North Carolina State Plan; Suspension of Limited Concurrent Federal Enforcement

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

North Carolina State Plan; Suspension of Limited Concurrent

Federal Enforcement

AGENCY: Department of Labor, Occupational Safety and Health

Administration (OSHA).

ACTION: Final rule; notice of suspension of concurrent Federal

enforcement.

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SUMMARY: This document announces OSHA's suspension of its exercise of

concurrent Federal enforcement authority in North Carolina. Federal

enforcement authority will be exercised only with regard to those

issues not covered by the State plan and in specific areas defined in

this document under ``Level of Federal Enforcement.''

EFFECTIVE DATE: March 7, 1995.

FOR FURTHER INFORMATION CONTACT:

Richard Liblong, Director, Office of Information and Consumer Affairs,

Occupational Safety and Health Administration, U.S. Department of

Labor, room N3647, 200 Constitution Avenue NW., Washington, DC 20210,

(202) 219-8148.

SUPPLEMENTARY INFORMATION:

A. Background

Section 18 of the Occupational Safety and Health Act of 1970, 29

U.S.C. 667, provides that States which wish to assume responsibility

for developing and enforcing their own occupational safety and health

standards, may do so by submitting, and obtaining Federal approval of,

a State plan. State plan approval occurs in stages which include

initial approval under section 18(b) of the Act and, ultimately, final

approval under section 18(e). In the interim, between initial approval

and final approval, there is a period of concurrent Federal/State

jurisdiction within a State operating an approved plan. See 29 CFR

1954.3 for guidelines and procedures.

The North Carolina 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 26, 1973 (38 FR 3041), and certified by OSHA

as having completed all of its developmental steps on October 5, 1976

(41 FR 43896). On February 20, 1975, OSHA and the State of North

Carolina entered into an Operational Status Agreement which suspended

the exercise of Federal concurrent enforcement authority in all except

specifically identified areas. (See 40 FR 16843).

On September 3, 1991, a tragic fire occurred at the Imperial Food

Products chicken processing plant in Hamlet, North Carolina, which

resulted in the deaths of 25 workers. In response to that event OSHA

understood a comprehensive reevaluation of the performance of the North

Carolina State Plan and a special evaluation of all other State Plans.

On October 24, 1991 (56 FR 55192) OSHA reasserted concurrent Federal

enforcement jurisdiction in North Carolina with respect to all

currently pending and new complaints of discrimination filed either

with OSHA or the State; all complaints of unsafe or unhealthful working

conditions brought to OSHA's attention on or after October 24, 1991 by

employees or referred by others; and referrals from the North Carolina

Governor's 800 ``Safety Line''. This action was responsive to the

State's request for assistance. Upon further request, on March 31,

1992, (57 FR 10820) OSHA extended its jurisdiction to include all as

yet uninvestigated workplace complaints filed with the State as of

March 20, 1992.

Congressional oversight hearings were held on the Hamlet fire and

the AFL-CIO, on September 11, 1991, petitioned the Assistant Secretary

to withdraw approval of the North Carolina State Plan. (See September

30, 1991, 56 FR 49444, Request for Public Comment and January 16, 1992,

57 FR 1889, extension of the comment period and announcement of the

availability of a Special Evaluation report on North Carolina.) On

January 7, 1992, OSHA issued a Special Evaluation report on North

Carolina finding significant deficiencies and giving the State 90 days

to take corrective action. On April 23, 1992, OSHA determined that the

State's response to the Special Evaluation findings was insufficient

and gave North Carolina 45 days to show cause why plan withdrawal

action should not be initiated. Fully satisfactory assurances the

necessary corrective action would be undertaken were received in June

1992.

Since that date, North Carolina has made substantive and

significant modifications to its program. Major modifications were made

to the State's occupational safety and health program enabling

legislation; State funding and staffing were increased. The State now

has the inspection resources necessary to provide effective worker

protection in the State and has addressed all of the deficiencies

identified as a result of OSHA's 1991 Special Evaluation Report. The

State increased its allocated enforcement staff to 115 (64 safety and

51 health) and trained its new compliance officers in accord with the

schedule outlined in the State's June 1992 corrective action

commitments. (On-board compliance staffing totals 104--61 safety and 43

health as of February 1, 1995.) North Carolina resumed responsibility

for all discrimination complaints effective July 1, 1992, as a result

of enactment of legislation creating the Workplace Retaliatory

Discrimination (WORD) Division, selection and training of dedicated

staff, and revision of its discrimination manual to be comparable

[[Page 12417]] to OSHA's. The State has no appreciable backlog of

workplace complaints and is conducting programmed inspection. These and

others actions have also resolved all issues raised in the AFL-CIO's

petition for withdrawal of approval of the North Carolina State Plan.

OSHA has issued three evaluation reports on North Carolina's

performance since the Special Evaluation. All have documented

continuing improvement and indicate that the program is now operating

in a more than acceptable manner with an outstanding commitment to

necessary enforcement as well as creative outreach and other voluntary

compliance activities.

As a result of these actions, OSHA was prepared to suspend its

exercise of concurrent Federal jurisdiction in North Carolina by mid-

1994. However, two initiatives that the State had undertaken were

brought to OSHA's attention as potential problems--the conditions

attendant to the establishment of a joint Ergonomics Center with North

Carolina State University; and an amendment to State law establishing a

two-step contest procedure as a means of expediting review of contested

cases and achieving more timely abatement of hazards. Both of these

issues have now been resolved. The ergonomics program has been revised

to eliminate any possibility or perception that inspection or citation

exemption could result from employer participation in the Ergonomics

Center program. The informal conference procedures have been revised

through an internal operating procedure and a proposed regulation to

specify that any informal conference resulting from the contest process

must be held within 20 days.

B. Decision

Based on the foregoing, OSHA has determined that the exercise of

concurrent Federal enforcement jurisdiction is no longer warranted, and

it is hereby suspended. Federal enforcement authority will be exercised

only with regard to those issues not covered by the State and in

specific areas defined in the following modification to 29 CFR 1952.155

``Level of Federal Enforcement.''

OSHA has similarly determined that no further action is necessary

or appropriate with regard to the AFL-CIO petition for North Carolina

plan withdrawal. This does not preclude the resubmission of a petition

at any time on substantive issues of State Plan structure or

performance.

List of Subjects in 29 CFR Part 1952

Intergovernmental relations, Law enforcement, Occupational safety

and health.

Accordingly, 29 CFR 1952.155 is amended as set forth below.

Signed in Washington, DC, this 28th day of February 1995.

Joseph A. Dear,

Assistant Secretary.

PART 1952--[AMENDED]

1. The authority citation for 29 CFR part 1952 continues to read as

follows:

Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR part

1902, Secretary of Labor's Order No. 1-90 (55 FR 9033).

2. Section 1952.155 of part 1952, subpart I--North Carolina is

revised to read as follows:

Subpart I--North Carolina

Sec. 1952.155 Level of Federal enforcement.

Pursuant to Sec. 1902.20(b)(1)(iii), discretionary Federal

enforcement authority under Section 18(e) of the Act (29 U.S.C. 667(e))

will not be initiated with regard to Federal occupational safety and

health standards in issues covered under 29 CFR part 1910, 29 CFR part

1926, and 29 CFR part 1928. The U.S. Department of Labor will continue

to exercise authority, among other things, with regard to: complaints

filed with the U.S. Department of Labor alleging discrimination under

Section 11(c) of the Act (29 U.S.C. 660(c)); enforcement with respect

to private sector maritime activities, including enforcement of all

provisions of the Act, rules or orders and all Federal standards,

current or future, applicable to private sector maritime employment

including 29 CFR part 1915, shipyard employment (including boat

building establishments in SIC 3732 located on the navigable waters and

all establishments in SIC 3731); 29 CFR part 1917, marine terminals; 29

CFR part 1918, longshoring (including all private sector and Federal

sector marine cargo handling establishments or operations in SIC 4491

located within the State of North Carolina), 29 CFR part 1919, gear

certification; all marinas in SIC 4493 located on the navigable waters;

enforcement of marine construction activities on the navigable waters

which are not directly accessible by land; and, enforcement of general

industry and construction standards (29 CFR parts 1910 and 1926)

appropriate to hazards found in these employments, which issues have

been specifically excluded from coverage in the North Carolina plan;

the enforcement of occupational safety and health standards on Indian

reservations; enforcement relating to any contractors or subcontractors

on any Federal establishment where the land has been ceded to the

Federal Government; enforcement on military bases; enforcement of new

Federal standards until the State adopts a comparable standard;

situations where the State is refused entry and is unable to obtain a

warrant or enforce the right of entry; enforcement of unique and

complex standards as determined by the Assistant Secretary; enforcement

in situations where the State is temporarily unable to exercise its

enforcement authority fully or effectively; completion of enforcement

actions initiated prior to the effective date of this notice; and

investigations for the purpose of the evaluation of the North Carolina

plan under sections 18 (e) and (f) of the Act (29 U.S.C. 667 (e) and

(f)). The Regional Administrator for Occupational Safety and Health

will make a prompt recommendation for the resumption of the exercise of

Federal enforcement authority under section 18(e) of the Act (29 U.S.C.

667(e)) whenever, and to the degree, necessary to assure occupational

safety and health protection to employees in North Carolina.

[FR Doc. 95-5504 Filed 3-6-95; 8:45 am]

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