[Federal Register Volume 66, Number 8 (Thursday, January 11, 2001)]
[Rules and Regulations]
[Pages 2265-2273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-684]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1956

RIN 1218-AB98


Notice of Initial Approval Determination; New Jersey Public 
Employee Only State Plan

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

ACTION: Final Rule: Initial State Plan Approval; New Jersey Public 
Employee Only State Plan.

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SUMMARY: The New Jersey Public Employee Only State plan, a State 
occupational safety and health plan applicable only to public sector 
employees (employees of the State and its political subdivisions), is 
approved

[[Page 2266]]

as a developmental plan under section 18 of the Occupational Safety and 
Health Act of 1970 and 29 CFR part 1956. Under the approved plan, the 
New Jersey Department of Labor is designated as the State agency 
responsible for the development and enforcement of occupational safety 
and health standards applicable to public employment throughout the 
State. The Occupational Safety and Health Administration (OSHA) retains 
full authority for coverage of private sector employees in the State of 
New Jersey as well as for coverage of Federal government employees.

EFFECTIVE DATE: January 11, 2001.

FOR FURTHER INFORMATION CONTACT: Paula O. White, Director, Federal-
State Operations, Occupational Safety and Health Administration, U.S. 
Department of Labor, Room N-3700, 200 Constitution Avenue, NW., 
Washington, DC 20210. Telephone: (202) 693-2200, Fax: (202) 693-1671, 
E-mail: [email protected].

SUPPLEMENTARY INFORMATION:

A. Introduction

    Section 18 of the Occupational Safety and Health Act of 1970 (the 
``OSH Act''), 29 U.S.C. 667, provides that a State which desires to 
assume responsibility for the development and enforcement of 
occupational safety and health standards relating to any occupational 
safety and health issue with respect to which a Federal standard has 
been promulgated may submit a State plan to the Assistant Secretary of 
Labor for Occupational Safety and Health (``Assistant Secretary'') 
documenting in detail the proposed program. Regulations promulgated 
pursuant to the OSH Act at 29 CFR part 1956 provide that a State may 
submit a State plan for the development and enforcement of standards 
applicable only to employees of the State and its political 
subdivisions (``public employees''). State and local government workers 
are excluded from Federal coverage under the OSH Act and are provided 
protection only through the vehicle of a State Plan approved pursuant 
to Section 18 of the Act.
    Under these regulations, the Assistant Secretary will approve a 
State plan for public employees if the plan provides for the 
development and enforcement of standards relating to hazards in 
employment covered by the plan which are, or will be, at least as 
effective in providing safe and healthful employment and places of 
employment for public employees as standards promulgated and enforced 
under section 6 of the OSH Act, giving due consideration to differences 
between public and private sector employment. In making this 
determination the Assistant Secretary will consider, among other 
things, the criteria and indices of effectiveness set forth in 29 CFR 
Part 1956, Subpart B. A State plan for public employees may receive 
initial approval even though, upon submission, it does not fully meet 
the criteria set forth in Secs. 1956.10 and 1956.11, if it includes 
satisfactory assurances by the State that it will take the necessary 
steps, and establishes an acceptable developmental schedule, to meet 
the criteria within a 3-year period (29 CFR 1956.2(b)). The Assistant 
Secretary publishes a notice of ``certification of completion of 
developmental steps'' when all of a State's developmental commitments 
have been met satisfactorily (29 CFR 1956.23; 1902.33 and 1902.34) and 
the plan is structurally complete. After certification of a State plan 
for public employees, OSHA may initiate a period of at least one year 
of intensive monitoring, after which OSHA may make a determination 
under the procedures of Secs. 1902.38, 1902.39, 1902.40 and 1902.41 as 
to whether, on the basis of actual operations, the criteria set forth 
in Secs. 1956.10 and 1956.11 for ``at least as effective'' State plan 
performance are being applied under the plan--a determination of 
``operational effectiveness.''

B. History of the Present Proceeding

    In 1973, the New Jersey Department of Labor and Industry obtained 
OSHA approval of a State plan for the enforcement of occupational 
safety and health standards covering private sector workplaces as well 
as a program for public employees in New Jersey. That plan was approved 
by the Assistant Secretary on January 22, 1973 ((37 FR 2426); 29 CFR 
1952.140 et seq). That plan was subsequently withdrawn by the State of 
New Jersey effective June 30, 1975, after the State was unable to gain 
enactment of the necessary State OSHA legislation (40 FR 27655).
    In 1984, the New Jersey State Legislature passed the New Jersey 
Public Employees Occupational Safety and Health (PEOSH) Act, N.J.S.A. 
34:6A (the ``State Act''), which was signed into law by the Governor, 
and which provided the basis for establishing a comprehensive 
occupational safety and health program applicable to the public 
employees in the State.
    The State formally submitted for Federal approval a plan applicable 
only to public employees in February 1988. OSHA's review findings were 
detailed in an October 1988 letter to the State in which OSHA 
determined that the New Jersey statute, as then structured, and the 
proposed State plan failed to meet Federal Public Employee Only State 
plan approval criteria.
    A revised plan was submitted by the State on February 19, 1992. On 
March 27, 1992, OSHA informed the State of its findings, identifying 
areas of the proposed plan which needed to be addressed or needed 
clarification. Amended enabling legislation was signed into law on July 
25, 1995, to conform the proposed State plan to OSHA requirements. On 
October 11, 1995, the New Jersey State Labor Commissioner submitted a 
newly revised State plan which OSHA determined was conceptually 
approvable as a developmental State plan, but which could not be 
approved until additional Federal matching grant funds, necessary for 
approval of a new State plan, were appropriated under section 23(g) of 
the OSH Act. (The OSH Act provides for funding ``up to 50%'' of the 
State plan costs, but longstanding language in OSHA's appropriation 
legislation further provides that OSHA must fund ``* * * no less than 
50% of the costs required to be incurred'' by an approved State plan. 
Thus Federal matching grant funds must be available before a State plan 
can be approved.)
    On August 1, 2000, current New Jersey Commissioner of Labor, Mark 
B. Boyd, and Commissioner of Health and Senior Services, Christine 
Grant, submitted a further revised plan document, with subsequent 
amendments submitted on August 15, August 29, September 1, September 
22, September 28, and October 5, 2000. On December 21, 2000, the 
President signed the appropriation act for FY 2001 for the Department 
of Labor, as approved by the Congress, which includes funding for the 
Occupational Safety and Health Administration specifically designated 
for initial approval of the New Jersey State plan.
    On November 13, 2000, OSHA published notice in the Federal Register 
(65 FR 67672) concerning the submission of the New Jersey Public 
Employee Only State plan, announcing that initial Federal approval of 
the plan was at issue, and offering interested parties an opportunity 
to review the plan and submit data, views, arguments or requests for a 
hearing concerning the plan. The New Jersey Department of Labor 
published similar notices throughout the State from November 15-17, 
2000, in the following New Jersey newspapers: The Newark Star-Ledger, 
The South Jersey Courier-Post,

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The Trenton Times, The Atlantic City Press, and The Bergen Record. (Ex. 
#5)
    To assist and encourage public participation in the initial 
approval process, copies of the New Jersey State plan were maintained 
as Docket No. T-034 in the Docket Office, Department of Labor, 
Occupational Safety and Health Administration, Third Street and 
Constitution Avenue, NW, Room N-2625, Washington, DC 20210; Office of 
the New York Regional Administrator, U.S. Department of Labor, 
Occupational Safety and Health Administration, 201 Varick Street, Room 
670, New York, New York 10014; and the New Jersey Department of Labor, 
Division of Public Safety and Occupational Safety and Health, Office of 
Public Employees' Safety, P.O. Box 386, 225 East State Street, 8th 
Floor West, Trenton, New Jersey 08625-0386.

C. Summary and Evaluation of Comments Received

    In response to OSHA's November 13, 2000, Federal Register notice, 
which announced submission of the New Jersey State plan and its 
availability for public comment, three (3) written public comments were 
submitted by: (1) Peter P. Guzzo, Executive Director/Legislative Agent, 
for Consumers for Civil Justice (OSHA Docket #T-034, Exhibit 3-1.); (2) 
Rick Engler, Director, New Jersey Work Environment Council, cosigned by 
the following 15 organizations: Harold Schaitberger, General President, 
for International Association of Fire Fighters, AFL-CIO; Thomas 
Canzanella, President, for Professional Firefighters Association of New 
Jersey, IAFF; William J. Lavin, for New Jersey Firemen's Mutual 
Benevolent Association; Michael Johnson, President, for New Jersey 
Education Association; David Legrande, Director of Occupational Safety 
and Health, for Communications Workers of America (CWA), AFL-CIO; 
Robert Pursell, New Jersey Area Director, for CWA District 1; Carla 
Katz, President, for CWA Local 1034; Michael Lohman, Staff 
Representative, for CWA, Local 1033, and Chairman, CWA New Jersey State 
Worker Locals Health and Safety Coordinating Committee; Bill Borwegan, 
Director of Occupational Safety and Health, for Service Employees 
International Union, AFL-CIO; Daryl Alexander, Associate Director for 
Occupational Safety and Health, for American Federation of Teachers 
(AFT), AFL-CIO; Nicholas C. Yovnello, President, for Council of New 
Jersey State College Locals, AFT; Ken Carlson, President for Rutgers 
Council of American Association of University Professors; Gerald 
Newsome, Trustee, for International Federation of Professional and 
Technical Engineers Local, 195, AFL-CIO; Edward II Lennon, President, 
for State Troopers Fraternal Association of New Jersey; Mark Dudzie, 
President, for Paper, Allied-Industrial, Chemical, and Energy Workers 
Local 2-149, AFL-CIO (OSHA Docket # T-034, Exhibit 3-2.); and; (3) 
Verri Andrea, student, University of Wisconsin-Madison. (OSHA Docket # 
T-034, Exhibit #4-1.)
    All of the commenters listed above indicated their support for OSHA 
approval of the New Jersey Public Employee Only State plan. None has 
requested a public hearing or raised any issues for consideration.

D. Review Findings

    As required by 29 CFR 1956.2 in considering the granting of initial 
approval to a State public employee only plan, OSHA must determine 
whether the State plan meets or will meet the criteria in 29 CFR 
1956.10 and the indices of effectiveness in 29 CFR 1956.11. Findings 
and conclusions in each of the major State plan areas addressed by 29 
CFR part 1956 are as follows:

(1) Designated Agency

    Section 18(c)(1) of the OSH Act provides that a State occupational 
safety and health plan must designate a State agency or agencies 
responsible for administering the plan throughout the State (29 CFR 
1956.10(b)(1)). The plan must describe the authority and 
responsibilities of the designated agency and provide assurance that 
other responsibilities of the agency will not detract from its 
responsibilities under the plan (29 CFR 1956.10(b)(2)). The New Jersey 
Department of Labor is designated by revised N. J. S. A. 34:6A-25 et 
seq., as the sole agency responsible for administering and enforcing 
the New Jersey Public Employee Occupational Safety and Health (PEOSH) 
plan. (New Jersey State plan, p. 15.) The plan also describes the 
authority of the New Jersey Department of Labor and its other 
responsibilities. (New Jersey State plan, pp.16-16.2.) The New Jersey 
Department of Health and Senior Services has responsibility for 
conducting inspections with regard to occupational health hazards but 
all standards adoption and enforcement authority rests with the New 
Jersey Department of Labor. (N.J.S.A. 34:6A-30(e))

(2) Scope

    Section 18(c)(6) of the OSH Act provides that the State, to the 
extent permitted by its law, shall under its plan establish and 
maintain an effective and comprehensive occupational safety and health 
program applicable to all employees of the State and its political 
subdivisions. Only where a State is constitutionally precluded from 
regulating occupational safety and health conditions in certain 
political subdivisions may the State exclude such political subdivision 
employees from coverage (29 CFR 1956.2(c)(1)). Further, the State may 
not exclude any occupational, industrial or hazard grouping from 
coverage under its plan unless OSHA finds that the State has shown 
there is no necessity for such coverage (29 CFR 1956.2(c)(2)).
    The scope of the New Jersey State plan includes any employee of the 
State and any political subdivision thereof, including a public 
authority or any other governmental agency or authority. No employees 
of any political subdivision of the State or local government are 
excluded from the plan. (New Jersey State plan, pp 10-11.) The New 
Jersey Department of Labor adopts all Federal OSHA occupational safety 
and health standards, and the plan excludes no occupational, industrial 
or hazard grouping. (New Jersey State plan, p. 10)
    Consequently, OSHA finds that the New Jersey plan contains 
satisfactory assurances that no employees of the State and its 
political subdivisions are excluded from coverage, and the plan 
excludes no occupational, industrial or hazard grouping.

(3) Standards

    Section 18(c)(2) of the OSH Act requires State plans to provide for 
occupational safety and health standards which are at least as 
effective as Federal OSHA standards. A State plan for public employees 
must therefore provide for the development or adoption of such 
standards and must contain assurances that the State will continue to 
develop or adopt such standards (29 CFR 1956.10(c); 1956.11(b)(2)(ii)). 
A State may establish the same standards as Federal OSHA (29 CFR 
1956.11(a)(1)), or alternative standards that are at least as effective 
as those of Federal OSHA (29 CFR 1956.11(a)(2)). Where a State's 
standards are not identical to Federal OSHA, they must meet the 
following criteria: they must be promulgated through a procedure 
allowing for consideration of all pertinent factual information and 
participation of all interested persons (29 CFR 1956.11(b) (2)(iii)); 
must, where dealing with toxic materials or harmful physical agents, 
assure employee protection throughout his or her working life (29 CFR 
1956. 11(b)(2)(i));

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must provide for furnishing employees appropriate information regarding 
hazards in the workplace through labels, posting, medical examinations, 
etc. (29 CFR 1956.11(b)(2)(vi)); and, must require suitable protective 
equipment, technological control, monitoring, etc. (29 CFR 
1956.11(b)(2)(vii)).
    In addition, the State plan must provide for prompt and effective 
standards setting actions for protection of employees against new and 
unforeseen hazards, by such means as authority to promulgate emergency 
temporary standards (29 CFR 1956.11(b)(2)(v)).
    The PEOSH Act, 34:6A-30 et seq., mandates that the Commissioner of 
Labor (the ``Commissioner'') shall adopt all safety and health 
standards promulgated under the OSH Act which are in effect on the 
effective date of the State Act (January 17, 1984, as amended July 25, 
1995), and incorporate future revisions. (New Jersey State plan, p.19) 
The procedures for State adoption of Federal occupational safety and 
health standards include publication in the New Jersey Register in 
accordance with N.J.S.A. 52:14B-5. New Jersey has adopted State 
standards identical to Federal occupational safety and health standards 
promulgated as of December 7, 1998, with the exception of the hazard 
communication and fire protection standards. The State plan includes a 
commitment to bring those standards into conformance with OSHA 
requirements and to update all standards within one year after plan 
approval. (The State intends to incorporate appropriate provisions of 
the New Jersey Right to Know Act into its public sector occupational 
hazard communication standard.) The State plan also provides that 
future OSHA standards and revisions will be adopted by the State in 
accordance with 29 CFR 1953.21.
    Under the New Jersey State plan, the Commissioner of Labor, in 
consultation with the Commissioner of Health and Senior Services, and 
the Commissioner of Community Affairs, and with the advice of the 
Public Employees' Safety and Health Advisory Board may adopt 
alternative or different occupational safety and health standards where 
no federal standards are applicable or where more stringent standards 
are deemed advisable. (N.J.S.A. 34:6A-30(c); New Jersey State plan, 
pp.21-28). Such standards will be adopted in accordance with the State 
Act and the New Jersey Administrative Procedures Act, N.J.S.A. 52-148-1 
et seq., which include provisions for interested persons to petition 
the State for a new or revised standard and which give interested 
persons the opportunity to participate in any hearing for the 
development, modification or establishment of standards.
    Section 34:6A-30(b) of the amended State Act provides for 
coordination of the provisions of the State uniform construction code 
and the uniform fire safety code with State occupational safety and 
health standards. The Commissioner of Community Affairs is charged with 
amending the uniform construction or fire codes to reflect any more 
stringent applicable provisions of the State OSHA standards and with 
preparing an application to the Assistant Secretary for approval of any 
equally effective provision of the uniform construction or fire codes 
for incorporation into the State plan. In response to OSHA's concerns 
that building or fire codes may not appropriately address employee 
protection, New Jersey amended its State Act and provided assurance 
that Federal approval will be obtained prior to the incorporation of 
building or fire codes as State occupational safety and health 
standards into the State plan. (New Jersey State plan, p.27)
    The New Jersey State plan also provides for the adoption of Federal 
emergency temporary standards within 30 days of Federal promulgation. 
State regulations will be amended to reflect this. (New Jersey State 
plan, p. 27)
    Based on the foregoing plan provisions and assurances and 
commitments, OSHA finds the New Jersey State plan to have met the 
statutory and regulatory requirements for initial plan approval with 
respect to occupational safety and health standards.

(4) Variances

    A State plan must provide authority for the granting of variances 
from State standards upon application of a public employer or employers 
which corresponds to variances authorized under the OSH Act, and for 
consideration of the views of interested parties, by such means as 
giving affected employees notice of each application and an opportunity 
to request and participate in hearings or other appropriate proceedings 
relating to applications for variances (29 CFR 1956.11(b)(2)(iv)).
    The State Act provides for the granting of permanent and temporary 
variances from State standards (N.J.S.A., Section 34:6A-39; New Jersey 
State Plan, pp. 35-51) in terms substantially similar to the variance 
provisions of the OSH Act. The State provisions require employee 
notification of variance applications as well as employee rights to 
participate in hearings held on variance applications. Variances may 
not be granted unless it is established that adequate protection is 
afforded employees under the terms of the variance. However, the 
State's variance procedures at N.J.A.C. 12:110-6.5(c) require revision. 
The State has provided assurance in its developmental schedule that 
within two years of initial plan approval it will amend its regulations 
to reflect variance provisions contained in the Federal 29 CFR Part 
1905. (New Jersey State Plan p. 38.)
    Accordingly, OSHA finds that the New Jersey State plan effectively 
provides or will provide opportunity and procedures for variances from 
its occupational safety and health standards.

(5) Enforcement

    Section 18(c)(2) of the OSH Act and 29 CFR 1956.10(d)(1) require a 
State plan to include provisions for enforcement of State standards 
which are or will be at least as effective in providing safe and 
healthful employment and places of employment as the Federal program, 
and to assure that the State's enforcement program for public employees 
will continue to be at least as effective as the Federal program in the 
private sector.
    (a) Legal Authority. The State must require public employer and 
employee compliance with all applicable standards, rules and orders (29 
CFR 1956.10(d)(2)) and must have the legal authority for standards 
enforcement (section 18(c)(4)) including compulsory process (29 CFR 
1956.11(c)(2)(viii)).
    Section 34:6A-33 of the State Act requires public employers to 
comply with the New Jersey Department of Labor's occupational safety 
and health standards; section 34:6A-34 requires employees to comply 
with all standards and regulations applicable to their own actions and 
conduct. Section 34:6A-31 of the revised State Act also provides that 
space leased by a public employer must be in conformance with current 
occupational safety and health requirements at the time a lease is 
executed.
    (b) Inspections. A State plan must provide for inspection of 
covered workplaces, including in response to complaints, where there 
are reasonable grounds to believe a hazard exists (29 CFR 
1956.11(c)(2)(i)).
    When no compliance action results from inspection of violations 
alleged by employee complaints, the State must notify the complainant 
of its decision not to take compliance action by such means as written 
notification and

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opportunity for informal review (29 CFR 1956.11(c)(2)(iii)).
    The State Act provides for inspections of covered workplaces 
including inspections in response to employee complaints by the 
Commissioner of Labor, and with regard to health hazards, by the 
Commissioner of Health and Senior Services (N.J.S.A., Sections 34:6A-
35, 36, and 38.) The New Jersey State plan (Section 1, pp. 73-75) 
provides that when a determination has been made that a complaint does 
not warrant an inspection, the complainant shall be notified in writing 
of the determination and given an opportunity to request a review of 
that determination. In response to OSHA comments, New Jersey revised 
its regulations and procedures to allow complainants to elect anonymity 
in the process.
    (c) Employee Notice and Participation in Inspection. In conducting 
inspections, the State plan must provide an opportunity for employees 
and their representatives to point out possible violations through such 
means as employee accompaniment or interviews with employees (29 CFR 
1956.11(c) (2)(ii)).
    The State Act provides the opportunity for an employer and employee 
representative to accompany a Department of Labor or Department of 
Health and Senior Services inspector for the purpose of aiding in the 
inspection. (N.J.S.A., Section 34:6A-36 and -38.) Where there is no 
authorized employee representative, the inspectors are required to 
consult with a reasonable number of employees concerning matters of 
safety and health in the workplace. Any employee who accompanies an 
inspector representing either Commissioner on an inspection shall 
receive payment of normal wages for the time spent on the inspection. 
(N.J.S.A. Sec 34:6A-35,-36, -38)
    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 1956.11(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 1956.11(c)(2)(vi)).
    The State Act provides that the Commissioner of Labor must issue 
regulations requiring that employers, through posting of notices, 
training or other appropriate means, keep their employees informed of 
their protections. (N.J.S.A., Section 34:6A-31.) A poster, which 
outlines employee protections and obligations under the Act, has been 
designed and distributed to public employers. Specific regulations as 
well as the poster have been submitted by the State. (New Jersey State 
Plan, Attachments 3 and 9.)
    Information on employee exposure to regulated agents (in the public 
sector), access to medical and exposure records, and provision and use 
of suitable protective equipment is provided through State standards. 
New Jersey has adopted all Federal standards as of December 7, 1998 
with the exception of 29 CFR part 1910, subpart L--Fire protection, and 
29 CFR 1910.1200 Hazard Communication. The State plan contains an 
assurance that the State intends to adopt all applicable Federal 
standards either identically or submit alternative standards which are 
at least as effect as the Federal standards within one year of plan 
approval as a part of the 3-year developmental schedule. (New Jersey 
State Plan, pp. 28-32)
    (d) 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 1956.11(c) 
(2)(v)).
    The State Act provides that no person shall discharge, or otherwise 
discipline, or in any manner discriminate against any employee because 
such employee has filed a complaint or instituted or caused to be 
instituted any proceeding under or related to this section or has 
testified or is about to testify in any such proceeding, or because of 
the exercise by such employee on behalf of the employee or others of 
any right under this section. (N.J.S.A., Section 34:6A-45.)
    The State Act provides that an employee who believes that he or she 
has been discharged, disciplined or otherwise discriminated against by 
any person in violation of this section, may within 180 days after the 
employee first has knowledge such a violation did occur, file a 
complaint with the Commissioner of Labor alleging that discrimination. 
(N.J.S.A., Section 34:6A-45b.) The Commissioner shall investigate such 
complaints as appropriate and make a determination within 90 days which 
shall include an order for all appropriate relief. The monetary penalty 
established for repeated violations may also be applied to repeated 
discriminatory acts. (N.J.S.A. 34:6A-41(d))
    New Jersey will amend its regulations on nondiscrimination 
procedures, N.J.A.C. 12:110-7, to conform with Federal guidelines 
within two years after plan approval. (New Jersey State Plan, p. 80; 
Attachment 3.)
    e. Restraint of Imminent Danger. A State plan is required to 
provide for the prompt restraint of imminent danger situations (29 CFR 
1956.11(c)(2)(vii)).
    Section 34:6A.44 of the State Act provides that the Attorney 
General, at the request of and on behalf of the Commissioner of Labor, 
may bring an action in the Superior Court to restrain any conditions or 
practices in any workplace which the Commissioner determines, in 
accordance with the State Act ( N.J.S.A. 34:6A-41), are such that a 
danger exists which could reasonably be expected to cause death or 
serious physical harm immediately or before the danger could be 
eliminated through the enforcement process. (New Jersey State plan, pp. 
66-69.)
    (f) Right of Entry; Advance Notice. A State program is required 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 1956.10(e)). Likewise, a State is expected to 
prohibit advance notice of inspection, allowing exception thereto no 
broader than in the Federal program (29 CFR 1956.10(f)).
    The State Act provides that the Commissioner of Labor and the 
Commissioner of Health and Senior Services both have the right of 
immediate entry of any premises occupied by a public employer at 
reasonable hours, and without advance notice if there is reason to 
believe that a violation of this section of State law has occurred. 
(N.J.S.A., 34:3A-35.)
    The New Jersey State plan ( p.63-64) describes its general policy 
and procedures prohibiting advance notice of inspections and allowing 
exception thereto. Any person who gives advance notice of any 
inspection to be conducted under this act, without authority from the 
Commissioner of Labor or the Commissioner of Health and Senior Services 
or their designees, shall upon conviction, be punished by a fine of not 
more than $1,000 or by imprisonment for not more than six (6) months, 
or by both. (N.J.S.A. 34:6A-35(g)).
    (g) Citations, Sanctions, and Abatement. A State plan is expected 
to have authority and procedures for promptly notifying employers and 
employees of violations, including proposed abatement requirements, 
identified during inspection, for the proposal of effective first-
instance sanctions against employers found in violation of standards, 
and for prompt employer notification of any such sanctions. In lieu of 
monetary penalties as a sanction, a complex of enforcement

[[Page 2270]]

tools and rights, including administrative orders and employee right to 
contest citations (as well as abatement dates), may be demonstrated to 
be as effective as monetary penalties in achieving compliance in public 
employment (29 CFR 1956.11(c)(2)(ix) and (x)).
    The State Act describes the authority and general procedures of the 
Commissioner of Labor to promptly notify public employers and employees 
of violations, and abatement requirements and to compel compliance 
therewith. The Commissioner of Labor must issue a written order to 
comply with reasonable promptness which is in no case no more than six 
months after determination of the existence of a safety violation or 
certification from the Commissioner of Health and Senior Services of a 
health violation. (N.J.S.A., Section 34:6A-35 and -41.)
    The New Jersey State plan (pp. 87-90) provides that when an 
inspection of an establishment has been made, and the Commissioner of 
Labor has issued an order to comply, the employer shall post such order 
or a copy thereof at or near each location of the violation cited in 
the order so that it is clearly visible to affected employees. The 
Commissioner must make such order available to employee 
representatives, affected employees and the public. A written citation 
(Order to Comply) will be issued, citing the sections of the law, 
standards, rules or regulations alleged to be violated, the location of 
the violation, the abatement period, posting requirements and will also 
include the employer's and employee's right to contest any or all 
orders.
    Although the State Plan does not provide for first instance 
sanctions, it does provide for monetary penalties for failures-to-abate 
and willful and repeated violations. The State Act (N.J.S.A., Section 
34:6A-41(d)) provides that if the time for compliance with an order has 
elapsed, and the employer has not contested and has not made a good 
faith effort to comply, the Commissioner of Labor shall impose a civil 
administrative penalty of up to $7,000 per day for each violation. In 
addition, any employer who willfully or repeatedly violates the 
requirements of any standard, rule, order or regulation shall be 
assessed a civil administrative penalty of up to $70,000 for each 
violation. Penalties may be recovered with costs in a civil action 
commenced by the Commissioner by a summary proceeding under the Penalty 
Enforcement Law. (N.J.S.2A:58-1 et seq.) The State has given an 
assurance that it will adopt appropriate penalty procedures that will 
include gravity-based penalties (severity and probability) as well as 
penalty adjustment factors (size, history, and good faith) as a part of 
its developmental step commitment to adopt amendments to regulations 
regarding inspections, citations, and proposed penalties equivalent to 
29 CFR 1903 within one year after state plan approval. Specific 
regulations and detailed procedures on compliance orders, abatement and 
sanctions will be submitted by New Jersey in accordance with its 
developmental schedule. (New Jersey State plan, pp. 96-96.)
    (h) Contested Cases. A State plan must have authority and 
procedures for employer contest of violations alleged by the State, 
penalties/sanctions 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 
1956.11(c)(2)(xi)).
    The State Act provides that any employer, employee or employee 
representative affected by a determination of the Commissioner of Labor 
may file with the Commissioner, within fifteen working days of the 
issuance of an order to comply, a notice to contest any provision of 
the order. (N.J.S.A. Sections 34:6A-36, 41 and N.J.A.C. 12:110-4.13.) 
The Commissioner must immediately advise the Occupational Safety and 
Health Review Commission of the notification and the Commission will 
afford an opportunity for a hearing. The Review Commission will issue 
an order, based on a finding of fact, affirming, modifying, or vacating 
the Commissioner's order to comply or the proposed penalty, or 
directing other appropriate relief, and the order shall become final 45 
days after its issuance. (N.J.S.A. 34:6A-42) N.J.A.C. 12:110, 
establishes the opportunity for the Commissioner of Labor to hold an 
informal conference. Such a conference would be for the purpose of 
discussing any issue raised by an inspection, order to comply, a notice 
of proposed penalty, or notice of intention to contest. No such 
conference or request for such conference will serve as a stay of any 
15 working day period for filing a notice of intention to contest as 
prescribed in N.J.A.C. 12:110-4.14. Appeals from decisions of the 
Review Commission are to the Appellate Division of the Superior Court. 
(N.J.S.A. 34:6A-43)
    (i) Enforcement Conclusion. Accordingly, OSHA finds that the 
enforcement provisions of the New Jersey State plan as described above 
meet or will meet the statutory and regulatory requirements for initial 
State plan approval.

6. Staffing and Resources

    Section 18(c)(4) of the OSH Act requires State plans to provide the 
qualified personnel necessary for the enforcement of standards. In 
accordance with 29 CFR 1956.10(g), one factor which OSHA must consider 
in considering a plan for initial approval is whether the State has or 
will have a sufficient number of adequately trained and competent 
personnel to discharge its responsibilities under the plan.
    The New Jersey State plan (pp. 150-154) provides assurances of a 
fully trained, adequate staff, including 20 safety and 7 health 
compliance officers for enforcement inspections, and 4 safety and 3 
health consultants to perform consultation services in the public 
sector, and 2 safety and 3 health training and education staff. The 
compliance staffing requirements (or benchmarks) for State plans 
covering both the private and public sectors are established based on 
the ``fully effective'' test established in AFL-CIO v. Marshall, 570 
F.2d 1030 (D.C. Cir., 1978). This staffing test, and the formula used 
to derive benchmarks for complete private/public sector plans, is not 
intended, nor is it appropriate, for application to the staffing needs 
of public employee only plans. However, the State has given 
satisfactory assurance (New Jersey State plan, p.156) that it will meet 
the staffing requirements of 29 CFR 1956.10.
    Section 18(c)(5) of the OSH Act requires that the State plan devote 
adequate funds to administration and enforcement of its standards (29 
CFR 1956.10(h)). New Jersey has funded its public employee occupational 
safety and health program since 1984 solely utilizing State funds. The 
State plan will be funded at $5,118,360 ($1,771,000 Federal 50% share; 
$1,771,000 State 50% matching share; $1,576,360 100% State funds) 
during federal fiscal year 2001.
    Accordingly, OSHA finds that the New Jersey State plan has provided 
for sufficient, qualified personnel and adequate funding for the 
various activities to be carried out under the plan.

7. 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 OSH Act). Under a public employee State plan, 
public employers must maintain records and

[[Page 2271]]

make reports on occupational injuries and illnesses in a manner similar 
to that required of private sector employers under the OSH Act and (29 
CFR 1956.10(i)). The plan must also provide assurances 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 OSH Act and 29 CFR 1956.10(j)).
    New Jersey has provided assurance in its State plan (pp. 139-144) 
that all jurisdictions covered by the State plan will maintain valid 
records and make timely reports on occupational injuries and illnesses 
as required for private employers under the OSH Act. Specific 
regulations on this aspect of the State plan will be submitted by New 
Jersey in accord with its developmental schedule in which the State has 
agreed to adopt amendments to regulations regarding recordkeeping 
equivalent to 29 CFR part 1904 within two years after state plan 
approval. Current State recordkeeping regulations, at N.J.A.C. 12:110-
5., infer that employees' names may be considered confidential. As this 
conflicts with the Federal requirement at 29 CFR 1904.7 which provides 
for full access to the OSHA Log including Column C, ``Employee's 
Name,'' for compliance staff, employees, former employees and employee 
representatives, the State has provided assurance that it will comply 
with Sec. 1904.7 upon plan approval and will amend its regulation 
accordingly. (New Jersey State Plan, p. 140)
    New Jersey has also provided assurance in its State plan (pp. 144 
and 148) that it will continue its participation in the Bureau of Labor 
Statistics Annual Survey of Injuries and Illnesses (for the private 
sector) and will similarly continue its statistical survey of the 
public sector under its approved plan. The New Jersey State plan also 
contains assurances that it will provide reports to OSHA in the desired 
form and participate in OSHA's Integrated Management Information 
System. (New Jersey State plan, pp. 145-148)
    OSHA finds that the New Jersey State plan has met the requirements 
of section 18(c)(7) and (8) of the OSH Act on employer and State 
reports to the Secretary.

8. Voluntary Compliance Program

    A State plan must undertake programs to encourage voluntary 
compliance by employers by such means as conducting training and 
consultation with employers and employees (29 CFR 1956.11(c)(2)(xii)).
    The New Jersey State plan (pp.125-130) provides that the State 
Labor and Health Departments will include voluntary compliance as an 
essential component of its program. Training will be provided to public 
employers and employees; seminars will be conducted to familiarize 
affected individuals with OSHA standards and requirements, and safe 
work practices; and, an on-site consultation program in the public 
sector parallel to New Jersey State's existing private sector on-site 
consultation program (under section 21(d) of the OSH Act) will be 
established. The public employee consultation program will have both 
safety and health consultants available to employers who request such 
service. All State agencies and political subdivisions will also be 
encouraged to develop and maintain self-inspection programs and to 
develop internal safety and health programs in accordance with the 
State public employee safety and health program guidelines. The State 
has committed under its developmental schedule to fully implement 
public employer/employee consultation, training and education program 
equivalent to 29 CFR part 1908 within three years after state plan 
approval.
    OSHA finds that the New Jersey State plan provides for the 
establishment and administration of an effective voluntary compliance 
program.

E. Decision

    OSHA, after carefully reviewing the New Jersey State plan for the 
development and enforcement of State standards applicable to State and 
local government employees and the record developed during the above 
described proceedings, has determined that the requirements and 
criteria for initial approval of a developmental plan have been met. 
The plan is hereby approved as a developmental plan under section 18 of 
the Act and 29 CFR part 1956. This decision incorporates the 
requirements of the Act and of regulations applicable to State plans 
generally.
    The initial approval of a State plan for public employees in New 
Jersey is not a significant regulatory action as defined in Executive 
Order 12866.

F. Regulatory Flexibility Act

    OSHA certifies pursuant to the Regulatory Flexibility Act of 1980 
(5 U.S.C. 601 et seq.) that the proposed initial approval of the New 
Jersey State Plan will not have a significant economic impact on a 
substantial number of small entities. By its own terms, the plan will 
have no effect on private sector employment, but is limited to the 
State and its political subdivisions. Moreover, the New Jersey 
legislation has been in effect since 1984, when the State first 
established a safety and health program for State and local government 
employees. Since that time, the New Jersey program has been in 
operation with State funding and most public sector employers in the 
State, including small units of local government, have been subject to 
its terms. Compliance with State OSHA standards is required by State 
law; Federal approval of a State plan imposes regulatory requirements 
only on the agency responsible for administering the State plan. 
Accordingly, no new obligations would be placed on public sector 
employers as a result of Federal approval of the plan.

G. 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 consulted 
extensively with New Jersey throughout the development, submission and 
consideration of its proposed State plan. Although OSHA has determined 
that the requirements and consultation procedures provided in Executive 
Order 13132 are not applicable to initial approval decisions under the 
Act, which have no effect outside the particular State receiving the 
approval, OSHA has reviewed the New Jersey initial approval decision 
proposed today, and believes it is consistent with the principles and 
criteria set forth in the Executive Order.

H. List of Subjects in 29 CFR PART 1956

    Intergovernmental relations, Law enforcement, Occupational Safety 
and Health, Reporting and recordkeeping requirements.

I. Effective Date January 11, 2001

    OSHA's decision granting initial Federal approval to the New Jersey 
State plan for public employees only is effective January 11, 2001. The 
program described in the plan has been in effect for many years and no 
immediate modifications of the program are required by today's 
decision. Federal 50% matching funds have been explicitly provided in 
the Department of Labor's FY 2001 appropriation. Notice of proposed 
initial approval of the plan was published both in the Federal Register 
and in several newspapers throughout the State with requests for 
comment. No comments opposing initial approval of the plan were 
received, and OSHA believes that no

[[Page 2272]]

party is adversely affected by initial approval of the plan. OSHA 
therefore finds, pursuant to section 553(d) of the Administrative 
Procedures Act, that good cause exists for making Federal approval of 
the New Jersey Public Employee Only State plan effective upon 
publication in the Federal Register.

J. Authority

    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 parts 1902 and 1956, and Secretary of Labor's Order No. 3-
2000 (65 FR 50017).

    Signed at Washington, D.C. this 4th of January, 2000.
Charles N. Jeffress,
Assistant Secretary of Labor.

    For the reasons set out in the preamble, 29 CFR Part 1956 is hereby 
amended by adding a new Subpart G as follows:
Subpart G--New Jersey
Sec.
1956.60   Description of the plan as initially approved.
1956.61   Developmental schedule.
1956.62   Completion of developmental steps and certification. 
[Reserved]
1956.63   Determination of operational effectiveness. [Reserved]
1956.64   Location of plan for inspection and copying.

Subpart G--New Jersey

    Authority: Section 18 of the OSH Act, (29 U.S.C. 667), 29 CFR 
Part 1902, 29 CFR 1956, and Secretary of Labor's Order No. 3-2000 
(65 FR 50017).


Sec. 1956.60  Description of the plan as initially approved.

    (a) Authority and scope. The New Jersey State Plan for Public 
Employee Occupational Safety and Health received initial OSHA approval 
on January 11, 2001. The plan designates the New Jersey Department of 
Labor as the State agency responsible for administering the plan 
throughout the State. The plan includes enabling legislation, Public 
Employees Occupational Safety and Health Act of 1995 (N.J.S.A. 34:6A-25 
et seq.), enacted in 1984, and amended on July 25, 1995. Under this 
legislation, the State Commissioner of Labor has full authority to 
enforce and administer all laws and rules protecting the safety and 
health of all employees of the State and its political subdivisions 
under the Public Employee Occupational Safety and Health program 
(PEOSH). The Commissioner of Health and Senior Services has authority 
for occupational health matters including the authority to conduct 
health inspections, investigations and related activities. However, all 
standards adoption and enforcement authority for both occupational 
safety and health remain the responsibility of the New Jersey 
Department of Labor.
    (b) Standards. New Jersey has adopted State standards identical to 
OSHA occupational safety and health standards promulgated as of 
December 7, 1998, with differences only in its hazard communication and 
fire protection standards. The State plan includes a commitment to 
bring those two (2) standards into conformance with OSHA requirements 
and to update all standards within one year after plan approval. The 
State plan also provides that future OSHA standards and revisions will 
be adopted by the State within six (6) months of Federal promulgation, 
in accordance with 29 CFR 1953.21. Any emergency temporary standards 
will be adopted within 30 days of Federal adoption. The State will 
adopt Federal OSHA standards in accordance with the provisions of New 
Jersey statute, N.J.S.A. 52:14B-5; Federal standards shall be deemed to 
be duly adopted as State regulations upon publication by the 
Commissioner of Labor. The plan also provides for the adoption of 
alternative or different occupational safety and health standards by 
the Commissioner of Labor in consultation with the Commissioner of 
Health and Senior Services, the Commissioner of Community Affairs, and 
the Public Employee Occupational Safety and Health Advisory Board, 
where no Federal standards are applicable to the conditions or 
circumstances or where standards more stringent than the Federal are 
deemed advisable.
    (c) Variances. The plan includes provisions for the granting of 
permanent and temporary variances from State standards in terms 
substantially similar to the variance provisions contained in the OSH 
Act. The State provisions require employee notification of variance 
applications as well as employee rights to participate in hearings held 
on variance applications. Variances may not be granted unless it is 
established that adequate protection is afforded employees under the 
terms of the variance. The State has committed to amend its current 
variance procedures at N.J.A.C. 12:110-6 to bring them into conformance 
with Federal procedures at 29 CFR Part 1905 within two years after 
state plan approval.
    (d) Employee notice and discrimination protection. The plan 
provides for notification to employees of their protections and 
obligations under the plan by such means as a State poster, and 
required posting of notices of violations. The plan also provides for 
protection of employees against discharge or discrimination resulting 
from exercise of their rights under the State's Act in terms similar to 
section ll(c) of the OSH Act. However, employees have 180 days to file 
complaints of discrimination with the Commissioner of Labor; and the 
Commissioner is authorized to both investigate and order all 
appropriate relief. The monetary penalty for repeated violations (up to 
$70,000 per violation) may also be applicable to repeated employer acts 
of discrimination.
    (e) Inspections and enforcement. The plan provides for inspection 
of covered workplaces including inspections in response to employee 
complaints, by both the Department of Labor, and by the Department of 
Health and Senior Services with regard to health issues. If a 
determination is made that an employee complaint does not warrant an 
inspection, the complainant shall be notified, in writing, of such 
determination and afforded an opportunity to seek informal review of 
the determination. The plan also provides the opportunity for employer 
and employee representatives to accompany the inspector during an 
inspection for the purpose of aiding in the inspection. Employee(s) 
accompanying an inspector are entitled to normal wages for the time 
spent during the inspection. The plan also provides for right of entry 
for inspection and prohibition of advance notice of inspection. The 
Commissioner of Labor is responsible for all enforcement actions 
including the issuance of citations/Orders to Comply which must also 
specify the abatement period, posting requirements and the employer's 
and employee's right to contest any or all orders. Although the plan 
does not provide for initial (first instance) monetary sanctions, the 
Commissioner of Labor has the authority to impose civil administrative 
penalties of up to $7,000 per day for each violation, for failure to 
abate, if the time for compliance with an order has elapsed, and the 
employer has not contested and has not made a good faith effort to 
comply. Willful or repeated violations also are subject to civil 
administrative penalties of up to $70,000 for each violation. Penalties 
may be recovered with costs in a civil

[[Page 2273]]

action brought under the New Jersey Penalty Enforcement Act 
(N.J.S.2A.:58-1 et seq.)
    (f) Review procedures. Under the plan, employers, employees and 
other affected parties may seek informal review with the Department of 
Labor relative to a notice of violation/Order to Comply, the 
reasonableness of the abatement period, any penalty and/or may seek 
formal administrative review with the Occupational Safety and Health 
Review Commission, a board appointed by the Governor and authorized 
under section 34:6A.42 of the New Jersey Act to hear and rule on 
appeals of orders to comply and any penalties proposed. Any employer, 
employee or employee representative affected by a determination of the 
Commissioner may file a contest within fifteen (15) working days of the 
issuance of an order to comply. The Review Commission will issue an 
order, based on a finding of fact, affirming, modifying, or vacating 
the commissioner's order to comply or the proposed penalty, or 
directing other appropriate relief, and the order shall become final 45 
days after its issuance. Judicial review of the decision of the Review 
Commission may be sought at the Appellate Division of the Superior 
Court.
    (g) Staffing and Resources. The plan further provides assurances of 
a fully trained, adequate staff, including 20 safety and 7 health 
compliance officers for enforcement inspections, and 4 safety and 3 
health consultants to perform consultation services in the public 
sector, and 2 safety and 3 health training and education staff. The 
State has assured that it will continue to provide a sufficient number 
of adequately trained and qualified personnel necessary for the 
enforcement of standards as required by 29 CFR 1956.10. The State has 
also given satisfactory assurance of adequate funding to support the 
plan.
    (h) Records and reports. The plan provides that public employers in 
New Jersey will maintain appropriate records and make timely reports on 
occupational injuries and illnesses in a manner substantially identical 
to that required for private sector employers under Federal OSHA. New 
Jersey has assured that it will continue its participation in the 
Bureau of Labor Statistics Annual Survey of Injuries and Illnesses with 
regard to both private and public sector employers. The State will 
comply with the provisions of 29 CFR 1904.7 which allows full employee 
and employee representative access, including employee's names, to the 
log of workplace injuries and illnesses; and will amend its regulations 
accordingly. The plan also contains assurances that the Commissioner of 
Labor will provide reports to OSHA in such form as the Assistant 
Secretary may require, and that New Jersey will participate in OSHA's 
Integrated Management Information System.
    (i) Voluntary compliance programs. The plan provides that training 
will be provided to public employers and employees; seminars will be 
conducted to familiarize affected individuals with OSHA standards, 
requirements and safe work practices; an on-site consultation program 
in the public sector will be established to provide services to public 
employers who so desire; and, all State agencies and political 
subdivisions will be encouraged to develop and maintain self inspection 
programs as well as internal safety and health programs as an adjunct 
to but not a substitute for the Commissioner of Labor's enforcement.


Sec. 1956.61  Developmental Schedule.

    The New Jersey State plan is developmental. The following is a 
schedule of major developmental steps as provided in the plan:
    (a) Adopt standards identical to or at least as effective as all 
existing OSHA standards within one year after plan approval.
    (b) Adopt amendments to regulations regarding inspections, 
citations, and proposed penalties equivalent to 29 CFR part 1903 within 
one year after plan approval.
    (c) Develop a five year strategic plan within two years after plan 
approval.
    (d) Develop field inspection reference manual and/or field 
operations manual within two years after plan approval.
    (e) Fully implement public employer/employee consultation, training 
and education program equivalent to 29 CFR part 1908 within three years 
after plan approval.
    (f) Adopt amendments to regulations regarding discrimination 
against employees equivalent to 29 CFR part 1977 within two years after 
plan approval.
    (g) Adopt amendments to regulations regarding variances equivalent 
to 29 CFR part 1905 within two years after plan approval.
    (h) Adopt amendments to regulations regarding record keeping 
equivalent to 29 CFR part 1904 within two years after plan approval.


Sec. 1956.62  Completion of developmental steps and certification. 
(Reserved).


Sec. 1956.63  Determination of operational effectiveness. (Reserved).


Sec. 1956.64  Location of plan for inspection and copying.

    A copy of the plan may be inspected and copied during normal 
business hours at the following locations: Office of State Programs, 
U.S. Department of Labor, Occupational Safety and Health 
Administration, 200 Constitution Avenue, N.W., Room N-3700, Washington, 
D.C. 20210; Office of the Regional Administrator, U.S. Department of 
Labor, Occupational Safety and Health Administration, 1201 Varick 
Street, Room 670, New York, New York 10014; and New Jersey Department 
of Labor, Division of Public Safety and Occupational Safety and Health, 
Office of Public Employees' Safety, P.O. Box 386, 225 East State 
Street, 8th Floor West, Trenton, New Jersey 08625-0386.

[FR Doc. 01-684 Filed 1-10-01; 8:45 am]
BILLING CODE 4510-26-P