New Mexico State Plan; Approval of Plan Supplement; Change in Level of Federal Enforcement: Military Facilities and Indian Reservations

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

New Mexico State Plan; Approval of Plan Supplement; Change in

Level of Federal Enforcement: Military Facilities and Indian

Reservations

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Final rule.

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SUMMARY: This document gives notice of the approval of a State-

initiated plan change and resumption of Federal enforcement

responsibility in the State of New Mexico over private sector

employment on military facilities and bases, and, to the extent

permitted by applicable law, over tribal or private sector employment

within any Indian reservation or lands under the control of a tribal

government.

OSHA is hereby amending its regulations on approved plans to

reflect this change to the level of Federal enforcement authority in

New Mexico.

EFFECTIVE DATE: September 24, 1997.

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

Information and Consumer Affairs, Occupational Safety and Health

Administration, U.S. Department of Labor, Room, N-3637, 200

Constitution Avenue, N.W., Washington, D.C. 20210, (202) 219-8148.

SUPPLEMENTARY INFORMATION:

A. Background

Section 18 of the Occupational Safety and Health Act of 1970 (The

Act), 29 U.S.C. 667, provides that States which wish to assume

responsibility for developing and enforcing their own occupational

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

Federal approval of, a State plan. State plan approval occurs in stages

which include initial approval under section 18(c) of the Act and,

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

initial approval and final approval, there is a period of concurrent

Federal/State jurisdiction within a State operating an approved plan.

See 29 CFR 1954.3 for guidelines and procedures.

The New Mexico Occupational Health and Safety State plan was

approved under section 18(c) of the Act of 1970 and part 1902 of this

chapter on December 10, 1975 (40 FR 57455), and certified by OSHA as

having completed all of its developmental steps on December 4, 1984 (49

FR 48915). On December 5, 1981, OSHA and the State of New Mexico

entered into an Operational Status Agreement which suspended the

exercise of Federal concurrent enforcement authority in all except

specifically identified areas. The pertinent provisions concerning the

level of Federal enforcement in the State are codified at 29 CFR

1952.365.

By letter dated January 3, 1997, from Sam A. Rogers, Bureau Chief,

Occupational Health and Safety Bureau, New Mexico Environment

Department, to OSHA Regional Administrator Emzell Blanton, Jr., the

State of New Mexico has requested that Federal OSHA to resume

enforcement authority over private sector employment on military

facilities and bases and, over tribal or private sector employment

within any Indian reservation or lands under the control of a tribal

government. After extensive research which identified numerous problems

with regard to the exercise of New Mexico occupational health and

safety enforcement authority, the State of New Mexico, for

administrative convenience, will exclude coverage of all private sector

employment on Federal military lands and facilities, including but not

limited to Kirkland Air Force Base, Fort Bliss Military Reservation,

White Sands Missile Range Military Reservation, Holloman Air Force

Base, Cannon Air Force Base, Fort Wingate Military Reservation, Fort

Bayard Veterans' Hospital, Albuquerque Veterans' Hospital, Santa Fe

National Cemetery, etc., from under its State plan. In addition, since

all of New Mexico's Indian tribes have treaties with the Federal

Government and the applicability of State laws and jurisdiction on

tribal reservations and other Indian owned land have been questionable

at best, New Mexico will also exclude tribal or private sector

employment within any Indian reservation or lands under the control of

a tribal government from coverage under its State plan.

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B. Location of Supplement for Inspection and Copying

A copy of the plan supplement, along with the approved plan, may be

inspected and copied during normal business hours at the following

locations: Office of the Regional Administrator, U.S. Department of

Labor-OSHA, 525 Griffin Street, Room 602, Dallas, Texas 75202; Office

of the Secretary, Environment Department, 1190 St. Francis Drive, Room

2200-North, Santa Fe, New Mexico 87503; and the Office of State

Programs, 200 Constitution Avenue, N.W., Room N3700, Washington, D.C.

20210. For electronic copies of this notice, contact OSHA's WebPage at

http://www.osha.gov/.

C. Public Participation

Under 29 CFR 1953.2(c), the Assistant Secretary may prescribe

alternative procedures to expedite the review process or for other good

cause which may be consistent with applicable laws. To assure worker

protection under the OSH Act, the Assistant Secretary finds that New

Mexico's State-initiated plan change requesting that Federal OSHA

resume enforcement authority in New Mexico over private sector

employment on military facilities and bases, and, to the extent

permitted by applicable law, over tribal or private sector employment

within any Indian reservation or lands under the control of a tribal

government, is consistent with Federal requirements, and with

commitments contained in the plan and previously made available for

public comment. Good cause is therefore found for approval of this plan

supplement, and further public participation is unnecessary.

D. Decision

After careful consideration, OSHA is approving under Part 1953 of

this chapter, the New Mexico State-initiated plan change concerning the

level of Federal enforcement authority, as described in the 1981 New

Mexico Operational Status Agreement. Concurrently, OSHA is announcing

its resumption of Federal enforcement authority in New Mexico over the

coverage of private sector employment on Federal military facilities

and bases, and, to the extent permitted by applicable law, over tribal

or private sector employment within any Indian reservation or lands

under the control of a tribal government. OSHA is hereby amending 29

CFR part 1952, Subpart DD, to reflect this change in the level of

Federal enforcement and to revise the format.

List of Subjects in 29 CFR Part 1952

Intergovernmental relations, Law enforcement, Occupational safety

and health.

This document was prepared under the direction of Greg Watchman,

Acting 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 18th day of September 1997.

Greg Watchman,

Acting Assistant Secretary of Labor.

For the reasons set out in the preamble 29 CFR part 1952, Subpart

DD (New Mexico) is hereby amended as set forth below:

PART 1952--APPROVED STATE PLANS FOR ENFORCEMENT OF STATE STANDARDS

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

follows:

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

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

Subpart DD--New Mexico

2. Section 1952.365 is revised to read as follows:

Sec. 1952.365 Level of Federal enforcement.

(a) Pursuant to Secs. 1902.20(b)(1)(iii) and 1954.3 of this

chapter, under which an operational status agreement has been entered

into between OSHA and New Mexico, effective October 5, 1981, and based

on a determination that New Mexico is operational in issues covered by

the New Mexico occupational health and safety plan, discretionary

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

667(e)) will not be initiated with regard to Federal occupational

safety and health standards in issues covered under 29 CFR parts 1910,

1926 and 1928 except as provided in this section. The U.S. Department

of Labor will continue to exercise authority, among other things, with

regard to:

(1) Complaints filed with the U.S. Department of Labor alleging

discrimination under section 11(c) of the Act (29 U.S.C. 660(c));

(2) Enforcement with respect to private sector maritime employment

including 29 CFR parts 1915, 1917, 1918, 1919 (shipyard employment;

marine terminals; longshoring and gear certification), and general

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

appropriate to hazards found in these employments, which issues have

been specifically excluded from coverage under the State plan;

(3) Enforcement in situations where the State is refused and is

unable to obtain a warrant or enforce its right of entry;

(4) Enforcement of new Federal standards until the State adopts a

comparable standard;

(5) Enforcement of unique and complex standards as determined by

the Assistant Secretary;

(6) Enforcement in situations when the State is temporarily unable

to exercise its enforcement authority fully or effectively;

(7) Enforcement of occupational safety and health standards at all

Federal and private sector establishments on military facilities and

bases, including but not limited to Kirkland Air Force Base, Fort Bliss

Military Reservation, White Sands Missile Range Military Reservation,

Holloman Air Force Base, Cannon Air Force Base, Fort Wingate Military

Reservation , Fort Bayard Veterans' Hospital, Albuquerque Veterans'

Hospital, Santa Fe National Cemetery;

(8) Enforcement of occuaptional safety and health standards, to the

extent permitted by applicable law, over tribal or private sector

employment within any Indian reservation and lands under the control of

a tribal government; and

(9) Investigations and inspections for the purpose of the

evaluation of the New Mexico plan under sections 18 (e) and (f) of the

Act (29 U.S.C. 667 (e) and (f)).

(b) The Regional Administrator for Occupational Safety and Health

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

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

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

safety and health protection to employees in New Mexico.

3. Section 1952.367 is amended by adding paragraph (b) to read as

follows:

Sec. 1952.367 Changes to approved plans.

* * * * *

(b) In accordance with Subpart E of part 1953 of this chapter, New

Mexico's State plan amendment, dated January 3, 1997, excluding

coverage of all private sector employment on Federal military

facilities and bases (see Sec. 1952.365), and, to the extent permitted

by applicable law, over tribal or private sector employment within any

Indian reservation and lands under the control of a tribal government,

from its State plan was approved by the Acting

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Assistant Secretary on September 24, 1997.

[FR Doc. 97-25306 Filed 9-23-97; 8:45 am]

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