North Carolina State Plan; Final Approval Determination

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

[Docket No. T-031]

North Carolina State Plan; Final Approval Determination

December 10, 1996.

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

Department of Labor.

ACTION: Final State plan approval.

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SUMMARY: This document amends OSHA's regulations to reflect the

Assistant Secretary's decision granting final approval to the North

Carolina State plan. As a result of this affirmative determination

under section 18(e) of the Occupational Safety and Health Act of 1970,

Federal OSHA's standards and enforcement authority no longer apply to

occupational safety and health issues covered by the North Carolina

plan, and authority for Federal concurrent jurisdiction is

relinquished. Federal enforcement jurisdiction is retained over private

sector maritime activities, 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.

Federal jurisdiction remains in effect with respect to Federal

government employers and employees.

EFFECTIVE DATE: December 10, 1996.

FOR FURTHER INFORMATION CONTACT: Bonnie Friedman, Director, Office of

Information and Consumer Affairs, Occupational Safety and Health

Administration, U.S. Department of Labor, Room N3637, 200 Constitution

Avenue NW., Washington, DC 20210, (202) 219-8148.

SUPPLEMENTARY INFORMATION:

Introduction

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

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

assume responsibility for the development and enforcement of

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

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

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

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

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

provides or will provide for State standards and enforcement which are

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

``initial approval'' is granted. A State may commence operations under

its plan after this determination is made, but the Assistant Secretary

retains discretionary Federal enforcement authority during the initial

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

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

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

includes satisfactory assurances by the State that it will take the

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

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

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

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

1902.34).

When a State plan that has been granted initial approval is

developed sufficiently to warrant a suspension of concurrent Federal

enforcement activity, it becomes eligible to enter into an

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

must have enacted its enabling legislation, promulgated State

standards, achieved an adequate level of qualified personnel, and

established a system for review of contested enforcement actions. Under

these voluntary agreements, concurrent Federal enforcement will not be

initiated with regard to Federal occupational safety and health

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

program is providing an acceptable level of protection.

Following the initial approval of a complete plan, or the

certification of a developmental plan, the Assistant Secretary must

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

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

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

and 29 CFR 1902.37 are being applied.

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

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

in the relinquishment of authority for Federal concurrent enforcement

jurisdiction in the State with respect to occupational safety and

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

section 18(e) determinations are found at 29 CFR part 1902, subpart D.

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

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

OSHA program in all areas covered under the State plan.

An additional requirement for final approval consideration is that

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

safety inspectors and industrial hygienists established by OSHA for

that State. This requirement stems from a court order by the U.S.

District Court for the District of Columbia pursuant to the U.S. Court

of Appeals'' decision in AFL-CIO v. Marshall, 570 F.2d 1030 (D.C. Cir

1978), that directed the Assistant Secretary to calculate for each

State plan State the number of enforcement personnel needed to assure a

``fully effective'' enforcement program.

The last requirement for final approval consideration is that a

State must participate in OSHA's Integrated Management Information

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

program performance data on a State necessary to make an objective

continuing evaluation of whether the State performance meets the

statutory and regulatory criteria for final and continuing approval.

History of the North Carolina Plan and of Its Compliance Staffing

Benchmarks

North Carolina Plan

A history of the North Carolina State plan, a description of its

provisions, and a discussion of the compliance staffing benchmarks

established for North Carolina was contained in the September 13, 1996,

Federal Register notice (61 FR 48446 ) proposing that final approval

under Section 18(e) of the Act be granted. The North Carolina State

plan was submitted on November 27, 1972, initially approved on February

1, 1973 (38 FR 3041), certified as having completed all developmental

steps on October 5, 1976 (41 FR 43896), concurrent Federal enforcement

jurisdiction suspended on February 20, 1975 (40 FR 16843), reinstated

on October 24, 1991 (56 FR 55192) and again suspended on March 7, 1995

(44 FR 12416); and revised compliance staffing benchmarks for North

Carolina were approved on January 17, 1986 (51 FR 2481) and June 4,

1996 (61 FR 28053).

History of the Present Proceedings

Procedures for final approval of State plans are set forth at 29

CFR 1902, Subpart D. On September 13, 1996, OSHA published notice (61

FR 48446) of the eligibility of the North Carolina State plan for

determination under section 18(e) of the Act as to whether final

approval of the plan should be granted. The determination of

eligibility was based on monitoring of State operations for at least

one year following certification, State participation in the Federal-

State Integrated Management Information System, and staffing which

meets the revised State staffing benchmarks.

The September 13 Federal Register notice set forth a general

description of the North Carolina State plan and summarized the results

of Federal OSHA monitoring of State operations during the period from

October 1, 1993 through June 30, 1996. In addition to the information

set forth in the notice itself, OSHA made available as part of the

record extensive and detailed exhibits documenting the plan, including

copies of the State legislation, administrative regulations and

procedural manuals under which North Carolina operates its plan, and

copies of all previous Federal Register notices regarding the plan.

Copies of the most recent comprehensive evaluation report, the

October 1, 1993 through September 30, 1995, Biennial Evaluation Report,

and the ``18(e) Evaluation Report'', covering the period of October 1,

1995 through June 30, 1996 of the North Carolina Plan which was

extensively summarized in the September 13 proposal and provided the

principal factual basis for the proposed 18(e) determination, were

included in the docket.

To assist and encourage public participation in the 18(e)

determination, copies of all docket materials were maintained in the

OSHA Docket Office in Washington, DC., in the OSHA Regional Office in

Atlanta, Georgia, and at the North Carolina Department of Labor,

Division of Occupational Safety and Health in Raleigh, North Carolina.

Summaries of the September 13 notice, with an invitation for public

comments, were published in North Carolina on September 20, 1996, in

the following newspapers: Charlotte Observer, Winston-Salem Journal,

Asheville Citizen Times, Wilmington Morning Star, Raleigh News and

Observer, and The Greensboro New and Record.

The September 13 notice invited interested persons to submit by

October 15 written comments and views regarding the North Carolina plan

and whether final approval should be granted. An opportunity to request

an informal public hearing also was provided. Twenty-six (26) comments

were received in response to this proposal; none requested an informal

hearing.

Summary and Evaluation of Comments

OSHA has encouraged interested members of the public to provide

information and views regarding operations under the North Carolina

plan to supplement the information already gathered during OSHA

monitoring and evaluation of plan administration.

In response to the September 13 proposal, OSHA received comments

from: Don Beussee, Director, Health and Safety Services, Burlington

Industries, Inc. [Ex. 14-1]; Jim H. Conner, Executive Vice President,

The American Yarn Spinners Association, Inc. [Ex. 14-2]; Linda Moore,

Chairperson, NC Tarheel Association of Occupational Health Nurses [Ex.

14-3]; R. Paul Wilms, Director, Regulatory Affairs, NC Home Builders

Association [Ex. 14-4]; Garry Moore, Director of Human Resources,

Kentucky Derby Hosiery Co., Inc. [Ex. 14-5]; Douglas Brackett,

Executive Vice President, American Furniture Manufacturers Association

[Ex. 14-6]; Thomas F. Cecich, Vice President, Environmental Safety,

GlaxoWellcome, Inc. [Ex. 14-7]; Dennis M. Julian, Executive Vice

President, NC Textile Manufacturers Association, Inc. [Ex. 14-8]; W. B.

Jenkins, President, NC Farm Bureau Federation [Ex. 14-9]; Robert W.

Slocum, Jr., Executive Vice President, NC Forestry Association., Inc.

[Ex. 14-10]; James E. McCauley, Director, Safety and Security, Perdue

Farms Inc. [Ex. 14-11]; Judith S. Ostendorf, President, NC Tarheel

Association of Occupational Health Nurses [Ex. 14-12]; Cheryl N.

Kennedy, NC Costal Plains Association of Occupational Health Nurses

[Ex. 14-13]; Ginger Lusk, President, NC Foothills Association of

Occupational Health Nurses [Ex. 14-14]; Robin Lee, Vice President,

Metrolina of NC Association of Occupational Health Nurses [Ex. 14-15];

Lisa Ramber, Manager, Safety and Health, American Textile Manufacturers

Institute [Ex. 14-16]; Henry L. Schmulling, Jr., Manager, Corporate

Safety and Industrial Hygiene, Duke Power Company [Ex. 14-17]; Timothy

J. Pizatella, Acting Director, Division of

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Safety Research, NIOSH [Ex. 14-18]; Belinda S. Worsham, Occupational

Health Nurse Consultant [Ex. 14-20]; June H. Hoyle, Occupational Health

Nurse Practitioner, City of High Point, NC [Ex. 14-21]; Patricia

Dalton, Administrator/Occupational Health, Pitt County Memorial

Hospital [Ex. 14-22]; Lynn H. Hollifield, President, Western NC

Association of Occupational Health Nurses [Ex. 14-23]; Liza Gregg, RN,

MSN, CIC, CPHQ, NC Association of Occupational Health Nurses [Ex. 14-

24]; Connie Bandy, Vice President, NC Costal Plains AOHN [Ex. 14-25];

Bonnie Rogers, President, The American Association of Occupational

Health Nurses, Inc. [Ex. 14-26]; and Doug E. Croft, President, Chamber

of Commerce, Thomasville, North Carolina [Ex. 14-27].

Of the 26 written comments received, ten (10) expressed full

unqualified support for final approval on the grounds of State

competence, responsiveness, innovation and specific knowledge of local

conditions. All of these comments indicated that the State has

established and operates an effective safety and health program without

adversarial relations with local industries and workers, and that the

State has been effective in protecting employees in North Carolina.

Specifically, the commenters commended the State program for, among

other things: its growth over the last four years, doubling its

enforcement and education staffs; offering a full range of educational

and consultative programs to the regulated community to augment a more

focused and efficient enforcement effort; a decline every year since

1992 in the overall occupational injury and illness rate in the State;

and its establishment of an Ergonomics Resource Center in conjunction

with North Carolina State University; its initiation of a series of

partnerships with business and industry trade associations to address

hazards in areas such as logging, home-building, bottling, and

furniture.

Twelve (12) [Exhibits 14-3, 14-12, 14-13, 14-14, 14-15; 14-20; 14-

21; 14-22; 14-23; 14- 24; 14-25; and 14-26] comments were received from

North Carolina affiliates of the Association of Occupational Health

Nurses recommending that the North Carolina program include

occupational health nursing positions in its staffing benchmarks. As

Deputy Commissioner Charles N. Jeffress noted in his responses [Ex. 14-

19A-D; Ex. 14-28; and Ex. 14-29], this issue was also raised by the

Association during OSHA's consideration of the State's proposal to

revise its compliance staffing benchmark levels. However, benchmark

staffing requirements apply solely to personnel engaged in the

enforcement of standards and while an individual with an educational

background in occupational health nursing would be eligible to apply

for such compliance positions, it would be inappropriate to reserve

staffing positions for individuals with a particular occupational

health degree. However, Mr. Jeffress concurs that occupational health

nurses can add value to an occupational safety and health program

particularly in the areas of training and compliance assistance. An

occupational nurse has served as a member of the North Carolina

Occupational Safety and Health Advisory Council and one is on the staff

of the North Carolina Ergonomics Resource Center joint program.

Further, Mr. Jeffress indicates that they have relied on the expertise

and advice of occupational health professionals in other departments

with which they conduct cooperative efforts especially in the areas of

worker health and reporting of occupational illnesses.

Four (4) commenters, Don Beussee, Director, Health and Safety

Services, Burlington Industries, Inc. [Ex. 14-1]; Jim H. Conner,

Executive Vice President, The American Yarn Spinners Association, Inc.

[Ex. 14-2]; Dennis M. Julian, Executive Vice President, North Carolina

Textile Manufacturers Association, Inc. [Ex. 14-8]; and Lisa Ramber,

Manager, Safety and Health, American Textile Manufacturers Institute

[Ex. 14-16], raise concerns about North Carolina's adoption of more

stringent enforcement policies with regard to engineering controls for

noise levels between 90 dBA and 100 dBA and full-shift use of

respirators for cotton dust exposures in the textile industry. All

suggest that these interpretations are inconsistent with Federal OSHA's

standards interpretations and have not been demonstrated to comply with

the ``product clause'' test of the Act that different State standards

must be ``required by compelling local conditions and not cause an

undue burden on interstate commerce.'' Mr. Julian and Mr. Beusse,

nonetheless, support the granting of final approval while Ms. Ramber

requests that the State be required to revise its policies prior to

OSHA granting final approval. Charles Jeffress, Deputy Commissioner of

Labor, responded individually to each of the comments on October 9,

1996, Burlington Industries, Inc. (Ex. 14-19); October 15, 1996,

American Yarn Spinners Association, Inc. (Ex. 14-19A); October 17,

1996, North Carolina Textile Manufacturers Association, Inc. (Ex. 14-

19B); and October 18, 1996, American Textile Manufacturers Institute

(Ex. 14-19C).

North Carolina's standard for noise is identical to the Federal

standard (29 CFR 1910.95). However, North Carolina requires employers

to implement engineering controls, where feasible, when noise levels

are between 90 dBA and 100 dBA. One commenter indicates that this

policy ``* * * requires employers to spend significant resources to

engineer incremental reductions in noise levels * * *'' while still

requiring the use of hearing protection devices. (Federal OSHA policy

allows employers to rely on an effective hearing conservation program

in lieu of engineering controls for noise levels between 92 dBA and

100dBA when this is demonstrated to be more cost effective.) Mr.

Jeffress indicates that North Carolina's policy is consistent with the

Federal policy in effect in 1983 and retention of this policy is ``more

protective'' with the State's emphasis being on ``solving the problem''

rather than relying on a ``difficult to administer'' hearing

conservation program. He further notes that North Carolina requires

only ``feasible'' engineering and administrative controls in these

situations and accepts hearing conservation methods when it is the only

technologically or economically feasible means to control employee

overexposure to noise at these levels. A case contesting this policy,

brought by one of the commenters, Burlington Industries, is currently

before the North Carolina Occupational Safety and Health Review Board.

North Carolina's standard for cotton dust is also identical to the

Federal standard (29 CFR 1910.1043). Federal OSHA's interpretation of

this standard allows the partial-shift wearing of respiratory

protection where engineering controls alone do not reduce each

employee's eight-hour time-weighted exposure to below the permissible

exposure limit (PEL). North Carolina requires that respirators be worn

during the full shift when engineering controls alone have not reduced

exposure to below the PEL in order to afford workers the ``greatest

protection possible'' and in recognition of lung function recovery

which occurs when workers are removed from dusty environments even for

short periods of time. The commenters are particularly concerned that

this policy is also applied to extended shifts of 12 hours where the

eight-hour time weighted average has been engineered below the PEL. Mr.

Jeffress responds that he met

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with representatives of the various associations on this issue on March

27, 1995, and subsequently Commissioner of Labor Harry Payne agreed to

reevaluate North Carolina's policy upon the submission by the industry

of data, such as medical or spirometry data, which can be used to

evaluate the comparative benefits of full-shift respirator usage versus

partial shift. A second meeting occurred on April 17, 1996, with two

industry representatives but no data on health effects has been made

available and no research authorized. North Carolina reiterated its

offer to reconsider its policy upon the submission of appropriate

comparative data. OSHA also investigated a Complaint About State

Program Administration (CASPA) on this issue in 1992 and found the

State's policy to be acceptable. No further comments or objections were

received with regard to that finding at that time.

The OSH Act and implementing regulations require that both State

standards, and the State's interpretations of those standards, be ``at

least as effective as'' corresponding Federal OSHA standards and

interpretations. (Section 18(c)(2); 1902.37(b)(4.) The differences

between State and Federal standards identified in these comments

describe State standards interpretations which are more stringent than

those of Federal OSHA. Therefore, by definition these interpretations

meet the ``at least as effective'' criterion. The further issues as to

whether these standards, as interpreted and administered by the State,

are applicable to products moved or used in interstate commerce; impose

an undue burden on commerce; and are justified by compelling local

conditions are not yet ripe for review as both polices are still under

active consideration within the State, i.e., the noise policy through

on-going contested cases challenging the policy; the full-shift use of

respirators through the State's offer to reconsider the policy through

negotiation with the textile industry.

OSHA, therefore, does not believe that any of the concerns

expressed are sufficient to warrant withholding of final approval of

the North Carolina State Plan especially in light of on-going State

administrative and adjudicatory procedures.

Findings and Conclusions

As required by 29 CFR 1902.41, in considering the granting of final

approval to a State plan, OSHA has carefully and thoroughly reviewed

all information available to it on the actual operation of the North

Carolina State plan. This information has included all previous

evaluation findings since certification of completion of the State

plan's developmental steps, especially data for the period October 1,

1993 through June 30, 1996 and information presented in written

submissions. Findings and conclusions in each of the areas of

performance are as follows:

(1) Standards. Section 18(c)(2) of the Act requires State plans to

provide for occupational safety and health standards which are at least

as effective as Federal standards. Such standards where not identical

to the Federal must be promulgated through a procedure allowing for

consideration of all pertinent factual information and participation of

all interested persons (29 CFR 1902.4(b)(2)(iii)); must, where dealing

with toxic materials or harmful physical agents, assure employee

protection throughout his or her working life (29 CFR 1902.4(b)(2)(I));

must provide for furnishing employees appropriate information regarding

hazards in the workplace through labels, posting, medical examinations,

etc. (29 CFR 1902.4(b)(2)(vi)); must require suitable protective

equipment, technological control, monitoring, etc. (29 CFR

1902.4(b)(2)(vii)); and, where applicable to a product, must be

required by compelling local conditions and not pose an undue burden on

interstate commerce (29 CFR 1902.3(c)(2)).

As documented in the approved North Carolina State plan and OSHA's

evaluation findings made a part of the record in this 18(e)

determination proceeding, and as discussed in the September 13 notice,

the North Carolina plan provides for the adoption of standards and

amendments thereto which are, in most cases, identical to Federal

standards. The State's laws and regulations, previously approved by

OSHA and made a part of the record in this proceeding, include

provisions addressing all of the structural requirements for State

standards set out in 29 CFR part 1902.

In order to qualify for final State plan approval, a State program

must be found to have adhered to its approved procedures (29 CFR

1902.37(b)(2)); to have timely adopted identical or at least as

effective standards, including emergency temporary standards and

standards amendments (29 CFR 1902.37(b)(3)); to have interpreted its

standards in a manner consistent with Federal interpretations and thus

to demonstrate that in actual operation State standards are at least as

effective as the Federal (29 CFR 1902.37(b)(4)); and to correct any

deficiencies resulting from administrative or judicial challenge of

State standards (29 CFR 1902.37(b)(5)).

As noted in the ``18(e) Evaluation Report'' and summarized in the

September 13, 1996, Federal Register notice, North Carolina has adopted

standards in a timely manner which are, in nearly all cases, identical

to Federal standards. Where a State adopts Federal standards, the

State's interpretation and application of such standards must ensure

consistency with Federal interpretation and application. North Carolina

has generally adopted standards interpretations which are identical to

the Federal but in few cases, e.g., noise and cotton dust standards,

has adopted more protective, but nonetheless at least as effective

interpretations. (See discussion above on Comments received from the

textile industry on this issue.)

OSHA's monitoring has found that the State's application of its

standards is comparable to Federal standards application. No challenges

to State standards have occurred in North Carolina.

Therefore, in accordance with section 18(c)(2) of the Act and the

pertinent provisions of 29 CFR 1902.3, 1902.4 and 1902.37, OSHA finds

that the North Carolina program in actual operation provides for

standards adoption, correction when found deficient, interpretation and

application, in a manner at least as effective as the Federal Program.

(2) Variances. A State plan is expected to have the authority and

procedures for the granting of variances comparable to those in the

Federal program (29 CFR 1902.4(b)(2)(iv)). The North Carolina State

plan contains such provisions in both law and regulations which have

been previously approved by OSHA. In order to qualify for final State

plan approval, permanent variances granted must assure employment

equally as safe and healthful as would be provided by compliance with

the standard (29 CFR 1902.37(b)(6)); temporary variances granted must

assure compliances as early as possible and provide appropriate interim

employee protection (29 CFR 1902.37(b)(7)). As noted in the 18(e)

Evaluation Report and the September 13 notice, North Carolina received

one request for a permanent variance during the reporting period. That

request is currently under review by the State. No temporary variance

request was received during the evaluation period and there are no

outstanding issues on variances previously granted.

Accordingly, OSHA finds that the North Carolina program is able to

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effectively grant variances from its occupational safety and health

standards.

(3) Enforcement. Section 18(c)(2) of the Act and 29 CFR

1902.3(c)(1) require a State program to provide a program for

enforcement of State standards which is and will continue to be at

least as effective in providing safe and healthful employment and

places of employment as the Federal program. The State must require

employer and employee compliance with all applicable standards, rules

and orders (29 CFR 1902.3(d)(2)) and must have the legal authority for

standards enforcement including compulsory process (29 CFR

1902.4(c)(2)).

The North Carolina occupational safety and health statutes and

implementing regulations, previously approved by OSHA, establish

employer and employee compliance responsibility and contain legal

authority for standards enforcement in terms substantially identical to

those in the Federal Act. In order to be qualified for final approval,

the State must have adhered to all approved procedures adopted to

ensure an at least as effective compliance program (29 CFR

1902.37(b)(2)). The ``18(e) Evaluation Report'' indicates no

signficiant lack of adherence to such procedures.

(a) Inspections. In order to qualify for final approval, the State

program, as implemented, must allocate sufficient resources toward

high-hazard workplaces while providing adequate attention to other

covered workplaces (29 CFR 1902.37(b)(8)). Data contained in the 18(e)

Evaluation Report noted that North Carolina targets establishments for

programmed inspections based on industry injury/illness rates for

safety and chemical exposure and violation experience for health. North

Carolina has also implemented a cooperative compliance targeting

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

employers with the highest worker's compensation claim rates for a

period of three years. North Carolina continues to conduct a higher

percentage of all programmed inspections in the high-hazard industries

in the State.

(b) Employee Notice and Participation in Inspections: State plans

must provide for inspections in response to employee complaints and

must provide for an opportunity for employees and their representatives

to point out possible violations through such means as employee

accompaniment or interviews with employees (29 CFR 1902.4(c)(i) through

(iii)). North Carolina has procedures similar to Federal OSHA for

processing and responding to complaints and providing for employee

participation 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.

Employees participated in inspections in almost every case.

In addition, the State plan must provide that employees be informed

of their protections and obligations under the Act by such means as the

posting of notices (29 CFR 1902.4(c)(2)(iv)), and provide that

employees have access to information on their exposure to regulated

agents and access to records of the monitoring of their exposure to

such agents (29 CFR 1902.4(c)(vi)).

To inform employees and employers of their protections and

obligations, North Carolina requires that a poster approved by OSHA be

displayed in all covered workplaces. Requirements for the posting of

the poster and other notices such as citations, contests, hearings and

variances applications are set forth in the previously approved State

law and regulations which are substantially identical to Federal

requirements. Information on employee exposure to regulated agents and

access to medical and monitoring records is provided through State

standards which are, in most instances, identical to the Federal.

Federal OSHA concluded that the State's performance is satisfactory.

(c) Nondiscrimination. A State is expected to provide appropriate

protection to employees against discharge or discrimination for

exercising their rights under the State's program including provision

for employer sanctions and employee confidentiality (29 CFR

1902.4(c)(2)(v)). North Carolina General Statute 95-240 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. The State received a total

of 66 complaints alleging discrimination during the evaluation period;

60 of the cases had been settled, withdrawn, dismissed, or filed for

litigation by the end of the period. Federal OSHA concluded that the

State's performance is satisfactory.

(d) Restraint of Imminent Danger; Protection of Trade Secrets. A

State plan is required to provide for the prompt restraint of imminent

danger situations (29 CFR 1902.4(c)(2)(vii)), and to provide adequate

safeguards for the protection of trade secrets (29 CFR

1902.4(c)(2)(viii)). The State has provisions concerning imminent

danger and protection of trade secrets in its law, regulations and

field operations manual which are similar to the Federal requirements.

There were no imminent danger situations identified during the

evaluation period. There were no Complaints About State Program

Administration (CASPA's) filed concerning the protection of trade

secrets during the report period.

(e) Right of Entry; Advance Notice. A State program is expected to

have authority for right of entry to inspect and compulsory process to

enforce such right equivalent to the Federal program (section 18(c)(3)

of the Act and 29 CFR 1902.3(e)). In addition, a State is expected to

prohibit advance notice of inspection, allowing exceptions thereto no

broader than the Federal program (29 CFR 1902.3(f)). North Carolina

General Statute 95-133 authorizes the Commissioner to enter and inspect

all covered workplaces in terms substantially identical to those in the

Federal Act. The North Carolina statute also allows the Commissioner to

apply for a warrant to permit entry into such establishments that have

refused entry for the purpose of inspection or investigation. The North

Carolina law allows the Commissioner to issue subpoenas ``to require

the attendance and testimony of witnesses and the production of

evidence under oath'' in regard to Divisional inspections and

investigations. The North Carolina law also prohibits advance notice,

and implementing procedures for exceptions to this prohibition are

substantially identical to the Federal procedures.

In order to be found qualified for final approval, a State is

expected to take action to enforce its right of entry when denied (29

CFR 1902.37(b)(9)) and to adhere to its advance notice procedures.

North Carolina had 10 denials of entry, during the 18(e) evaluation

period, and was successful in obtaining warrants for nine (90%) of

them. North Carolina has adopted and implemented procedures for advance

notice similar to the Federal procedures.

(f) Citations, Penalties, and Abatement. A State plan is expected

to have authority and procedures for promptly notifying employers and

employees of violations identified during inspections, for the purpose

of effective first-instance sanctions against employers found in

violation of standards and for prompt employer notification of such

penalties (29 CFR 1902.4(c)(2) (x) and (xi)). The North Carolina plan,

through its law, regulations and field operations manual has

established a system similar to the Federal program to provide for the

prompt issuance of citations to

[[Page 66598]]

employers delineating violations and establishing reasonable abatement

periods, requiring posting of such citations for employee information,

and proposing penalties.

In order to be qualified for final approval, the State, in actual

operation, must be found to conduct competent inspections in accordance

with approved procedures and to obtain adequate information to support

resulting citations (29 CFR 1902.37(b)(10)), to issue citations,

proposed penalties and failure-to-abate notifications in a timely

manner (29 CFR 1902.37(b)(11)), to propose penalties for first-instance

violations that are at least as effective as those under the Federal

program (29 CFR 1902.37(b)(12)), and to ensure abatement of hazards

including issuance of failure-to-abate notices and appropriate

penalties (29 CFR 1902.37(b)(13)).

Procedures for the 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. The State follows

inspection procedures, including documentation procedures, which are

similar to the Federal procedures. The 18(e) Evaluation Report notes

overall adherence by North Carolina to these procedures. North Carolina

cited an average of 5 violations per safety inspection and 3.9

violations per health inspection; and 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. North Carolina's lapse time

from the opening conference 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 lapse time.

North Carolina's procedures for calculation of penalties are

similar to those of Federal OSHA. The 18(e) Evaluation Report noted

that North Carolina proposes appropriate penalties. The average penalty

for serious safety violations was $1,215.10 and the average serious

health penalty was $1,056.30. North Carolina's abatement periods for

serious violations averaged 15.5 days for safety and 6.8 days for

health.

(g) Contested Cases. In order to be considered for initial approval

and certification, a State plan must have authority and procedures for

employer contest of citations, penalties and abatement requirements at

full administrative or judicial hearings. Employees must also have the

right to contest abatement periods and the opportunity to participate

as parties in all proceedings resulting from an employer's contest (29

CFR 1902.4(c)(2)(xii)). North Carolina's procedures for employer and

employee contest of citations, penalties and abatement requirements and

for ensuring employees' rights are contained in the law, regulations

and field operations manual made a part of the record in this

proceeding. As noted elsewhere in this notice, the North Carolina plan

provides for the review of contested cases by the independent North

Carolina Occupational Safety and Health Review Board. State regulation

and procedures provide a 20 working day period for informal conference

which, if held, results in either a settlement agreement or a Notice of

No Change which, in turn, may be contested to the Review Board within

15 working days. On average 4.6% of all inspections with citations are

contested.

To qualify for final approval, the State must seek review of any

adverse adjudications and take action to correct any enforcement

program deficiencies resulting from adverse administrative or judicial

determinations (29 CFR 1902.37(b)(14)). The North Carolina 18(e)

Evaluation Report noted no instances of adverse adjudications.

(h) Enforcement Conclusion. In summary, the Assistant Secretary

finds that enforcement operations provided under the North Carolina

plan are competently planned and conducted, and are overall at least as

effective as Federal OSHA enforcement.

(4) Public Employee Program: Section 18(c)(6) of the Act requires

that a State which has an approved plan must maintain an effective and

comprehensive safety and health program applicable to all employees of

public agencies of the State and its political subdivisions, which

program must be as effective as the standards contained in an approved

plan. 29 CFR 1902.3(j) requires that a State's program for public

employees be as effective as the State's program for private employees

covered by the plan. 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.

During the 18(e) Evaluation period, North Carolina conducted 136

public sector inspections. The proportion of inspections dedicated to

the public sector (5% of total inspections) during the evaluation

period was appropriate to the needs of public employees.

Because North Carolina's performance in the public sector is

comparable to that in the private sector, OSHA concludes that the North

Carolina program meets the criteria in 29 CFR 1902.3(j).

(5) Staffing and Resources. Section 18(c)(4) of the Act requires

State plans to provide the qualified personnel necessary for the

enforcement of standards. In accordance with 29 CFR 1902.37(b)(1), one

factor which OSHA must consider in evaluating a plan for final approval

is whether the State has a sufficient number of adequately trained and

competent personnel to discharge its responsibilities under the plan.

The North Carolina plan provides for 64 safety compliance officers

and 51 industrial hygienists as set forth in the North Carolina FY 1996

and FY 1997 grant applications. 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.

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.

Because North Carolina has allocated sufficient enforcement staff

to meet the revised benchmarks for that State, and personnel are

trained and competent, the requirements for final approval set forth in

29 CFR 1902.37(b)(1), and in the court order in AFL-CIO v. Marshall,

supra, are being met by the North Carolina plan.

Section 18(c)(5) of the Act requires that the State devote adequate

funds to administration and enforcement of its standards. The North

Carolina plan was funded at $12,469,715 in FY 1996. ($3,131,400 (25%)

of the funds were provided by Federal OSHA and $9,338,315 (75%) were

provided by the State.)

As noted in the 18(e) Evaluation report, North Carolina's funding

is judged sufficient in absolute terms; moreover, the State allocates

its resources to the various aspects of the program in an effective

manner. On this basis, OSHA finds that North Carolina has provided

sufficient funding and

[[Page 66599]]

resources for the various activities carried out under the plan.

(6) Record and Reports: State plans must assure that employers in

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

plan were not in effect (section 18(c)(7) of the Act and 29 CFR

1902.3(k)). The plan must also provide assurance that the designated

agency will make such reports to the Secretary in such form and

containing such information as he may from time to time require

(section 18(c)(8) of the Act and 29 CFR 1902.4(1)).

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 well as the OSHA Data

Initiative. The State participates and has assured its continuing

participation with OSHA in the Integrated Management Information System

(IMIS) as a means of providing reports on its activities to OSHA.

For the foregoing reasons, the OSHA finds that North Carolina has

met the requirements of sections 18(c) (7) and (8) of the Act on

employer and State reports to the Secretary.

(7) Voluntary Compliance: A State plan is required to undertake

programs to encourage voluntary compliance by employers and employees

(29 CFR 1902.4(c)(2)(xiii)).

North Carolina, in the private sector, 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.

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 was one of the semi-finalists in the 1996

Innovations in American Government Awards program.

North Carolina also has initiated a Cooperative Assessment Program

for ergonomics which encourages employers who are being inspected 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 under the plan. In the private sector on-site

consultation services are provided to employers under a cooperative

agreement with OSHA under section 7(c)(1) of the Act and 29 CFR Part

1908.

Accordingly, OSHA finds that North Carolina has established and is

administering an effective voluntary compliance program.

(8) 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 lost workday case rate for all industries remained at

3.5 as it has been since 1989. There were slight increases in

manufacturing, from 4.0 in 1993 to 4.1 in 1994, and in construction,

from 4.7 in 1993 to 5.1 in 1994, but both areas were still below the

nationwide rate of 3.8 for all industries, 5.5 for manufacturing, and

5.5 for construction.

OSHA finds that during the evaluation period trends in worker

injury and illness in North Carolina were comparable with those in

States with Federal enforcement; actual injury and illness rates within

the State were lower.

Decision

OSHA has carefully reviewed the record developed during the above

described proceedings, including all comments received thereon. The

present Federal Register document sets forth the findings and

conclusions resulting from this review.

In light of all the facts presented on the record, the Assistant

Secretary has determined that the North Carolina State plan for

occupational safety and health, which has been monitored for at least

one year subsequent to certification, is in actual operation at least

as effective as the Federal program and meets the statutory criteria

for State plans in section 18(e) of the Act and implementing

regulations at 29 CFR Part 1902. Therefore, the North Carolina State

plan is hereby granted final approval under section 18(e) of the Act

and implementing regulations at 29 CFR part 1902, effective December

10, 1996.

Under this 18(e) determination, North Carolina will be expected to

maintain a State program which will continue to be at least as

effective as operations under the Federal program in providing employee

safety and health at covered workplaces. This requirement includes

submitting all required reports to the Assistant Secretary as well as

submitting plan supplements documenting State-initiated program

changes, changes required in response to adverse evaluation findings,

and responses to mandatory Federal program changes. In addition, North

Carolina must continue to allocate sufficient safety and health

enforcement staff to meet the benchmarks for State compliance staffing

established by the Department of Labor, or any revision to those

benchmarks.

Effect of Decision

The determination that the criteria set forth in section 18(c) of

the Act and 29 CFR Part 1902 are being applied in actual operations

under the North Carolina plan terminates OSHA authority for Federal

enforcement of its standards in North Carolina, in accordance with

section 18(e) of the Act, in those issues covered under the State plan.

Section 18(e) provides that upon making this determination ``the

provisions of sections 5(a)(2), 8 (except for the purpose of carrying

out subsection (f) of this section), 9, 10, 13, and 17, shall not apply

with respect to any occupational safety and health issues covered under

the plan, but the Secretary may retain jurisdiction under the above

provisions in any proceeding commenced under section 9 or 10 before the

date of determination.''

Accordingly, Federal authority to issue citations for violation of

OSHA standards (sections 5(a)(2) and 9); to conduct inspections (except

those necessary to conduct evaluations of the plan under section 18(f),

and other inspections, investigations or proceedings necessary to carry

out Federal responsibilities which are not specifically preempted by

section 18(e) (section 8); to conduct enforcement proceedings in

contested cases (section 10); to institute proceedings to correct

imminent dangers (section 13); and to propose civil penalties or

initiate criminal proceedings for violations of the Federal OSH Act

(section 17) is relinquished as of the effective date of this

determination.

Federal authority under provisions of the Act not listed in section

18(e) is unaffected by this determination. Thus, for example, the

Assistant Secretary

[[Page 66600]]

retains his authority under section 11(c) of the Act with regard to

complaints alleging discrimination against employees because of the

exercise of any right afforded to the employee by the Act although such

complaints may be initially referred to the State for investigation.

Any proceeding initiated by OSHA under sections 9 and 10 of the Act

prior to the date of this final determination would remain under

Federal jurisdiction. The Assistant Secretary also retains his

authority under section 6 of the Act to promulgate, modify or revoke

occupational safety and health standards which address the working

conditions of all employees, including those in States which have

received an affirmative 18(e) determination. In the event that a

State's 18(e) status is subsequently withdrawn and Federal authority

reinstated, all Federal standards, including any standards promulgated

or modified during the 18(e) period, would be Federally enforceable in

the State.

In accordance with section 18(e), this determination relinquishes

Federal OSHA authority only with regard to occupational safety and

health issues covered by the North Carolina plan, and OSHA retains full

authority over issues which are not subject to State enforcement under

the plan. Thus, for example, Federal OSHA retains its authority to

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

orders which relate to safety or health coverage of private sector

maritime activities (occupational safety and health standards

comparable to 29 CFR parts 1915, shipyard employment; 1917, marine

terminals; 1918, longshoring; and 1919, gear certification, as well as

provisions of general industry standards (29 CFR part 1910) appropriate

to hazards found in these employments); 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. In addition Federal OSHA may subsequently initiate the exercise

of jurisdiction over any issue (hazard, industry, geographical area,

operation or facility) for which the State is unable to provide

effective coverage for reasons which OSHA determines are not related to

the required performance or structure of the State plan.

As provided by section 18(f) of the Act, the Assistant Secretary

will continue to evaluate the manner in which the State is carrying out

its plan. Section 18(f) and regulations at 29 CFR part 1955 provide

procedures for the withdrawal of Federal approval should the Assistant

Secretary find that the State has subsequently failed to comply with

any provision or assurance contained in the plan. Additionally, the

Assistant Secretary is required to initiate proceeding to revoke an

18(e) determination and reinstate concurrent Federal authority under

procedures set forth in 29 CFR 1902.47, et seq., if his evaluations

show that the State has substantially failed to maintain a program

which is at least as effective as operations under the Federal program,

or if the State does not submit program change supplements to the

Assistant Secretary as required by 29 CFR part 1953.

Explanation of Changes to 29 CFR Part 1952

29 CFR part 1952 contains, for each State having an approved plan,

a subpart generally describing the plan and setting forth the Federal

approval status of the plan. 29 CFR 1902.43(a)(3) requires that notices

of affirmative 18(e) determinations be accompanied by changes to part

1952 reflecting the final approval decision. This notice makes changes

to subpart I of part 1952 to reflect the final approval of the North

Carolina plan.

The table of contents for part 1952, subpart I, has been revised to

reflect the following changes:

The heading of section 1952.152, Completion of developmental steps,

has been revised by adding the words ``and certification'' at the end.

A new section 1952.154, Final approval determination, which

formerly was reserved, has been added to reflect the determination

granting final approval of the plan. This section contains a more

accurate description of the current scope of the plan than the one

contained in the initial approval decision.

Section 1952.155, Level of Federal enforcement, has been revised to

reflect the State's 18(e) status. This replaces the former description

of the relationship of State and Federal enforcement under an

Operational Status agreement voluntarily suspending Federal enforcement

authority, which was entered into on February 20, 1975. (Federal

enforcement jurisdiction was partially reinstituted on October 24,

1991, and again fully suspended on March 7, 1995.) Federal concurrent

enforcement authority has been relinquished as part of the present

18(e) determination for North Carolina. Section 1952.155 describes the

issues over which Federal authority has been terminated and the issues

for which it has been retained in accordance with the discussion of the

effects of the 18(e) determination set forth earlier in the present

Federal Register notice.

Section 1952.156, Where the plan may be inspected, has been revised

to reflect a new room number N3700 for the Office of State Programs,

Directorate of Federal-State Operations, Occupational Safety and Health

Administration, U.S. Department of Labor, Washington, DC 20210; and a

new street address 319 Chapanoke Road--Suite 105 for the North Carolina

Department of Labor, Division of Occupational Safety and Health,

Raleigh, North Carolina 27603-3432.

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.

This document was prepared under the direction of Joseph A. Dear,

Assistant Secretary of Labor for Occupational Safety and Health. It is

issued under Section 18 of the OSH Act, (29 U.S.C. 667), 29 CFR Part

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

Signed at Washington, DC, this 10th day of December 1996.

Joseph A. Dear,

Assistant Secretary.

Part 1952 of 29 CFR is hereby amended as follows:

PART 1952--[AMENDED]

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

follows:

Authority: Section 18 of the OSH Act, (29 U.S.C. 667), 29 CFR

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

2. The table of contents for part 1952, subpart I is revised to

read as follows.

Subpart I--North Carolina

Sec.

1952.150 Description of the plan as initially approved.

1952.151 Developmental schedule.

1952.152 Completion of developmental steps and certification.

1952.153 Compliance staffing benchmarks.

[[Page 66601]]

1952.154 Final approval determination.

1952.155 Level of Federal enforcement.

1952.156 Where the plan may be inspected.

1952.157 Changes to approved plan.

Sec. 1952.152 [Amended]

3. The heading of Sec. 1952.152 is revised to read ``Completion of

developmental steps and certification.''

4. A new Sec. 1952.154 is added, and Secs. 1952.155 and 1952.156

are revised to read as follows:

Sec. 1952.154 Final approval determination.

(a) In accordance with section 18(e) of the Act and procedures in

29 CFR part 1902, and after determination that the State met the

``fully effective'' compliance staffing benchmarks as revised in 1984

and 1996 in response to a court order in AFL-CIO versus Marshall, 570

F.2d 1030 (D.C. Cir. 1978), and was satisfactorily providing reports to

OSHA through participation in the Federal-State Integrated Management

Information System, the Assistant Secretary evaluated actual operations

under the North Carolina State plan for a period of at least one year

following certification of completion of developmental steps ( 41 FR

43896). Based on the Biennial Evaluation Report covering the period of

October 1, 1993 through September 30, 1995, an 18(e) Evaluation Report

covering the period October 1, 1995 through June 30, 1996, and after

opportunity for public comment, the Assistant Secretary determined that

in operation the State of North Carolina's occupational safety and

health program is at least as effective as the Federal program in

providing safe and healthful employment and places of employment and

meets the criteria for final State plan approval in section 18(e) of

the Act and implementing regulations at 29 CFR part 1902. Accordingly,

the North Carolina plan was granted final approval and concurrent

Federal enforcement authority was relinquished under section 18(e) of

the Act effective December 10, 1996.

(b) Except as otherwise noted, the plan which has received final

approval covers all activities of employers and all places of

employment in North Carolina. The plan does not cover Federal

government employers and employees; private sector maritime activities;

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.

(c) North Carolina is required to maintain a State program which is

at least as effective as operations under the Federal program; to

submit plan supplements in accordance with 29 CFR part 1953; to

allocate sufficient safety and health enforcement staff to meet the

benchmarks for State staffing established by the U.S. Department of

Labor, or any revisions to those benchmarks; and, to furnish such

reports in such form as the Assistant Secretary may from time to time

require.

Sec. 1952.155 Level of Federal enforcement.

(a) As a result of the Assistant Secretary's determination granting

final approval to the North Carolina State plan under section 18(e) of

the Act, effective December 10, 1996, occupational safety and health

standards which have been promulgated under section 6 of the Act do not

apply with respect to issues covered under the North Carolina Plan.

This determination also relinquishes concurrent Federal OSHA authority

to issue citations for violations of such standards under section

5(a)(2) and 9 of the Act; to conduct inspections and investigations

under section 8 (except those necessary to conduct evaluation of the

plan under section 18(f) and other inspections, investigations, or

proceedings necessary to carry out Federal responsibilities not

specifically preempted by section 18(e)); to conduct enforcement

proceedings in contested cases under section 10; to institute

proceedings to correct imminent dangers under section 13; and to

propose civil penalties or initiate criminal proceedings for violations

of the Federal OSH Act under section 17. The Assistant Secretary

retains jurisdiction under the above provisions in any proceeding

commenced under section 9 or 10 before the effective date of the 18(e)

determination.

(b)(1) In accordance with section 18(e), final approval

relinquishes Federal OSHA authority only with regard to occupational

safety and health issues covered by the North Carolina plan. OSHA

retains full authority over issues which are not subject to State

enforcement under the plan. Thus, Federal OSHA retains its authority

relative to safety and health in private sector maritime activities and

will continue to enforce all provisions of the Act, rules or orders,

and all Federal standards, current or future, specifically directed to

private sector maritime activities (occupational safety and health

standards comparable to 29 CFR Parts 1915, shipyard employment; 1917,

marine terminals; 1918, longshoring; and 1919, gear certification, as

well as provisions of general industry standards (29 CFR Part 1910)

appropriate to hazards found in these employments); 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. Federal jurisdiction is also retained with respect

to Federal government employers and employees.

(2) In addition, any hazard, industry, geographical area, operation

or facility over which the State is unable to effectively exercise

jurisdiction for reasons which OSHA determines are not related to the

required performance or structure of the plan shall be deemed to be an

issue not covered by the State plan which has received final approval,

and shall be subject to Federal enforcement. Where enforcement

jurisdiction is shared between Federal and State authorities for a

particular area, project, or facility, in the interest of

administrative practicability Federal jurisdiction may be assumed over

the entire project or facility. In any of the aforementioned

circumstances, Federal enforcement authority may be exercised after

consultation with the State designated agency.

(c) Federal authority under provisions of the Act not listed in

section 18(e) is unaffected by final approval of the North Carolina

State plan. Thus, for example, the Assistant Secretary retains his

authority under section 11(c) of the Act with regard to complaints

alleging discrimination against employees because of the exercise of

any right afforded to the employee by the Act, although such complaints

may be referred to the State for investigation. The Assistant Secretary

also retains his authority under section 6 of the Act to promulgate,

modify or revoke occupational safety and health standards which address

the working conditions of all employees, including those in States

which have received an affirmative 18(e) determination, although such

standards may not be Federally applied. In the event that the State's

18(e) status is subsequently withdrawn and Federal authority

reinstated, all Federal standards, including any standards promulgated

or modified during the 18(e) period, would be Federally enforceable in

that State.

(d) As required by section 18(f) of the Act, OSHA will continue to

monitor the operations of the North Carolina State program to assure

that the provisions of the State plan are substantially complied with

and that the program remains at least as effective as the Federal

program. Failure by the State to comply with its obligations may result

in the revocation of the final approval determination under Section

18(e),

[[Page 66602]]

resumption of Federal enforcement, and/or proceedings for withdrawal of

plan approval.

Sec. 1952.156 Where the plan may be inspected.

A copy of the principal documents comprising the plan may be

inspected and copied during normal business hours at the following

locations:

Office of State Programs, Directorate of Federal-State Operations,

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

Labor, 200 Constitution Avenue NW, Room N3700, Washington, DC 20210;

Office of the Regional Administrator, Occupational Safety and Health

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

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.

[FR Doc. 96-32083 Filed 12-17-96; 8:45 am]

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