR 1008), certified as having completed all developmental steps on 
August 13, 1981 (42 FR 42844), concurrent Federal enforcement 
jurisdiction suspended on December 9, 1981 (47 FR 25323), and revised 
compliance staffing benchmarks for Nevada were approved on September 
11, 1987 (52 FR 34381).

History of the Present Proceedings

    Procedures for final approval of State plans are set forth at 29 
CFR 1902, Subpart D. On November 16, 1999, OSHA published notice (64 FR 
62138) of the eligibility of the Nevada State plan for determination 
under section 18(e) of the Act as to whether final approval of the plan 
should be granted. The determination of eligibility was based on 
monitoring of State operations for at least one year following 
certification, State participation in the Federal-State Integrated 
Management Information System, and staffing which meets the revised 
State compliance staffing benchmarks.
    The November 16 Federal Register notice set forth a general 
description of the Nevada State plan and summarized the results of 
Federal OSHA monitoring of State operations during the period from July 
1, 1995 through March 31, 1999, with special attention to the period 
from October 1, 1997 to March 31, 1999. In addition to the information 
set forth in the notice itself, OSHA made available as part of the 
record extensive and detailed exhibits documenting the plan, including 
copies of the State legislation, administrative regulations and 
procedural manuals under which Nevada operates its plan.
    The most recent comprehensive evaluation report covering the period 
of July 1, 1995 through March 31, 1999, which was extensively 
summarized in the November 16 proposal and provided the principal 
factual basis for the proposed 18(e) determination, was included in the 
docket. In addition, updated data on investigation of complaints 
alleging discrimination for exercising one's occupational safety and 
health rights was submitted into the record (Exhibit 5) and was 
considered in the final approval process.
    To assist and encourage public participation in the 18(e) 
determination, copies of all docket materials were maintained in the 
OSHA Docket Office in Washington, DC., in the OSHA Regional Office in 
San Francisco, and at

[[Page 20737]]

the Nevada Division of Industrial Relations in Carson City, Nevada. 
Summaries of the November 16 notice, with an invitation for public 
comments, were published in Nevada on November 24, 1999 in the Las 
Vegas Review-Journal and on November 26, 1999 in the Elko Daily Free 
Press, Reno Gazette Journal and Nevada Appeal.
    The November 16 notice invited interested persons to submit by 
December 16 written comments and views regarding the Nevada plan and 
whether final approval should be granted. An opportunity to request an 
informal public hearing also was provided. Four (4) comments were 
received in response to this proposal; none requested an informal 
hearing.

Summary and Evaluation of Comments

    OSHA has encouraged interested members of the public to provide 
information and views regarding operations under the Nevada plan to 
supplement the information already gathered during OSHA monitoring and 
evaluation of plan administration.
    In response to the November 16 proposal, OSHA received comments 
from: Robert Ostrovsky, President, Ostrovsky and Associates, member and 
former Chairman, Department of Industrial Relations (DIR) Advisory 
Board [Ex. 3-1]; Linda M. Rogers, Vice-Chairman, DIR Advisory Board 
[Ex. 3-2]; John S. Rogers, CEO, Pacific Matrix Financial Corporation 
and former Chairman, Nevada Occupational Safety and Health Review Board 
[Ex. 3-3]; and Danny L. Thompson, Executive Secretary-Treasurer, Nevada 
State AFL-CIO [Ex. 3-4]. All four commenters expressed unqualified 
support for final approval. All of these comments indicated that the 
State has established and operates an effective safety and health 
program and that the State has been effective in protecting employees 
in Nevada. Specifically, the commenters commended the State program 
for, among other things: its automatic adoption of Federal standards; 
requirements in excess of those under Federal OSHA in such areas as 
pre-construction safety conferences and standards for ammonium 
perchlorate and tower cranes; and effective staffing.

Findings and Conclusions

    As required by 29 CFR 1902.41, in considering the granting of final 
approval to a State plan, OSHA has carefully and thoroughly reviewed 
all information available to it on the actual operation of the Nevada 
State plan. This information has included all previous evaluation 
findings since certification of completion of the State plan's 
developmental steps, especially data for the period July 1, 1995 
through March 31, 1999, and information presented in written 
submissions. Findings and conclusions in each of the areas of 
performance are as follows:
    (1) Standards. Section 18(c)(2) of the Act requires State plans to 
provide for occupational safety and health standards which are at least 
as effective as Federal standards. Such standards where not identical 
to the Federal must be promulgated through a procedure allowing for 
consideration of all pertinent factual information and participation of 
all interested persons (29 CFR 1902.4(b)(2)(iii)); must, where dealing 
with toxic materials or harmful physical agents, assure employee 
protection throughout his or her working life (29 CFR 1902.4(b)(2)(i)); 
must provide for furnishing employees appropriate information regarding 
hazards in the workplace through labels, posting, medical examinations, 
etc. (29 CFR 1902.4(b)(2)(vi)); must require suitable protective 
equipment, technological control, monitoring, etc. (29 CFR 
1902.4(b)(2)(vii)); and, where applicable to a product, must be 
required by compelling local conditions and not pose an undue burden on 
interstate commerce (29 CFR 1902.3(c)(2)).
    As documented in the approved Nevada State plan and OSHA's 
evaluation findings made a part of the record in this 18(e) 
determination proceeding, and as discussed in the November 16 notice, 
the Nevada plan provides for the adoption of standards and amendments 
thereto which are identical to Federal standards. The State's laws and 
regulations, previously approved by OSHA and made a part of the record 
in this proceeding, include provisions addressing all of the structural 
requirements for State standards set out in 29 CFR Part 1902.
    In order to qualify for final State plan approval, a State program 
must be found to have adhered to its approved procedures (29 CFR 
1902.37(b)(2)); to have timely adopted identical or at least as 
effective standards, including emergency temporary standards and 
standards amendments (29 CFR 1902.37(b)(3)); to have interpreted its 
standards in a manner consistent with Federal interpretations and thus 
to demonstrate that in actual operation State standards are at least as 
effective as the Federal (29 CFR 1902.37(b)(4)); and to correct any 
deficiencies resulting from administrative or judicial challenge of 
State standards (29 CFR 1902.37(b)(5)).
    As noted in the 18(e) Evaluation Report and summarized in the 
November 16, 1999 Federal Register notice, Nevada has adopted standards 
in a timely manner which are identical to Federal standards.
    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.
    Where a State adopts Federal standards, the State's interpretation 
and application of such standards must ensure consistency with Federal 
interpretation and application. OSHA's monitoring has found that the 
State's application of its standards is comparable to Federal standards 
application. No challenges to State standards have occurred in Nevada.
    Therefore, in accordance with section 18(c)(2) of the Act and the 
pertinent provisions of 29 CFR 1902.3, 1902.4 and 1902.37, OSHA finds 
that the Nevada program in actual operation provides for standards 
adoption, correction when found deficient, interpretation and 
application, in a manner at least as effective as the Federal Program.

[[Page 20738]]

    (2) Variances. A State plan is expected to have the authority and 
procedures for the granting of variances comparable to those in the 
Federal program (29 CFR 1902.4(b)(2)(iv)). The Nevada State plan 
contains such provisions in both law and regulations which have been 
previously approved by OSHA. In order to quality for final State plan 
approval, permanent variances granted must assure employment equally as 
safe and healthful as would be provided by compliance with the standard 
(29 CFR 1902.37(b)(6)); temporary variances granted must assure 
compliance as early as possible and provide appropriate interim 
employee protection (29 CFR 1902.37(b)(7)). As noted in the 18(e) 
Evaluation Report and the November 16 notice, 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. 
During the section 18(e) evaluation period, no temporary variance 
requests were received.
    Accordingly, OSHA finds that the Nevada program is able to 
effectively grant variances from its occupational safety and health 
standards.
    (3) Enforcement. Section 18(c)(2) of the Act and 29 CFR 
1902.3(d)(1) require a State program to provide a program for 
enforcement of State standards which is and will continue to be at 
least as effective in providing safe and healthful employment and 
places of employment as the Federal program. The State must require 
employer and employee compliance with all applicable standards, rules 
and orders (29 CFR 1902.3(d)(2)) and must have the legal authority for 
standards enforcement including compulsory process (29 CFR 
1902.4(c)(2)).
    The Nevada occupational safety and health statutes and implementing 
regulations, previously approved by OSHA, establish employer and 
employee compliance responsibility and contain legal authority for 
standards enforcement in terms substantially identical to those in the 
Federal Act. In order to be qualified for final approval, the State 
must have adhered to all approved procedures adopted to ensure an at 
least as effective compliance program (29 CFR 1902.37(b)(2)). The 18(e) 
Evaluation Report indicates no significant lack of adherence to such 
procedures.
    (a) Inspections. In order to qualify for final approval, the State 
program, as implemented, must allocate sufficient resources toward 
high-hazard workplaces while providing adequate attention to other 
covered workplaces (29 CFR 1902.37(b)(8)). Data contained in the 18(e) 
Evaluation Report noted that 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 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.
    (b) Employee Notice and Participation in Inspections: State plans 
must provide for inspections in response to employee complaints and 
must provide for an opportunity for employees and their representatives 
to point out possible violations through such means as employee 
accompaniment or interviews with employees (29 CFR 1902.4(c)(i) through 
(iii)). Nevada has procedures similar to Federal OSHA for processing 
and responding to complaints and providing for employee participation 
in State inspections. 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.
    The State has procedures similar to those of Federal OSHA which 
require that an opportunity for employee participation in inspections 
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 particpation in Nevada 
inspections.
    In addition, the State plan must provide that employees be informed 
of their protections and obligations under the Act by such means as the 
posting of notices (29 CFR 1902.4(c)(2)(iv)), and provide that 
employees have access to information on their exposure to regulated 
agents and access to records of the monitoring of their exposure to 
such agents (29 CFR 1902.4(c)(vi)).
    To inform employees and employers of their protections and 
obligations, Nevada requires that a poster approved by OSHA be 
displayed in all covered workplaces. Requirements for the posting of 
the poster and other notices such as citations, contests, hearings and 
variances applications are set forth in the previously approved State 
law and regulations which are substantially identical to Federal 
requirements. Information on employee exposure to regulated agents and 
access to medical and monitoring records is provided through State 
standards which are identical to the Federal. No problems have been 
noted regarding notice of these actions to employers and employees. 
Therefore, OSHA has concluded that the State's performance in this area 
is effective.
    (c) Nondiscrimination. A State is expected to provide appropriate 
protection to employees against discharge or discrimination for 
exercising their rights under the State's program including provision 
for employer sanctions and employee confidentiality (29 CFR 
1902.4(c)(2)(v)). Section 618.445 of the Nevada Occupational Safety and 
Health Act and State regulations provide 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 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 took action to ensure timely processing of 
discrimination complaints, and State performance in this area improved 
in Fiscal Year 1999. Statistics for the full fiscal year show that 78% 
of investigations were completed within 90 days. During the period from 
July 1 through September 30, 1999, 89% of discrimination investigations 
were completed within 90 days. Therefore, OSHA concludes that Nevada's 
performance in this area is satisfactory.
    (d) Restraint of Imminent Danger; Protection of Trade Secrets. A 
State plan is required to provide for the prompt restraint of imminent 
danger situations,

[[Page 20739]]

(29 CFR 1902.4(c)(2)(vii)) and to provide adequate safeguards for the 
protection of trade secrets (29 CFR 1902.4(c)(2)(viii)). The State has 
provisions concerning imminent danger and protection of trade secrets 
in its law, regulations and operations manual which are similar to the 
Federal requirements. In addition, the Administrator of the Division of 
Industrial Relations may issue an emergency order to restrain an 
imminent danger situation. There were no imminent danger situations 
identified during the evaluation period. There were no Complaints About 
State Program Administration (CASPA's) filed concerning the protection 
of trade secrets during the report period.
    (e) Right of Entry; Advance Notice. A State program is expected to 
have authority for right of entry to inspect and compulsory process to 
enforce such right equivalent to the Federal program (section 18(c)(3) 
of the Act and 29 CFR 1902.3(e)). In addition, a State is expected to 
prohibit advance notice of inspection, allowing exceptions thereto no 
broader than the Federal program (29 CFR 1902.3(f)). Section 618.325 of 
the Nevada Occupational Safety and Health Act provides for an 
inspector's right to enter and inspect all covered workplaces in terms 
substantially identical to those in the Federal Act. The Nevada law 
also prohibits advance notice, and implementing procedures for 
exceptions to this prohibition are substantially identical to the 
Federal procedures.
    In order to be found qualified for final approval, a State is 
expected to take action to enforce its right of entry when denied (29 
CFR 1902.37(b)(9)) and to adhere to its advance notice procedures. 
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. During the evaluation period, no advance notice of 
inspections was given.
    (f) Citations, Penalties, and Abatement. A State plan is expected 
to have authority and procedures for promptly notifying employers and 
employees of violations identified during inspections, for the purpose 
of effective first-instance sanctions against employers found in 
violation of standards and for prompt employer notification of such 
penalties (29 CFR 1902.4(c)(2) (x) and (xi)). The Nevada plan, through 
its law, regulations and operations manual has established a system 
similar to the Federal program to provide for the prompt issuance of 
citations to employers delineating violations and establishing 
reasonable abatement periods, requiring posting of such citations for 
employee information, and proposing penalties.
    In order to be qualified for final approval, the State, in actual 
operation, must be found to conduct competent inspections in accordance 
with approved procedures and to obtain adequate information to support 
resulting citations (29 CFR 1902.37(b)(10)), to issue citations, 
proposed penalties and failure-to-abate notifications in a timely 
manner (29 CFR 1902.37(b)(11)), to propose penalties for first-instance 
violations that are at least as effective as those under the Federal 
program (29 CFR 1902.37(b)(12)), and to ensure abatement of hazards 
including issuance of failure-to-abate notices and appropriate 
penalties (29 CFR 1902.37(b)(13)).
    Procedures for the Nevada occupational safety and health compliance 
program are set out in the Nevada Operations Manual, which is patterned 
after the Federal manual. The State follows inspection procedures, 
including documentation procedures, which are similar to the Federal 
procedures. The 18(e) Evaluation Report notes overall adherence by 
Nevada to these procedures. 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. Nevada cited an average of 2.7 violations per 
safety inspection and 3.3 violations per health inspection; and 27% of 
both safety and health violations were cited as serious. The percentage 
of serious safety and health violations were 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. Nevada's lapse time from the opening conference 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 citation lapse times.
    Nevada's procedures for calculation of penalties are similar to 
those of Federal OSHA. The 18(e) Evaluation Report noted that 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. 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.
    (g) Contested Cases. In order to be considered for initial approval 
and certification, a State plan must have authority and procedures for 
employer contest of citations, penalties and abatement requirements at 
full administrative or judicial hearings. Employees must also have the 
right to contest abatement periods and the opportunity to participate 
as parties in all proceedings resulting from an employer's contest (29 
CFR 1902.4(c)(2)(xii)). Nevada's procedures for employer and employee 
contest of citations, penalties and abatement requirements and for 
ensuring employees' rights are contained in the law, regulations and 
operations manual made a part of the record in this proceeding. The 
Nevada plan provides for the review of contested cases 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.
    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 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.
    (h) Enforcement Conclusion. In summary, the Assistant Secretary 
finds that enforcement operations provided under the Nevada plan are 
competently planned and conducted, and are overall at least as 
effective as Federal OSHA enforcement.
    (4) Public Employee Program: Section 18(c)(6) of the Act requires 
that a State which has an approved plan must maintain an effective and 
comprehensive safety and health program applicable to all employees of 
public agencies of the State and its political subdivisions, which 
program must be as effective as the standards contained in an approved 
plan. 29 CFR 1902.3(j) requires that a State's program for public 
employees be as effective as

[[Page 20740]]

the State's program for private employees covered by the plan. The 
Nevada plan provides a program in the public sector which is comparable 
to that in the private sector, including assessment of penalties for 
serious violations. Injury and illness rates in the public sector are 
comparable to private sector rates.
    During the 18(e) 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. Because 
Nevada's performance in the public sector is comparable to that in the 
private sector, OSHA concludes that the Nevada program meets the 
criteria in 29 CFR 1902.3(j).
    (5) Staffing and Resources. Section 18(c)(4) of the Act requires 
State plans to provide the qualified personnel necessary for the 
enforcement of standards. In accordance with 29 CFR 1902.37(b)(1), one 
factor which OSHA must consider in evaluating a plan for final approval 
is whether the State has a sufficient number of adequately trained and 
competent personnel to discharge its responsibilities under the plan.
    The Nevada plan provides for 22 safety compliance officers and 9 
industrial hygienists as set forth in the Nevada FY 1999 grant 
application. The FY 2000 grant application provides for 25 safety 
compliance officers and 12 industrial hygienists. This staffing level 
exceeds the revised ``fully effective'' benchmarks for Nevada for 
health and safety staffing of 11 safety and 5 health compliance 
officers approved by OSHA on September 11, 1987 [52 FR 34381]. At the 
close of the evaluation period the State had 20 safety and 9 health 
compliance officer positions filled.
    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.
    Because Nevada has allocated sufficient enforcement staff to meet 
the revised benchmarks for that State, and personnel are trained and 
competent, the requirements for final approval set forth in 29 CFR 
1902.37(b)(1), and in the court order in AFL-CIO v. Marshall, supra, 
are being met by the Nevada plan.
    Section 18(c)(5) of the Act requires that the State devote adequate 
funds to administration and enforcement of its standards. The Nevada 
plan was funded at $4,917,275 in FY 1999. ($1,163,000 (24%) of the 
funds were provided by Federal OSHA; Nevada matched this amount and 
contributed an additional $2,591,275 for a total State share of 
$3,754,275 (76%)).
    As noted in the 18(e) Evaluation Report, Nevada's funding exceeds 
Federal requirements in absolute terms; moreover, the State allocates 
its resources to the various aspects of the program in an effective 
manner. On this basis, OSHA finds that Nevada has provided sufficient 
funding and resources for the various activities carried out under the 
plan.
    (6) Records and Reports: State plans must assure that employers in 
the State submit reports to the Secretary in the same manner as if the 
plan were not in effect (section 18(c)(7) of the Act and 29 CFR 
1902.3(k)). The plan must also provide assurance that the designated 
agency will make such reports to the Secretary in such form and 
containing such information as he may from time to time require 
(section 18(c)(8) of the Act and 29 CFR 1902.4(1)).
    Nevada employer recordkeeping requirements are identical to those 
of Federal OSHA, and the State participates in the BLS Annual Survey of 
Occupational Injuries and Illnesses as well as the OSHA Data 
Initiative. The State participates and has assured its continuing 
participation with OSHA in the Integrated Management Information System 
(IMIS) as a means of providing reports on its activities to OSHA.
    For the foregoing reasons, OSHA finds that Nevada has met the 
requirements of sections 18(c)(7) and (8) of the Act on employer and 
State reports to the Secretary.
    (7) Voluntary Compliance: A State plan is required to undertake 
programs to encourage voluntary compliance by employers and employees 
(29 CFR 1902.4(c)(2)(xiii)).
    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 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.
    Accordingly, OSHA finds that Nevada has established and is 
administering an effective voluntary compliance program.
    (8) Injury/Illness Rates: As a factor in 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, even though 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.
    OSHA finds that during the evaluation period trends in worker 
injury and illness in Nevada were comparable with those in States with 
Federal enforcement.

Decision

    OSHA has carefully reviewed the record developed during the above 
described proceedings, including all comments received thereon. The 
present Federal Register document sets forth the findings and 
conclusions resulting from this review.
    In light of all the facts presented on the record, the Assistant 
Secretary has determined that the Nevada State plan for occupational 
safety and health, which has been monitored for at least one year 
subsequent to certification, is in actual operation at least as 
effective as the Federal program and meets the statutory criteria for 
State plans in section 18(e) of the Act and implementing regulations at 
29 CFR Part 1902. Accordingly, the Nevada State plan is hereby granted 
final approval under section 18(e) of the Act and implementing 
regulations at 29 CFR Part 1902, effective April 18, 2000.
    Under this 18(e) determination, Nevada will be expected to maintain 
a State program which will continue to be at least as effective as 
operations under the Federal program in providing

[[Page 20741]]

employee safety and health at covered workplaces. This requirement 
includes submitting all required reports to the Assistant Secretary as 
well as submitting plan supplements documenting State-initiated program 
changes, changes required in response to adverse evaluation findings, 
and responses to mandatory Federal program changes. In addition, Nevada 
must continue to allocate sufficient safety and health enforcement 
staff to meet the benchmarks for State compliance staffing established 
by the Department of Labor, or any revision to those benchmarks.

Effect of Decision

    The determination that the criteria set forth in section 18(c) of 
the Act and 29 CFR Part 1902 are being applied in actual operations 
under the Nevada plan terminates OSHA authority for Federal enforcement 
of its standards in Nevada, in accordance with section 18(e) of the 
Act, in those issues covered under the State plan. Section 18(e) 
provides that upon making this determination ``the provisions of 
sections 5(a)(2), 8 (except for the purpose of carrying out subsection 
(f) of this section), 9, 10, 13, and 17, shall not apply with respect 
to any occupational safety and health issues covered under the plan, 
but the Secretary may retain jurisdiction under the above provisions in 
any proceeding commenced under section 9 or 10 before the date of 
determination.''
    Accordingly, Federal authority to issue citations for violation of 
OSHA standards (sections 5(a)(2) and 9); to conduct inspections (except 
those necessary to conduct evaluations of the plan under section 18(f), 
and other inspections, investigations or proceedings necessary to carry 
out Federal responsibilities which are not specifically preempted by 
section 18(e)) (section 8); to conduct enforcement proceedings in 
contested cases (section 10); to institute proceedings to correct 
imminent dangers (section 13); and to propose civil penalties or 
initiate criminal proceedings for violations of the Federal OSH Act 
(section 17) is relinquished as of the effective date of this 
determination.
    Federal authority under provisions of the Act not listed in section 
18(e) is unaffected by this determination. Thus, for example, the 
Assistant Secretary retains his authority under section 11(c) of the 
Act with regard to complaints alleging discrimination against employees 
because of the exercise of any right afforded to the employee by the 
Act although such complaints may be initially referred to the State for 
investigation. Any proceeding initiated by OSHA under sections 9 and 10 
of the Act prior to the date of this final determination would remain 
under Federal jurisdiction. The Assistant Secretary also retains his 
authority under section 6 of the Act to promulgate, modify or revoke 
occupational safety and health standards which address the working 
conditions of all employees, including those in States which have 
received an affirmative 18(e) determination. In the event that a 
State's 18(e) status is subsequently withdrawn and Federal authority 
reinstated, all Federal standards, including any standards promulgated 
or modified during the 18(e) period, would be Federally enforceable in 
the State.
    In accordance with section 18(e), this determination relinquishes 
Federal OSHA authority only with regard to occupational safety and 
health issues covered by the Nevada plan, and OSHA retains full 
authority over issues which are not subject to State enforcement under 
the plan. Thus, for example, Federal OSHA retains its authority to 
enforce all provisions of the Act, and all Federal standards, rules or 
orders which relate to safety or health coverage of any private sector 
maritime activities (occupational safety and health standards 
comparable to 29 CFR Parts 1915, shipyard employment; 1917, marine 
terminals; 1918, longshoring; and 1919, gear certification, as well as 
provisions of general industry and construction standards (29 CFR Parts 
1910 and 1926) appropriate to hazards found in these employments), 
private employment on Indian land and any contractors or subcontractors 
on any Federal establishment where the land is exclusive Federal 
jurisdiction. 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 addition 
Federal OSHA may subsequently initiate the exercise of jurisdiction 
over any issue (hazard, industry, geographical area, operation or 
facility) for which the State is unable to provide effective coverage 
for reasons which OSHA determines are not related to the required 
performance or structure of the State plan.
    As provided by section 18(f) of the Act, the Assistant Secretary 
will continue to evaluate the manner in which the State is carrying out 
its plan. Section 18(f) and regulations at 29 CFR Part 1955 provide 
procedures for the withdrawal of Federal approval should the Assistant 
Secretary find that the State has subsequently failed to comply with 
any provision or assurance contained in the plan. Additionally, the 
Assistant Secretary is required to initiate proceedings to revoke an 
18(e) determination and reinstate concurrent Federal authority under 
procedures set forth in 29 CFR 1902.47, et seq., if his evaluations 
show that the State has substantially failed to maintain a program 
which is at least as effective as operations under the Federal program, 
or if the State does not submit program change supplements to the 
Assistant Secretary as required by 29 CFR Part 1953.

Explanation of Changes to 29 CFR Part 1952

    29 CFR Part 1952 contains, for each State having an approved plan, 
a Subpart generally describing the plan and setting forth the Federal 
approval status of the plan. 29 CFR 1902.43(a)(3) requires that notices 
of affirmative 18(e) determinations be accompanied by changes to Part 
1952 reflecting the final approval decision. This notice makes changes 
to Subpart W of Part 1952 to reflect the final approval of the Nevada 
plan.
    The table of contents for Part 1952, Subpart W, has been revised to 
reflect the following changes:
    A new Section 1952.294, Final approval determination, which 
formerly was reserved, has been added to reflect the determination 
granting final approval of the plan. This section contains a more 
accurate description of the current scope of the plan than the one 
contained in the initial approval decision.
    Section 1952.295, Level of Federal enforcement, has been revised to 
reflect the State's 18(e) status. This replaces the former description 
of the relationship of State and Federal enforcement under an 
Operational Status Agreement voluntarily suspending Federal enforcement 
authority, which was entered into on December 9, 1981. Section 1952.295 
describes the issues over which Federal authority has been terminated 
and the issues for which it has been retained in accordance with the 
discussion of the effects of the 18(e) determination set forth earlier 
in the present Federal Register notice.
    Section 1952.296, Where the plan may be inspected, has been revised 
to reflect a new address for the Nevada Division of Industrial 
Relations.

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

[[Page 20742]]

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.

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. OSHA has included in 
the Background section of today's final approval decision a detailed 
explanation of the relationship between Federal OSHA and the State plan 
States under the Occupational Safety and Health Act. OSHA has consulted 
extensively with Nevada throughout the period of 18(e) evaluation. 
Although OSHA has determined that the requirements and consultation 
procedures provided in Executive Order 13132 are not applicable to 
final approval decisions under the OSH Act, which have no effect 
outside the particular State receiving the approval, 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.
    This document was prepared under the direction of Charles N. 
Jeffress, Assistant Secretary of Labor for Occupational Safety and 
Health. It is issued under Section 18 of the OSH Act, (29 U.S.C. 667), 
29 CFR Part 1902, and Secretary of Labor's Order No. 1-90 (55 FR 
9033)).

List of Subjects in 29 CFR Part 1952

    Intergovernmental relations, Law enforcement, Occupational safety 
and health, Reporting and recordkeeping requirements.

    Signed at Washington, DC, this 6th day of April 2000.
Charles N. Jeffress,
Assistant Secretary.

    Part 1952 of 29 CFR is hereby amended as follows:

PART 1952--[AMENDED]

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

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

Subpart W--Nevada

    2. A new Sec. 1952.294 is added, and Secs. 1952.295 and 1952.296 
are revised to read as follows:


Sec. 1952.294  Final approval determination.

    (a) In accordance with section 18(e) of the Act and procedures in 
29 CFR Part 1902, and after determination that the State met the 
``fully effective'' compliance staffing benchmarks as revised in 1986 
in response to a court order in AFL-CIO v. Marshall, 570 F.2d 1030 
(D.C. Cir 1978), and was satisfactorily providing reports to OSHA 
through participation in the Federal-State Integrated Management 
Information System, the Assistant Secretary evaluated actual operations 
under the Nevada State plan for a period of at least one year following 
certification of completion of developmental steps. Based on an 18(e) 
Evaluation Report covering the period July 1, 1995 through March 31, 
1999, and after opportunity for public comment, the Assistant Secretary 
determined that in operation the State of Nevada's occupational safety 
and health program is at least as effective as the Federal program in 
providing safe and healthful employment and places of employment and 
meets the criteria for final State plan approval in section 18(e) of 
the Act and implementing regulations at 29 CFR Part 1902. Accordingly, 
the Nevada plan was granted final approval and concurrent Federal 
enforcement authority was relinquished under section 18(e) of the Act 
effective April 18, 2000.
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of 
employment in Nevada. The plan does not cover Federal government 
employers and employees; any private sector maritime activities; 
employment on Indian land; any contractors or subcontractors on any 
Federal establishment where the land is exclusive Federal jurisdiction; 
and the United States Postal Service (USPS), including USPS employees, 
contract employees, and contractor-operated facilities engaged in USPS 
mail operations.
    (c) Nevada is required to maintain a State program which is at 
least as effective as operations under the Federal program; to submit 
plan supplements in accordance with 29 CFR Part 1953; to allocate 
sufficient safety and health enforcement staff to meet the benchmarks 
for State staffing established by the U.S. Department of Labor, or any 
revisions to those benchmarks; and, to furnish such reports in such 
form as the Assistant Secretary may from time to time require.


Sec. 1952.295  Level of Federal enforcement.

    (a) As a result of the Assistant Secretary's determination granting 
final approval to the Nevada State plan under section 18(e) of the Act, 
effective April 18, 2000, occupational safety and health standards 
which have been promulgated under section 6 of the Act do not apply 
with respect to issues covered under the Nevada Plan. This 
determination also relinquishes concurrent Federal OSHA authority to 
issue citations for violations of such standards under section 5(a)(2) 
and 9 of the Act; to conduct inspections and investigations under 
section 8 (except those necessary to conduct evaluation of the plan 
under section 18(f) and other inspections, investigations, or 
proceedings necessary to carry out Federal responsibilities not 
specifically preempted by section 18(e)); to conduct enforcement 
proceedings in contested cases under section 10; to institute 
proceedings to correct imminent dangers under section 13; and to 
propose civil penalties or initiate criminal proceedings for violations 
of the Federal OSH Act under section 17. The Assistant Secretary 
retains jurisdiction under the above provisions in any proceeding 
commenced under section 9 or 10 before the effective date of the 18(e) 
determination.
    (b)(1) In accordance with section 18(e), final approval 
relinquishes Federal OSHA authority only with regard to occupational 
safety and health issues covered by the Nevada plan. OSHA retains full 
authority over issues which are not subject to State enforcement under 
the plan. Thus, Federal OSHA retains its authority relative to safety 
and health in private sector maritime activities and will continue to 
enforce all provisions of the Act, rules or orders, and all Federal 
standards, current or future, specifically directed to any private 
sector maritime activities (occupational safety and health standards 
comparable to 29 CFR Parts 1915, shipyard employment; 1917, marine 
terminals; 1918, longshoring; and 1919, gear certification, as well as 
provisions of general industry and construction standards (29 CFR Parts 
1910 and 1926) appropriate to hazards found in these employments), 
employment on Indian land, and any contractors or subcontractors on any 
Federal establishment where the land is exclusive Federal jurisdiction. 
Federal jurisdiction is also retained with respect to Federal 
government employers and employees. Federal OSHA will also retain 
authority for coverage of the United States Postal Service (USPS),

[[Page 20743]]

including USPS employees, contract employees, and contractor-operated 
facilities engaged in USPS mail operations.
    (2) In addition, any hazard, industry, geographical area, operation 
or facility over which the State is unable to effectively exercise 
jurisdiction for reasons which OSHA determines are not related to the 
required performance or structure of the plan shall be deemed to be an 
issue not covered by the State plan which has received final approval, 
and shall be subject to Federal enforcement. Where enforcement 
jurisdiction is shared between Federal and State authorities for a 
particular area, project, or facility, in the interest of 
administrative practicability Federal jurisdiction may be assumed over 
the entire project or facility. In any of the aforementioned 
circumstances, Federal enforcement authority may be exercised after 
consultation with the State designated agency.
    (c) Federal authority under provisions of the Act not listed in 
section 18(e) is unaffected by final approval of the Nevada State plan. 
Thus, for example, the Assistant Secretary retains his authority under 
section 11(c) of the Act with regard to complaints alleging 
discrimination against employees because of the exercise of any right 
afforded to the employee by the Act, although such complaints may be 
referred to the State for investigation. The Assistant Secretary also 
retains his authority under section 6 of the Act to promulgate, modify 
or revoke occupational safety and health standards which address the 
working conditions of all employees, including those in States which 
have received an affirmative 18(e) determination, although such 
standards may not be Federally applied. In the event that the State's 
18(e) status is subsequently withdrawn and Federal authority 
reinstated, all Federal standards, including any standards promulgated 
or modified during the 18(e) period, would be Federally enforceable in 
that State.
    (d) As required by section 18(f) of the Act, OSHA will continue to 
monitor the operations of the Nevada State program to assure that the 
provisions of the State plan are substantially complied with and that 
the program remains at least as effective as the Federal program. 
Failure by the State to comply with its obligations may result in the 
suspension or revocation of the final approval determination under 
Section 18(e), resumption of Federal enforcement, and/or proceedings 
for withdrawal of plan approval.


Sec. 1952.296  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations: Office of State Programs, Directorate of Federal-State 
Operations, Occupational Safety and Health Administration, U.S. 
Department of Labor, 200 Constitution Avenue NW, Room N3700, 
Washington, DC 20210; Office of the Regional Administrator, 
Occupational Safety and Health Administration, Room 415, 71 Stevenson 
Street, San Francisco, California 94105; Office of the State Designee, 
Administrator, Nevada Division of Industrial Relations, 400 West King 
Street, Suite 400, Carson City, Nevada 89703.
[FR Doc. 00-9297 Filed 4-17-00; 8:45 am]
BILLING CODE 4510-26-P