North Carolina State Plan; Eligibility for Final Approval Determination; Proposal To Grant an Affirmative Final Approval Determination; Comment Period and Opportunity To Request Public Hearing

DEPARTMENT OF LABOR

29 CFR Part 1952

[Docket No. T-031]

North Carolina State Plan; Eligibility for Final Approval

Determination; Proposal To Grant an Affirmative Final Approval

Determination; Comment Period and Opportunity To Request Public Hearing

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

Department of Labor.

ACTION: Proposed final State plan approval; request for written

comments; notice of opportunity to request informal public hearing.

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SUMMARY: This document gives notice of the eligibility of the North

Carolina State occupational safety and health plan, as administered by

the North Carolina Department of Labor, for determination under section

18(e) of the Occupational Safety and Health Act of 1970 as to whether

final approval of the State plan should be granted.

If an affirmative determination under section 18(e) is made,

Federal standards and enforcement authority will no longer apply to

issues covered by the North Carolina plan. This notice announces that

OSHA is soliciting written public comment regarding whether or not

final State plan approval should be granted, and offers an opportunity

to interested persons to request an informal public hearing on the

question of final State plan approval.

DATES: Written comments or requests for a hearing should must be

received by October 15, 1996.

ADDRESSES: Written comments or requests for a hearing should be

submitted, in quadruplicate, to the Docket Officer, Docket No. T-031,

U.S. Department of Labor, Room N2625 200 Constitution Avenue NW,

Washington. DC 20210, (202) 219-7894.

FOR FURTHER INFORMATION CONTACT: Anne Cyr, Acting 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) 219-8148.

SUPPLEMENTARY INFORMATION:

Background

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

U.S.C. 651, et seq , (the ``Act'') provides that States which desire to

assume responsibility for the development and enforcement of

occupational safety and health standards may do so by submitting, and

obtaining Federal approval of a State plan. Procedures for State Plan

submission and approval are set forth in regulations at 29 CFR Part

1902. If the Assistant Secretary, applying the criteria set forth in

section 18(c) of the Act and 29 CFR 1902.3 and .4, finds that the plan

provides or will provide for State standards and enforcement which are

at least as effective as Federal standards and enforcement, ``initial

approval'' is granted. A State may commence operations under its plan

after this determination is made, but the Assistant Secretary retains

discretionary Federal enforcement authority during the initial approval

period as provided by section 18(e) of the Act. A State plan may

receive initial approval even though, upon submission, it does not

fully meet the criteria set forth in Secs. 1902.3 and 1902.4 if it

includes satisfactory assurances by the State that it will take the

necessary ``developmental steps'' to meet the criteria within a three-

year period (29 CFR 1902.2(b)). The Assistant Secretary publishes a

``certification of completion of developmental steps'' when all of a

State's developmental commitments have been satisfactorily met (29 CFR

1902.34).

When a State plan that has been granted initial approval is

developed sufficiently to warrant a suspension of concurrent Federal

enforcement activity, it becomes eligible to enter into an

``operational status agreement'' with OSHA (29 CFR 1954.3(f)). A State

must have enacted its enabling legislation, promulgated State

standards, achieved an adequate level of qualified personnel, and

established a system for review of contested enforcement actions. Under

these voluntary agreements, concurrent Federal enforcement will not be

initiated with regard to Federal occupational safety and health

standards in those issues covered by the State plan, where the State

program is providing an acceptable level of protection.

Following the initial approval of a complete plan, or the

certification of a developmental plan, the Assistant Secretary must

monitor and evaluate actual operations under the plan for a period of

at least one year to determine, on the basis of actual operations under

the plan, whether the criteria set forth in section 18(c) of the Act

and 29 CFR 1902.37 are being applied.

An affirmative determination under section 18(e) of the Act

(usually referred to as ``final approval'' of the State plan) results

in the relinquishment of authority for Federal concurrent enforcement

jurisdiction in the State with respect to occupational safety and

health issues covered by the plan (29 U.S.C. 667(e)). Procedures for

section 18(e) determinations are found at 29 CFR Part 1902, Subpart D.

In general, in order to be granted final approval, actual performance

by the State must be ``at least as effective'' overall as the Federal

OSHA program in all areas covered under the State plan.

An additional requirement for final approval consideration is that

a State must meet the compliance staffing levels, or benchmarks, for

safety inspectors and industrial hygienists established by OSHA for

that State. This requirement stems from a 1978 Court Order by the U.S.

District Court for the District of Columbia (AFL-CIO v. Marshall, C.A.

No. 74-406), pursuant to a U.S. Court of Appeals decision, that

directed the Assistant Secretary to calculate for each state plan State

the number of enforcement personnel needed to assure a ``fully

effective'' enforcement program.

[[Page 48447]]

The last requirement for final approval consideration is that a

State must participate in OSHA's Integrated Management Information

System (IMIS). This is required so that OSHA can obtain the detailed

program performance data on a State necessary to make an objective

continuing evaluation of whether the State performance meets the

statutory and regulatory criteria for final approval.

History of the North Carolina Plan and of Its Compliance Staffing

Benchmarks

North Carolina Plan

On November 27,1972, North Carolina submitted an occupational

safety and health plan in accordance with section 18(b) of the Act and

29 CFR Part 1902, Subpart C and on December 9, 1972 a notice was

published in the Federal Register (37 FR 26371) concerning the

submission of the plan, announcing that initial Federal approval of the

plan was at issue and offering interested persons 30 days in which to

submit data, views and arguments in writing concerning the plan.

Written comments concerning the plan were submitted on behalf of

the American Federation of Labor and Congress of Industrial

Organizations (AFL-CIO) and the U.S.S. Agri-Chemicals. No other written

comments were received, and no request for an informal hearing was

received.

On February 1, 1973, the Assistant Secretary published a Federal

Register notice (38 FR 3041) granting initial approval of the North

Carolina plan as a developmental plan and adopting Subpart I of Part

1952 containing the decision and describing the plan.

The North Carolina Department of Labor is designated as the agency

having responsibility for administering the plan throughout the State

under the authority of the North Carolina Occupational Safety and

Health Act (S.B. 342, Chapter 295). The plan provides for the adoption

by North Carolina of standards which are ``at least as effective'' as

Federal occupational safety and health standards. In most cases the

State standards are identical to the Federal. The plan requires

employers to furnish employment and place of employment which is free

from recognized hazards that are causing or are likely to cause death

or serious physical harm, and to comply with all occupational safety

and health standards promulgated by the State agency. Employees are

required to comply with all standards and regulations applicable to

their conduct.

The plan contains provisions similar to Federal procedures

governing emergency temporary standards; imminent danger proceedings;

coverage under the general duty clause; variances; safeguards to

protect trade secrets; protection of employees against discrimination

for exercising their rights under the plan; and employer and employee

rights to participate in inspection and review proceedings. The notice

of initial approval noted that the State does not cover private sector

maritime employment, employment on military bases, or domestic workers.

Notices of contest of citations and penalties are filed with the

Commissioner of Labor and are heard by the North Carolina Occupational

Safety and Health Review Board, an independent administrative review

board. Decisions of the North Carolina Occupational Safety and Health

Review Board may be appealed to the North Carolina Superior Court and

those decisions may be ultimately appealed to the North Carolina State

Supreme Court.

The Assistant Secretary's initial approval of the North Carolina

developmental plan, a general description of the plan, a schedule of

required developmental steps, and a provision for discretionary

concurrent Federal enforcement during the period of initial approval

were codified in the Code of Federal Regulations (29 CFR Part 1952,

Subpart I (38 FR 3041, February 1, 1973)).

In accordance with the State's developmental schedule, all major

structural components of the plan were put in place and documentation

submitted for OSHA approval on or before March 31, 1976. These

``developmental steps'' included enactment of the North Carolina

Occupational Safety and Health Act, promulgation of State occupational

safety and health standards essentially identical to Federal standards

and establishment of a public employee program. In completing these

developmental steps, the State developed and submitted for Federal

approval all components of its program including, among other things:

documentation of staff training; a merit staffing system; regulations

for inspections, citations and proposed penalties; record keeping and

reporting regulations; standards and variances regulations; compliance

procedures; and, rules of procedure for the North Carolina Occupational

Safety and Health Review Board.

These submissions were carefully reviewed by OSHA; after

opportunity for public comment and modification of State submissions,

where appropriate, the major plan elements were approved by the

Assistant Secretary as meeting the criteria of section 18 of the Act

and 29 CFR 1902.3 and 1902.4. The North Carolina Subpart of 29 CFR Part

1952 was amended to reflect each of these approval determinations (see

29 CFR 1952.152).

On October 5, 1976, in accordance with procedures at 29 CFR 1902.34

and 1902.35, the Assistant Secretary certified that North Carolina had

satisfactorily completed all developmental steps (41 FR 43896). In

certifying the plan, the Assistant Secretary found the structural

features of the program--the statutes, standards, regulations, and

written procedures for administering the North Carolina plan--to be as

effective as corresponding Federal provisions. Certification does not,

however, entail findings or conclusions by OSHA concerning adequacy of

actual plan performance. As has already been noted, OSHA regulations

provide that certification initiates a period of evaluation and

monitoring of State activity to determine in accordance with section

18(e) of the Act whether the statutory or regulatory criteria for State

plans are being applied in actual operations under the plan and whether

final approval should be granted.

On 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

undertook 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-

[[Page 48448]]

CIO, on September 11, 1991, petitioned the Assistant Secretary to

withdraw approval of the North Carolina State Plan. (See September 30,

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

Extension of the Comment Period and Announcement of the Availability of

a Special Evaluation report on North Carolina (57 FR 1889).) 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 that necessary

corrective action would be undertaken were received in June 1992.

North Carolina subsequently made substantive and significant

improvements 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 dedicated the

inspection resources to the program necessary to provide effective

worker protection in the State and 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. 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 to

OSHA's. These and other actions also resolved all issues raised in the

AFL-CIO's petition for withdrawal of approval of the North Carolina

State Plan.

OSHA evaluation reports on North Carolina's performance subsequent

to the Special Evaluation, documented continuing improvement and

indicated that the program was operating in an effective manner with an

outstanding commitment to necessary enforcement as well as creative

outreach and other voluntary compliance activities. Based on this

record, OSHA on March 7, 1995, determined that the exercise of

concurrent Federal enforcement jurisdiction was no longer warranted and

suspended Federal enforcement authority except with regard to those

issues not covered by the State. OSHA similarly determined that no

further action was necessary or appropriate with regard to the AFL-CIO

petition for North Carolina plan withdrawal. (See 44 FR 12416.)

North Carolina Benchmarks

Under the terms of a 1978 Court Order in AFL-CIO v. Marshall,

compliance staffing levels (benchmarks) necessary for a ``fully

effective'' enforcement program were required to be established for

each State operating an approved State plan. In 1980, in response to

the Court Order, OSHA established benchmarks for all approved State

plans, including benchmarks of 83 safety and 119 health compliance

officers for North Carolina. The 1978 Court Order noted that new

information might warrant an adjustment by OSHA of the fully effective

benchmarks. In September 1984 North Carolina in conjunction with OSHA,

completed a reassessment of the levels resulting in proposed revised

compliance staffing benchmarks of 50 safety and 27 health compliance

officers. After opportunity for public comment and service on the AFL-

CIO, the Assistant Secretary approved these revised staffing

requirements on January 17, 1986 (51 FR 2481).

In March 1989 the North Carolina House Appropriations Committee of

the North Carolina General Assembly passed a resolution instructing the

Commissioner of Labor to again renegotiate the appropriate number of

North Carolina occupational safety and health compliance officers with

OSHA. In June 1990 the State of North Carolina requested that the

Assistant Secretary approve revisions to its 1984 compliance staffing

benchmark levels which the State found to be more reflective of current

occupational safety and health needs and circumstances within the

State. This reassessment resulted in a proposal to OSHA of revised

compliance staffing benchmarks of 64 safety and 50 health compliance

officers for the State of North Carolina. These revised benchmarks were

approved by the Assistant Secretary on June 4, 1996, after opportunity

for public comment and service on the AFL-CIO (61 FR 28053).

Determination of Eligibility

This Federal Register notice announces the eligibility of the North

Carolina plan for final approval detertmination under section 18(e).

(29 CFR 1902.39(c) requires that this preliminary determination of

eligibility be made before section 18(e) procedures begin.) The

determination of eligibility is based upon OSHA's findings that:

(1) The North Carolina plan has been monitored in actual operation

for at least one year following certification. The results of OSHA

monitoring of the plan since the commencement of plan operations are

contained in written evaluation reports which are now prepared

biennially and made available to the State and to the public. The

results of OSHA's most recent post-certification monitoring are set

forth in a biennial evaluation report covering the period of October 1,

1993 through September 30, 1995, and in a section 18(e) Evaluation

Report of the North Carolina Plan, covering the period of October 1,

1995 through June 30, 1996, which have been made part of the record of

the present proceedings.

(2) The plan meets the State's revised benchmarks for enforcement

staffing. On June 4, 1996, pursuant to the terms of the Court Order and

the 1980 Report to the Court in AFL-CIO v. Marshall, OSHA approved

revised fully effective benchmarks of 64 safety and 50 health

compliance officers for North Carolina based on an assessment of State-

specific characteristics and historical experiences. North Carolina has

allocated these positions, as evidenced by the FY 1996 Application for

Federal Assistance in which the State has committed itself to funding

the State share of salaries for 64 safety and 51 health compliance

officers. The FY 1996 application has been made part of the record in

the present proceeding.

(3) North Carolina participates and has assured its continued

participation in the Integrated Management lnformation System (IMIS)

developed by OSHA.

Issues for Determination in the 18(e) Proceedings

The North Carolina plan is now at issue before the Assistant

Secretary for determination as to whether the criteria of section 18(c)

of the Act are being applied in actual operation. 29 CFR 1902.37(a)

requires the Assistant Secretary, as part of the final approval process

to determine if the State has applied and implemented all the specific

criteria and indices of effectiveness of Secs. 1902.3 and 1902.4. The

Assistant Secretary must make this determination by considering the

factors set forth in Sec. 1902.37(b). OSHA believes that the results of

its evaluation of the North Carolina program as described in the most

recent biennial evaluation report and the section 18(e) Performance

Evaluation Report, considered in light of these regulatory criteria and

the criteria in section 18(c) of the Act, indicate that

[[Page 48449]]

the regulatory indices and criteria are being met. The Assistant

Secretary accordingly has made an initial determination that the North

Carolina plan is eligible for an affirmative section 18(e)

determination. This notice initiates proceedings by which OSHA expects

to elicit public comment on the issue of granting an affirmative

section 18(e) determination to North Carolina. In order to encourage

the submission of informed and specific public comment, a summary of

current evaluation findings with respect to these criteria is set forth

below.

(a) Standards and Variances

Section 18(c)(2) of the Act requires State plans to provide for

occupational safety and health standards which are at least as

effective as Federal standards. A State is required to adopt, in a

timely manner, all Federal standards and amendments or to develop and

promulgate State standards and amendments at least as effective as the

Federal standards. See Secs. 1902.37(b)(3), 1902.3(c), 1902.4 (a) and

(b). The North Carolina plan provides for adoption of standards,

through an expedited process, which are in most cases identical to

Federal standards. North Carolina's adoption process continues to meet

the six-month time frame for adoption of OSHA standards requiring State

action during the section 18(e) evaluation period. [18(e) Evaluation

Report, p. 3]

Where a State adopts Federal standards, the State's interpretation

and application of such standards must ensure consistency with Federal

interpretation and application. Where a State develops and promulgates

its own standards, interpretation and application must ensure

protection at least as effective as comparable Federal standards and

enforcement procedures. While acknowledging prior approval of

individual standards by the Assistant Secretary, this requirement

stresses that State standards, in actual operation, must be at least as

effective as the Federal standards. See Secs. 1902.37(b)(4),

1902(c)(1), 1902.3(d)(l), 1903.4(a), and 1902.4(b)(2). As already

noted, the North Carolina plan provides for adoption of standards

identical to Federal standards. North Carolina also adopted

interpretations which are identical to the Federal interpretations in

most instances.

The State is required to take the necessary administrative judicial

or legislative action to correct any deficiency in its program caused

by an administrative or judicial challenge to any State standard,

whether the standard is identical to the Federal standards or developed

by the State. See Sec. 1902.37(b)(5). No such challenge to State

standards has ever occurred in North Carolina. [18(e) Evaluation

Report, p. 3.]

When granting permanent variances from standards, the State is

required to ensure that the employer provides as safe and healthful

working conditions as would have been provided if the standard were in

effect. See Secs. 1902.37(b)(6) and 1902.4(b)(2)(iv). North Carolina

had one request for a permanent variance during the 18(e) evaluation

period. That request is currently under review by the State. [18(e)

Evaluation Report, p. 3.]

Where a temporary variance is granted, the State must ensure, among

other things, that the employer complies with the standard as soon as

possible and provides appropriate interim employee protection. See

Secs. 1902.37(b)(7) and 1902.4(b)(2)(iv). The North Carolina temporary

variance procedures require that any employer granted a temporary

variance must have an effective program for coming into compliance with

the standard as soon as possible. During the section 18(e) evaluation

period, no temporary variance requests were received. [18(e) Evaluation

Report. p. 3].

(b) Enforcement

Section 18(c)(2) of the Act requires State plans to maintain an

enforcement program which is at least as effective as that conducted by

Federal OSHA. Section 18(c)(3) requires the State plan to provide for

right of entry and inspection of all work places at least as effective

as that in section 8 of the Act

Inspection Targeting. The State inspection program must provide for

sufficient resources to be directed to designated target industries

while providing adequate protection to all other workplaces covered

under the plan. See Secs. 1902.37(b)(8), 1902.3(d)(1), and 1902.4(c).

North Carolina targets estabishments for programmed inspections based

on industry injury/illness rates for safety and chemical exposure and

violation experience for health. As of July 1992, the State began a

priority targeting system directed at employers with a workers

compensation experience rate modifier of 1.5 or greater. North Carolina

has also implemented a cooperative compliance targeting program, known

as the ``North Carolina 248'' program, which targets the 248 employers

with the highest worker's compensation claim rates for a period of

three years. Since the inception of the ``North Carolina 248'' program,

154 of the 248 establishments have received an inspection by NC-OSH.

North Carolina continues to conduct a high percentage of all programmed

inspections in the high hazard industries in the state. [18(e)

Evaluation Report, p. 4-5].

Denials of Entry. In cases of refusal of entry, the State must

exercise its authority, through appropriate means, to enforce the right

of entry and inspection. See Secs. 1902.37(b)(9). 1902.3 (e) and (f),

and 1902.4(c)(2) (I) and (ix). Title 40.1 of the Code of North Carolina

allows the Commissioner to seek a warrant to permit entry into such

establishment that has refused entry for the purpose of inspection or

investigation. North Carolina obtained entry in 90% of refusals during

this nine month evaluation period. [18(e) Evaluation Report, p. 6]

Inspection Procedures. Inspections must be conducted in a competent

manner following approved enforcement procedures which include the

requirement that inspectors acquire information adequate to support any

citation issued. See Secs. 1902.37(b)(10), 1902.3(d)(1), and

1902.4(c)(2). Procedures for the North Carolina occupational safety and

health compliance program are set out in the North Carolina Field

Operations Manual, which is patterned after the Federal manual, and

thus follows inspection procedures, including documentation procedures,

which are similar to Federal procedures. The Evaluation Report notes

overall adherence by North Carolina to these procedures.

Identifying and Citing Hazards: North Carolina cited an average of

5 violations per safety inspection and 3.9 violations per health

inspection. 30.7% of safety violations and 30.5% of health violations

were cited as serious. The percentage of serious safety and health

violations were lower than the comparable Federal percentages. The

state continues to provide compliance officers with specific training

and direction to ensure the proper classification of violations of

standards. [18(e) Evaluation Report, p. 8]

Advance Notice: State plans must include a prohibition on advance

notice, and exceptions must be no broader than those allowed by Federal

OSHA procedure. See Sec. 1902.3(f). North Carolina adopted approved

procedures for advance notice similar to the Federal procedures.

Employee Participation: State plans must provide for inspections in

response to employee complaints, and must provide an opportunity for

employee participation in State inspections. See Sec. 1902.4(c) (I)

through (iii). North Carolina has procedures

[[Page 48450]]

similar to Federal OSHA for processing and responding to complaints and

providing for employee particpation in State inspections. The data

indicates that during the evaluation period the State responded to 85%

of serious safety and health complaints within the prescribed time

frame of 30 days. No complaints were classified as imminent danger

during the review period. [18(e) Evaluation Report, p. 7]

Nondiscrimination. State plans must also provide protection for

employees against discrimination similar to that found in section 11(c)

of the Federal Act. See Sec. 1902.4(c)(2)(v). Title 40.1 of the Code of

North Carolina and State regulations provide for discrimination

protection equivalent to that provided by Federal OSHA. Employees have

up to 180 days to file a complaint, compared to the Federal 30 days. A

total of 66 complaints alleging discrimination were received during the

evaluation period, of which, only 6 had lapse times of more than 90

days from date of receipt to the date of determination. 60 of the cases

had been settled, withdrawn, dismissed, or filed for litigation by the

end of the period. [18(e) Evaluation Report, p. 13]

Citations and Proposed Penalties. The State is required to issue,

in a timely manner, citations, proposed penalties, and notices of

failure to abate. See Secs. 1902.37(b)(11), 1902.3(d), and 1902.4(c)(2)

(x) and (xi). The State's lapse time from last day of inspection to

issuance of citation averaged 36.7 days for safety and 57.9 days for

health. Both of the lapse times compare favorably to Federal OSHA's

time lapse.

The State must propose penalties in manner that is at least as

effective as the penalties under the Federal program, which includes

first instance violation penalties and consideration of comparable

factors required in the Federal program. See Secs. 1902.37(b)(12),

1902.3(d), and 1902.4(c) (x) and (xi). North Carolina's procedures for

penalty calculation are the similar to the Federal procedures. The

section 18(e) Evaluation Report noted that North Carolina proposes

appropriate penalties. The average penalty for serious safety

violations was $1215.10 and the average serious health penalty was

$1056.30. [18(e) Evaluation Report, p. 8-9]

Abatement. The State must ensure abatement of hazards cited

including issuance of notices of failure to abate and appropriate

penalties. See Secs. 1902.37(b)(13), 1902.3(d), and 1902.4(c) (vii) and

(xi). North Carolina's abatement periods for serious violations

averaged 15.5 days for safety and 6.8 days for health. [18(e)

Evaluation Report, p.9]

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). The North Carolina section 18(e) Evaluation Report noted no

instances of adverse adjudications.

(c) Staffing and Resources

The State is required to have a sufficient number of adequately

trained and competent personnel to discharge its responsibilities under

the plan. See section 18(c)(4) of the Act; 29 CFR 1902.37(b)(1),

1902.3(d) and 1902.3(h). A State must also direct adequate resources to

administration and enforcement of the plan. See section 18(c)(5) of the

Act and Sec. 1902.3(I). As discussed above, the North Carolina plan

provides for 64 safety compliance officers and 51 industrial hygienists

as set forth in the North Carolina FY 1996 grant. This staffing level

meets the approved, revised ``fully effective'' benchmarks for North

Carolina for health and safety staffing, as discussed elsewhere in this

notice. At the close of the evaluation period the State had 60 safety

and 47 health compliance officers positions filled. [18(e) Evaluation

Report, p. 17]

North Carolina provides its safety and health personnel with formal

training based on the needs of the staff and availability of funds. The

OSHA Training Institute is utilized for staff training, and the State

conducts quarterly conferences to train personnel in new and updated

policy and technical changes. [18(e) Evaluation Report, p. 14]

(d) Other Requirements

Public Employees: States which have approved plans must maintain a

safety and health program for State and local employees which must be

as effective as the State's plan for the private sector. See

Sec. 1902.3(j). The North Carolina plan provides a program in the

public sector which is comparable to that in the private sector,

including assessment of penalties. Injury and illness rates are lower

in the public sector than in the private. [18(e) Evaluation Report, p.

9-11]

Injury/Illness Rates: As a factor of its section 18(e)

determination, OSHA must consider whether the Bureau of Labor

Statistics' annual occupational safety and health survey and other

available Federal and State measurements of program impact on worker

safety and health indicate that trends in worker safety and health

injury and illness rates under the State program compare favorably with

those under the Federal program. See Sec. 1902.37(b)(15). In 1994, the

private sector rate for all industries remained at 3.5 as it has been

since 1989. There were slight increases in, manufacturing--1993-4.0,

1994-4.1, and construction--1993-4.7, 1994-5.1, but both areas were

still below the nationwide rate of 3.8 for all industries, 5.5 for

manufacturing, and 5.5 for construction. [18(e) Evaluation Report, p.

18]

Required Reports: State plans must assure that employers in the

State submit reports to the Secretary in the same manner as if the plan

were not in effect. See section 18(c)(7) of the Act; 29 CFR 1902.3(k).

The plan must also provide assurance that the designated agency will

make such reports to the Secretary in such form and containing such

information as he may from time to time require. Section 18(c)(8) of

the Act; 29 CFR 1902.4(1). North Carolina employer recordkeeping

requirements are identical to those of Federal OSHA, and the State

participates in the BLS Annual Survey of Occupational Illness and

Injuries. As noted above, the State participates and has assured its

continuing participation with OSHA in the Integrated Management

Information System (IMIS) as a means of providing reports on its

activities to OSHA.

Voluntary Compliance: Section 1902.4(c)(2)(xiii) requires States to

undertake programs to encourage voluntary compliance by employers by

such means as conducting training and consultation with employers and

employees. In the private sector the State conducted 178 employer and

employee training sessions with 3,117 employer attendees and 5,445

employee attendees at the sessions. The State, through a cooperative

agreement with the North Carolina Community College System Small

Business Centers, also participated in conducting 43 workshops covering

several safety and health subjects. [18(e) Evaluation Report, p.14]

The State has entered into a partnership with North Carolina State

University to provide comprehensive ergonomic services to citizens and

employers through the Ergonomics Resource Center. The Center has

developed a comprehensive outreach program which includes education,

research, on-site consultation, technology transfer and monitoring, on

a fee basis. The Center has been selected as one of the semi-finalists

in the 1996 Innovations in American Government Awards program.

[[Page 48451]]

North Carolina also has initiated a Cooperative Assessment Program

for ergonomics which encourages employers to voluntarily address

ergonomic problems through an agreement similar to a post-citation

settlement agreement. The State has also entered into a Memorandum of

Understanding with the State Department of Agriculture, Meat and

Poultry Inspection Services to train MPIS inspectors to recognize and

address workplace hazards.

In addition, on-site consultation services are provided in the

public sector. (The State's on-site consultation program for the

private sector is conducted apart from the State plan under an

agreement with OSHA under section 7(c)(1) of the OSH Act.)

Effect of Sec. 18(e) Determination

If the Assistant Secretary, after completion of the proceedings

described in this notice, determines that the statutory and regulatory

criteria for State plans are being applied in actual operations, final

approval will be granted and Federal standards and enforcement

authority will cease to be in effect with respect to issues covered by

the North Carolina plan, as provided by Section 18(e) of the Act and 29

CFR 1902.42(c). North Carolina has excluded from its plan: Safety and

health coverage in private sector maritime activities (enforcement of

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

standards (29 CFR Part 1910) appropriate to hazards found in these

employments). In addition, North Carolina does not cover employment on

Indian reservations, enforcement relating to any contractors or

subcontractors on any Federal establishment where the land has been

ceded to the Federal Government, railroad employment, and enforcement

on military bases. Thus, Federal coverage of these areas would be

unaffected by an affirmative section 18(e) determination.

In the event an affirmative section 18(e) determination is made by

the Assistant Secretary following the proceedings described in the

present notice, a notice will be published in the Federal Register in

accordance with 29 CFR 1902.43; the notice will specify the issues as

to which Federal authority is withdrawn, will state that Federal

authority with respect to enforcement under section 5(a)(1) of the Act

and discrimination complaints under section 11(c) of the Act remains in

effect, and will state that if continuing evaluations show that the

State has failed to maintain a compliance staff which meets the revised

fully effective benchmarks, or has failed to maintain a program which

is at least as effective as the Federal, or that the State has failed

to submit program change supplements as required by 29 CFR Part 1953,

the Assistant Secretary may revoke or suspend final approval and

reinstate Federal enforcement authority or, if the circumstances

warrant, initiate action to withdraw approval of the State plan. At the

same time, Subpart C of 29 CFR Part 1952, which codifies OSHA decisions

regarding approval of the North Carolina plan, would be amended to

reflect the section 18(e) determination if an affirmative determination

is made.

Documents of Record

All information and data presently available to OSHA relating to

the North Carolina section 18(e) proceeding have been made a part of

the record in this proceeding and placed in the OSHA Docket Office. The

contents of the record are available for inspection and copying at the

following locations:

Docket Office, Room N-2625, Docket No. T-031, Occupational Safety

and Health Administration, U.S. Department of Labor, 200 Constitution

Avenue NW, Washington, DC 20210;

Office of the Regional Administrator, Occupational Safety and

Health Administration, U.S. Department of Labor, 1375 Peachtree Street,

N.E., Suite 587, Atlanta, Georgia 30367; and North Carolina Department

of Labor, Division of Occupational Safety and Health, 319 Chapanoke

Road--Suite 105, Raleigh, North Carolina 27603-3432.

To date, the record on final approval determination includes copies

of all Federal Register documents regarding the plan, including notices

of plan submission, initial Federal approval, certification of

completion of developmental steps, codification of the State's

operational status agreement, and other plan supplements. The record

also includes the State plan document, which includes a plan narrative,

the State legislation, regulations and procedures, an organizational

chart for State staffing; the State's FY 1997 Federal grant; and the

October 1, 1995 through June 30, 1996 18(e) Evaluation Report and all

previous, post-certification reports.

Public Participation

Request for Public Comment and Opportunity To Request Hearing

The Assistant Secretary is directed under Sec. 1902.41 to make a

decision whether an affirmative section 18(e) determination is

warranted or not. As part of the Assistant Secretary's decision-making

process, consideration must be given to the application and

implementation by North Carolina of the requirements of section 18(c)

of the Act and all specified criteria and indices of effectiveness as

presented in 29 CFR 1902.3 and 1902.4. These criteria and indices must

be considered in light of the factors in 29 CFR 1902.37 (b)(1) through

(15). However, this action will be taken only after all the information

contained in the record, including OSHA's evaluation of the actual

operations of the State plan, and information presented in written

submissions and during an informal public hearing, if held, is reviewed

and analyzed. OSHA is soliciting public participation in this process

so as to assure that all relevant information, views, data and

arguments related to the indices, criteria and factors presented in 29

CFR Part 1902, as they apply to North Carolina State plan, are

available to the Assistant Secretary during this administrative

proceeding.

Interested persons are invited to submit written data, views, and

arguments with respect to this proposed section 18(e) determination.

These comments must be received on or before (30 days) and submitted in

quadruplicate to the Docket Officer, Docket No. T-031, Room N-2625,

U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC

20210. Written submissions must clearly identify the issues which are

addressed and the positions taken with respect to each issue. The State

of North Carolina will be afforded the opportunity to respond to each

submission.

Pursuant to 29 CFR 1902.39(f), interested persons may request an

informal hearing concerning the proposed section 18(e) determination.

Such requests also must be received on or before (30 days) and should

be submitted in quadruplicate to the Docket Officer, Docket T-031, at

the address noted above. Such requests must present particularized

written objections to the proposed section 18(e) determination. The

Assistant Secretary will decide within 30 days of the last day for

filing written views or comments and requests for a hearing whether the

objections raised are substantial and, if so, will publish notice of

the time and place of the scheduled hearing.

The Assistant Secretary will, within a reasonable time after the

close of the comment period or after the certification of the record if

a hearing is held, publish his decisions in the Federal

[[Page 48452]]

Register. All written and oral submissions, as well as other

information gathered by OSHA, will be considered in any action taken.

The record of this proceeding, including written comments and requests

for hearing and all materials submitted in response to this notice and

at any subsequent hearing, will be available for inspection and copying

in the Docket Office, Room N-2625, at the previously mentioned address,

between the hours of 8:15 a.m. and 4:45 p.m.

Regulatory Flexibility Act

OSHA certifies pursuant to the Regulatory Flexibility Act of 1980

(5 U.S.C. 601 et seq.) that this determination will not have a

significant economic impact on a substantial number of small entities.

Final approval would not place small employers in North Carolina under

any new or different requirements, nor would any additional burden be

placed upon the State government beyond the responsibilities already

assumed as part of the approved plan.

List of Subjects in 29 CFR Part 1952

Intergovernmental relations. Law enforcement, Occupational safety

and health, Occupational Safety and Health Administration.

(Sec. 18, 84 Stat. 1608 (29 U.S.C. 667): 29 CFR Part 1902, Secretary

of Labor's Order No. 9-83 (43 FR 35736))

Signed at Washington, DC, this 6th day of September, 1996.

Joseph A. Dear,

Assistant Secretary of Labor.

[FR Doc. 96-23459 Filed 9-12-96; 8:45 am]

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