Approved State Plans for Enforcement of State Standards; Approval of Supplements to the Nevada State Plan

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

Approved State Plans for Enforcement of State Standards; Approval

of Supplements to the Nevada State Plan

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Approval of supplements to the Nevada State Plan.

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SUMMARY: This document gives notice of Federal approval of supplements

to the Nevada State occupational safety and health plan. These

supplements are: Nevada's procedure for issuance of notices of

violation in lieu of citations in certain situations; amendments to the

Nevada Occupational Safety and Health Act enacted in 1981, 1989 and

1993; the Nevada Field Operations Manual; the Nevada Training and

Consultation Section Policies and Procedures Manual; the Nevada

Occupational Safety and Health Administration Technical Manual; and a

regulation concerning pre-construction conferences.

EFFECTIVE DATE: August 24, 1995.

FOR FURTHER INFORMATION CONTACT:

Director, Office of Information and Consumer Affairs, Occupational

Safety and Health Administration, Room N3647, 200 Constitution Avenue,

N.W., Washington, D.C. 20210. Telephone: (202) 523-8148.

SUPPLEMENTARY INFORMATION:

Background

The Nevada Occupational Safety and Health Plan was approved under

section 18(c) of the Occupational Safety and Health Act of 1970 (29

U.S.C. 667(c)) (hereinafter referred to as the Act) and Part 1902 of

this chapter on January 4, 1974 (39 FR 1008). Part 1953 of this chapter

provides procedures for the review and approval of State change

supplements by the Assistant Secretary of Labor for Occupational Safety

and Health (hereinafter referred to as the Assistant Secretary).

Description of Supplements

A. Notices of Violation

On October 29, 1980, the State submitted a procedure for issuing

notices of violation in lieu of citations for certain other than

serious violations. In order to expedite inspections and concentrate

resources on serious violations, compliance officers may issue notices

of violation for other than serious violations for which monetary

penalties would not be proposed. If the employer agrees to abate the

violation and not to file a contest, the compliance officer will issue

the notice on-site. For serious, willful, repeat and/or failure to

abate violations, citations continue to be issued in accordance with

established procedures.

Review of the supplement raised several issues which needed to be

resolved before approval of the notice of violation procedure. Because

the Nevada Occupational Safety and Health Act required that citations

be issued where violations were identified, statutory authority for

issuance of notices was necessary. In 1981, Sec. 618.465(1)(b) was

added to the State's law, allowing for a notice in lieu of a citation

for violations which are not serious and which the employer agrees to

correct within a reasonable time.

There was also concern that a notice be able to serve as the basis

for a future willful, repeat, or failure to abate citation, and that

documentation of the violations for which the notice was issued be

adequate to serve as the basis for such a citation. The State amended

its enforcement regulations to provide that for future proceedings

involving a repeat, willful, or failure to abate violation, the notice

of violation shall have the same effect as if a citation has originally

been issued and become a final order (section 618.6458(9)) and that

notices of violations contain all the provisions required for citations

(section 618.6458(6)). In addition, the State was asked to ensure that

if it is learned following the inspection that a violation for which a

notice of violation has been issued is actually a repeat violation, a

citation for a repeat violation would be issued. Section 618.6458 of

the State's enforcement regulations now provides that a citation may be

issued even if a notice has already been issued, and the State's Field

Operations Manual directs the compliance officer to check for previous

violations upon returning to the office. Finally, the right of

employees to contest the reasonableness of the abatement period needed

to be established. The State's enforcement regulations

(Sec. 618.6458(6)) now provide that the notice shall inform employees

of their right to contest the abatement period. Based on these changes

made by the State, the notice of violation procedure is now deemed

approvable.

B. Amendments to Nevada Occupational Safety and Health Act

In 1981, 1989 and 1993, the State enacted amendments to its

Occupational Safety and Health Act. The 1981 amendments, submitted as a

plan supplement on July 10, 1981, made the following changes:

(1) As discussed above, Sec. 618.465(1)(b) was added to allow the

State to issue a notice in lieu of a citation for violations which are

not serious and which the employer agrees to correct within a

reasonable time.

(2) Section 618.415 was revised to delete the legislative authority

for temporary variances for other than new standards. As in the Federal

program, temporary variances may now only be granted from new

standards.

(3) Section 618.585(2) was added to allow the Nevada Occupational

Safety and Health Appeals Board to employ legal counsel.

(4) Section 618.625(3) was amended to streamline penalty collection

procedures by allowing collection actions to be brought in any court of

competent jurisdiction, rather than only the district court.

(5) Section 618.367 was amended to ensure confidentiality to

employees making statements to the Division of Occupational Safety and

Health, as well as those filing complaints. This section was

extensively revised in 1989, as discussed below.

The 1989 amendments, submitted as a plan supplement on October 17,

1989, made the following changes:

(1) Section 618.336 requires the maintenance of specific logs

relating to complaints received concerning occupational safety and

health violations and their outcomes.

(2) Section 618.341 provides public access to records on

complaints, except for confidential information.

(3) Section 618.341(3) provides confidentiality for those employees

who file complaints or make statements, even when confidentiality is

not specifically requested, as well as for files relating to open

cases.

(4) Section 618.370 was amended to clarify that representatives of

employees and former employees are entitled to access to any records in

the possession of their employers or former employers which indicate

their exposure to toxic materials or harmful physical agents.

``Representative of an employee or former employee'' is defined as an

authorized representative of the employee bargaining unit, an attorney,

a spouse, parent or child, or a person designated by a court.

(5) Section 618.425 was amended to add health care providers, and

government employees whose primary duty is to ensure public safety,

such as building inspectors, to those who may file complaints of

hazardous working conditions.

(6) Section 618.425 was also amended to allow for oral as well as

written complaints, and to require the division to respond to valid

complaints of serious violations immediately and of other violations

within 14 days.

(7) Section 618.435 provides that an employee who accompanies a

compliance officer on the inspection is entitled to be paid for the

time spent, but that only one employee may accompany the compliance

officer during the inspection.

(8) Section 618.545 was amended to allow the Administrator of the

Nevada Division of Occupational Safety and

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Health to issue an emergency order to restrain an imminent danger

situation.

(9) All maximum monetary penalties in sections 618.645 through

618.705 were doubled. At the time of their enactment, these statutory

penalty levels were higher than those contained in the Federal Act. (In

1991, statutory maximum penalties for violations of the State Act were

raised again. That increase was approved by OSHA on March 15, 1994 (59

FR 14556).)

The 1993 amendments, submitted on October 27, 1993, reflect a

reorganization of the Nevada State government. The previous Division of

Enforcement for Industrial Safety and Health and Division of Preventive

Safety are now sections in the Division of Industrial Relations of the

Department of Business and Industry.

C. Field Operations Manual

On December 14, 1989, Nevada submitted its Field Operations Manual

in response to a revised Federal Field Operations Manual (CPL 2.45B).

The State has submitted revisions to this manual on May 31, 1991, July

5, 1991, December 15, 1992 and June 13, 1994, in response to Changes 1

through 4 of the Federal manual. The Nevada Field Operations Manual is

comparable to the Federal manual and has been found to be at least as

effective as the Federal manual.

D. Consultation Manual

On August 12, 1987, the State submitted its Training and

Consultation Section Policies and Procedures Manual. This manual

includes previously approved sections of the State's Field Operations

Manual on the conduct of consultation visits to employers. In addition,

it incorporates chapters on safety and health program assistance and

training by consultants which are nearly identical (with organization

changes and adapted to the State's program structure) to Part I of the

Federal Consultation Policies and Procedures Manual.

E. Industrial Hygiene Technical Manual

On March 30, 1990, the State submitted notice of its adoption of

the Federal OSHA Technical Manual. The State has incorporated a cover

sheet indicating that the Federal manual has been adopted for State

use, how references to the Federal program in the Federal manual

correspond to the State administrative structure, and how it will be

applied. In addition, on March 6, 1991, June 22, 1993 and December 16,

1994, the State submitted notice of its adoption of Changes 1, 2 and 3

to the Technical Manual. These changes also incorporate updates to the

Federal manual, with appropriate changes to apply to the State's

organizational structure.

F. Pre-construction Conferences

On August 20, 1993, Nevada submitted a temporary regulation

requiring pre-construction conferences with the Division of Industrial

Relations for certain types of construction projects including high

rise, structural steel erection, precast concrete erections, cast in

place structures above ground level, and tilt-up wall construction. At

the conference, the contractor will identify those safety measures

which will be utilized to protect employees working on the project. On

September 8, 1994, Nevada submitted permanent regulations covering pre-

construction conferences.

G. Revised Plan

On October 2, 1992, Nevada submitted a reorganized State plan,

incorporating the plan supplements approved herein as well as

previously approved plan changes and other supplements still under

review.

H. Other Submissions

In addition, on October 17, 1989, the State submitted legislation

enacted in 1989 and implementing regulations concerning the licensing

and registration of asbestos removal projects. The new procedures

require any contractor engaging in asbestos removal work to be licensed

by the Division of Occupational Safety and Health and to meet certain

training and work practice requirements. The licensing program is

administered separately from the Division's occupational safety and

health enforcement program. While these provisions are not part of the

State plan, and thus activities pursuant to them are not eligible for

funding under section 23(g) of the Act, OSHA will monitor these

activities to ensure that they do not detract from the State's ability

to meet its commitments under the plan.

Location of Supplements for Inspection and Copying

A copy of the plan and the supplements may be inspected and copied

during normal business hours at the following locations: Office of the

Regional Administrator, Occupational Safety and Health Administration,

Room 415, 71 Stevenson Street, San Francisco, California 94105;

Director, Division of Occupational Safety and Health, Nevada Division

of Industrial Relations, 1370 South Curry Street, Carson City, Nevada

89710; and the Office of the Director of Federal-State Operations, Room

N3700, 200 Constitution Avenue, N.W., Washington, D.C. 20210.

Public Participation

A notice was published on April 3, 1981 (46 FR 20229), announcing

the submission of the Nevada program for issuance of notices of

violation. Interested persons were afforded 30 days to submit written

comments or request a hearing concerning the supplement. One comment

favoring the program was received.

With regard to the other supplements, under Sec. 1953.2(c) of this

chapter, the Assistant Secretary may prescribe alternative procedures

to expedite the review process or for any other good cause which may be

consistent with applicable law. The Assistant Secretary finds that the

legislative amendments, Field Operations Manual, Consultation Manual,

Industrial Hygiene Technical Manual and regulations concerning pre-

construction conferences are consistent with Federal requirements and

with commitments contained in the plan and previously made available

for public comment. Good cause is therefore found for approval of these

supplements, and further public participation would be unnecessary.

Decision

After careful consideration and extensive review by the Regional

and National Offices, the Nevada plan supplements described above are

found to be in substantial conformance with comparable Federal

provisions and are hereby approved under Part 1953 of this chapter. The

decision incorporates the requirements and implementing regulations

applicable to State plans generally.

List of Subjects in 29 CFR Part 1952

Intergovernmental relations, Law enforcement, Occupational safety

and health.

Signed at Washington, D.C., this 11th day of August, 1995.

Joseph A. Dear,

Assistant Secretary.

Accordingly, 29 CFR Part 1952 is hereby amended as follows:

PART 1952--[AMENDED]

The authority citation for Part 1952 continues to read:

Authority: Secs. 8, 18 Pub. L. 91-596, 84 Stat. 1608

Occupational Safety and Health Act of 1970 (29 U.S.C. 657, 667);

Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR

25059), or 9-83 (48 FR 35736), as applicable.

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2. Paragraphs (b) through (h) are added to Sec. 1952.297 of Subpart

W to read as follows:

Sec. 1952.297 Changes to approved plans.

* * * * *

(b) Notices of violation. The State submitted a procedure for

issuing notices of violation in lieu of citations for certain other

than serious violations which the employer agrees to abate. The

procedure as modified was approved by the Assistant Secretary on August

24, 1995.

(c) Legislation. The State submitted amendments to its Occupational

Safety and Health Act, enacted in 1981, which: provide for notices of

violation in lieu of citations for certain other than serious

violations; delete the authority for temporary variances for other than

new standards; allow the Nevada Occupational Safety and Health Appeals

Board to employ legal counsel; allow penalty collection actions to be

brought in any court of competent jurisdiction; and ensure

confidentiality to employees making statements to the Division of

Occupational Safety and Health. Further amendments, enacted in 1989:

require the maintenance of specific logs relating to complaints;

provide public access to records on complaints, except for confidential

information; provide confidentiality for those employees who file

complaints or make statements, as well as for files relating to open

cases; allow representatives of employees and former employees access

to any records which indicate their exposure to toxic materials or

harmful physical agents; define representative of employees or former

employees; allow health care providers and government employees in the

field of public safety, to file complaints; allow for oral complaints;

require the division to respond to valid complaints of serious

violations immediately and of other violations within 14 days; provide

that an employee who accompanies a compliance officer on the inspection

is entitled to be paid for the time spent, but that only one employee

may accompany the compliance officer during the inspection; allow the

Administrator of the Division of Occupational Safety and Health to

issue an emergency order to restrain an imminent danger situation; and,

double maximum authorized penalty levels. Amendments enacted in 1993

reflect the new State organizational structural by designating the

previous Divisions as sections in the Division of Industrial Relations

of the Department of Business and Industry. The Assistant Secretary

approved these amendments on August 24, 1995.

(d) Field Operations Manual. The State's Field Operations Manual,

comparable to the Federal Field Operations Manual, through Change 4,

was approved by the Assistant Secretary on August 24, 1995.

(e) Consultation Manual. The State's Training and Consultation

Section Policies and Procedures Manual was approved by the Assistant

Secretary on August 24, 1995.

(f) Occupational Safety and Health Administration Technical Manual.

The State's adoption of the Federal OSHA Technical Manual, through

Change 3, with a cover sheet adapting Federal references to the State's

administrative structure, was approved by the Assistant Secretary on

August 24, 1995.

(g) Pre-construction conferences. A State regulations requiring

pre-construction conferences with the Division of Industrial Relations

for certain types of construction projects was approved by the

Assistant Secretary on August 24, 1995.

(h) Reorganized Plan. The reorganization of the Nevada plan was

approved by the Assistant Secretary on August 24, 1995.

[FR Doc. 95-20863 Filed 8-23-95; 8:45 am]

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