Nevada 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

Occupational Safety and Health Administration

29 CFR Part 1952

[Docket No. T-033]

Nevada 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 Nevada

State occupational safety and health plan, as administered by the

Nevada Division of Industrial Relations, 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 Nevada plan. This document 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 December 16, 1999.

ADDRESSES: Written comments or requests for a hearing should be

submitted, in duplicate, to the Docket Officer, Docket No. T-033, U.S.

Department of Labor, Room N2625 200 Constitution Avenue N.W.,

Washington. DC 20210, (202) 693-2350. Comments limited to 10 pages or

fewer may also be transmitted by FAX to: (202) 693-1648, provided that

the original and one copy of the comment are sent to the Docket Office

immediately thereafter. Electronic comments may be submitted on the

Internet at: http://www.osha-slc.gov/e-comments/e-comments-nevada.html

.

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) 693-1999.

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 and whether final approval should

be granted.

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 62139]]

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 Nevada Plan and of Its Compliance Staffing

Benchmarks

Nevada Plan

On December 12, 1972, Nevada 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 March 16, 1973 a notice was published in the

Federal Register (38 FR 7157) 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). No other written comments were received, and

no request for an informal hearing was received. In response to

concerns raised by the AFL-CIO, as well as issues noted by OSHA, the

State made clarifications and revisions to its plan, particularly in

the areas of employee rights. Thereafter, on January 4, 1974, the

Assistant Secretary published a Federal Register notice (39 FR 1008)

granting initial approval of the Nevada plan as a developmental plan

and adopting Subpart W of Part 1952 containing the decision and

describing the plan.

The Nevada Division of Industrial Relations in the State Department

of Business and Industry is designated as the agency having

responsibility for administering the plan throughout the State under

the authority of the Nevada Occupational Safety and Health Act (Nevada

Revised Statutes, Chapter 618). The plan covers all private sector

employers with the exception of private employers on Indian land,

Federal employers and, to the extent that any exist in Nevada,

employers engaged in longshoring and maritime operations upon any

navigable waters in the State. Such employers remain subject to Federal

OSHA jurisdiction. Federal OSHA also retains authority for coverage of

the United States Postal Service (USPS), including USPS employees,

contract employees, and contractor-operated facilities engaged in USPS

mail operations. The State's coverage extends to all State and local

government employers. The plan provides for the automatic adoption by

Nevada of standards which are identical to Federal occupational safety

and health standards, on the effective date of the Federal standard,

unless the State adopts an alternate standard which is as effective as

the Federal standard. 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: inspection and citation procedures; 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. Notices of contest of citations and penalties are

heard by the Occupational Safety and Health Review Board, an

independent administrative board. Decisions of the Review Board may be

appealed to the appropriate State District Court.

The Assistant Secretary's initial approval of the Nevada

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

required developmental steps, and a provision for the exercise of

discretionary concurrent Federal enforcement during the period of

initial approval were codified in the Code of Federal Regulations (29

CFR Part 1952, Subpart W, 39 FR 1008, January 4, 1974).

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 January 1, 1977. These

``developmental steps'' included enactment of amendments to the Nevada

Occupational Safety and Health Act, promulgation of State occupational

safety and health standards 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:

regulations for inspections, citations and proposed penalties;

recordkeeping and reporting regulations; variance regulations;

compliance procedures; and, rules of procedure for the Nevada

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 Nevada Subpart of 29 CFR Part 1952

was amended to reflect each of these approval determinations (see 29

CFR 1952.292).

On August 13, 1981, in accordance with procedures at 29 CFR 1902.34

and 1902.35, the Assistant Secretary certified that Nevada had

satisfactorily completed all developmental steps (46 FR 42844; August

25, 1981). In certifying the plan, the Assistant Secretary found the

structural features of the program--the statutes, standards,

regulations, and written procedures for administering the Nevada 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 December 9, 1981, OSHA and the State of Nevada entered into an

Operational Status Agreement which suspended the exercise of Federal

concurrent enforcement authority in Nevada in all except specifically

identified areas. (See 47 FR 25323).

The State has submitted plan supplements describing changes to its

program since plan approval. OSHA's approval of major plan changes has

been announced in Federal Register notices published periodically.

Approval of more recent change submissions will be published in the

Federal Register as appropriate.

Nevada 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

[[Page 62140]]

benchmarks for all approved State plans, including benchmarks of 7

safety and 9 health compliance officers for Nevada. The 1978 Court

Order noted that new information might warrant an adjustment by OSHA of

the fully effective benchmarks. In July 1986, Nevada, in conjunction

with OSHA, completed a reassessment of the levels resulting in proposed

revised compliance staffing benchmarks of 11 safety and 5 health

compliance officers. After opportunity for public comment and service

on the AFL-CIO, the Assistant Secretary approved these revised staffing

requirements on September 11, 1987 (52 FR 34381).

Determination of Eligibility

This Federal Register notice announces the eligibility of the

Nevada plan for final approval determination under section 18(e). (29

CFR 1902.39(c) requires that notice of this determination of

eligibility be published in order to seek public input prior to the

Assistant Secretary's decision.) The determination of eligibility is

based upon OSHA's findings that:

(1) The Nevada plan has been monitored in actual operation for at

least one year following certification. The results of OSHA's

monitoring of the plan since the commencement of plan operations are

contained in written evaluation reports which are made available to the

State and to the public. The results of OSHA's most recent post-

certification monitoring are set forth in a comprehensive evaluation

report covering the period of July 1, 1995 through March 31, 1999, with

special attention to the period from October 1, 1997 to March 31, 1999,

which has been made part of the record of the present proceedings and

is available in Docket T-033, together with all previous evaluation

reports since 1981.

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

staffing. On September 11, 1987, 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 11 safety and 5 health

compliance officers for Nevada based on an assessment of State-specific

characteristics and historical experiences. Nevada has allocated

positions well in excess of these numbers, as evidenced by the FY 1999

Application for Federal Assistance in which the State has committed

itself to funding the State share of salaries for 22 safety and 9

health compliance officers. The FY 1999 grant application has been made

part of the record in the present proceeding.

Nevada provides State funds for its program well in excess of the

50% match of Federal funding required. The additional funds have

allowed the State to expand staffing and activities in both its

enforcement and voluntary compliance programs.

(3) Nevada participates and has assured its continued participation

in the Integrated Management Information System (IMIS) developed by

OSHA.

Like other States with approved plans, Nevada has developed a five-

year Strategic Plan to guide its efforts to improve occupational safety

and health in the State. The State's strategic goals are similar to

those of Federal OSHA (improve workplace safety and health, change

workplace culture, and assure public confidence). The Strategic Plan

and the FY 1999 Annual Performance Plan are available in Docket T-033.

Issues for Determination in the 18(e) Proceedings

The Nevada 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 in a manner at least as effective

as the Federal program. 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 Nevada program as described in the most recent evaluation report,

considered in light of these regulatory criteria and the criteria in

section 18(c) of the Act, indicate that the regulatory indices and

criteria are being met. The Assistant Secretary accordingly has made an

initial determination that the Nevada 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 Nevada. 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 Nevada plan

provides for the automatic adoption of standards which are identical to

Federal standards. A new standard becomes effective in Nevada on the

effective date of the Federal standard. The State may adopt alternative

standards and has adopted some standards which do not have Federal

counterparts, such as standards concerning ammonium perchlorate and

tower cranes. Nevada also has regulations requiring pre-construction

safety conferences with the Division of Industrial Relations for

certain types of construction projects.

The State also requires employers with more than 10 employees to

implement safety and health programs, including a safety and health

committee for employers with more than 25 employees. For issues where

OSHA is considering issuing a rule, as in the case of safety and health

programs, the agency does not take action to decide whether the State

plan requirements are at least as effective until the Federal action is

complete. Nor can OSHA review this requirement for compliance with the

National Labor Relations Act (NLRA), which is independently

administered by the National Labor Relations Board. The Board's General

Counsel has noted in a written opinion that committee requirements

under State law do not amount to a per se violation of the NLRA;

however, the General Counsel has pointed out that employers must comply

with State laws in a manner which does not constitute an unfair labor

practice under the NLRA. Nevada's standards adoption process continued

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, page 16]

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

and application of such standards must be consistent 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 the effectiveness of

individual standards, 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 Nevada plan provides

for adoption of standards identical to Federal standards. Nevada also

generally adopts Federal interpretations

[[Page 62141]]

and thus assures at least as effective worker protection.

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 Nevada.

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). Nevada had five

requests for permanent variances during the 18(e) evaluation period.

Two requests were approved, two were denied, and one was canceled. The

granted variances were processed in accordance with State procedures.

[18(e) Evaluation Report, p. 16.] 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 Nevada 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.16].

(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)(l), and 1902.4(c).

Nevada uses a list of high hazard industries provided by OSHA to

schedule programmed general industry inspections and uses Dodge Reports

and local knowledge to schedule construction inspections. The State's

strategic plan is focusing on three industries with high rates of

injuries and illnesses: manufacturing, construction and hotel/casinos.

During the period from October 1997 though March 1999, 53% of the

State's safety inspections and 11% of health inspections were

programmed. During this period the 68% of programmed safety inspections

and 71% of programmed health inspections uncovered violations. This

exceeds the percentage of Federal programmed inspections with

violations and indicates that the State's targeting system is

effective. [18(e) Evaluation Report, p. 7]

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). Section 618.325 of the Nevada

Occupational Safety and Health Act provides for an inspector's right of

entry during regular hours to any place of employment. During the

evaluation period, there were 14 denials of entry. Entry was achieved

in 11 of these cases. This exceeds the Federal experience during the

period. [18(e) Evaluation Report, p. 9]

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 Nevada occupational safety and health

compliance program are set out in the Nevada Operations Manual, which

is patterned after Federal compliance documents, and the State follows

inspection procedures, including documentation procedures, which are

similar to Federal procedures. The Evaluation Report notes overall

adherence by Nevada to these procedures.

Identifying and Citing Hazards: Nevada cited an average of 2.7

violations per safety inspection and 3.3 violations per health

inspection. In addition to issuing citations, the State issues

``Notices of Violation'' for other-than-serious violations that do not

carry a penalty, when the employer agrees to abate the violation and

not to contest. During the evaluation period, 27% of both safety and

health violations were cited as serious. The percentage of serious

safety and health violations was lower than the comparable Federal

percentages. While OSHA has disagreed with the State on the

classification of some violations in the past, no systemic problems

relating to violation classification have been found. 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, pp.10-12]

Advance Notice: State plans must include a prohibition on advance

notice of inspections, and exceptions must be no broader than those

allowed by Federal OSHA procedure. See Sec. 1902.3(f). Nevada has

adopted approved procedures for advance notice similar to the Federal

procedures. During the evaluation period, Nevada did not grant any

advance notice of inspections.

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). Nevada has procedures similar to Federal OSHA for

processing and responding to complaints. The data indicate that during

the evaluation period the State was timely in responding to employee

complaints, responding to 92% of serious safety and health complaints

within the prescribed time frame of 30 days. During the period from

October 1997 through March 1999, 25% of State inspections were in

response to employee complaints. In 89.8% of cases during the period,

complainants were informed of inspection results within 20 working days

of citation issuance or, where no citations were issued, within 30

working days of the closing conference. The State also responds to non-

formal complaints by letter and utilizes a phone/fax system to expedite

response to non-serious complaints. [18(e) Evaluation Report, p. 10]

The State also has procedures similar to those of Federal OSHA which

require that an opportunity be provided for employee participation be

provided, either through representation on the walkaround or the

conduct of interviews with a reasonable number of employees. No

problems have been noted concerning employee participation in Nevada

inspections.

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). Section 618.445 of the

Nevada Occupational Safety and Health Act provides for discrimination

protection equivalent to that provided by Federal OSHA. A total of 136

investigations of complaints alleging discrimination were completed

during the evaluation period, of which 14 were found to be meritorious.

The State takes appropriate action in the courts on merit cases where

the employer does not voluntarily comply

[[Page 62142]]

with the State's proposed remedy. During the evaluation period, Nevada

experienced difficulty in meeting the 90-day time limit for completion

of discrimination investigations. The State is taking action to ensure

timely processing of complaints by training additional discrimination

investigators, and one of its strategic goals is the completion of 75%

of discrimination cases within 90 days. [18(e) Evaluation Report, p.

15]

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 40 days for safety and 53 days for

health. Both of the lapse times are comparable to Federal OSHA's time

lapse. [18 (e) Evaluation Report, p. 12]

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 factors

comparable to those required in the Federal program in calculating

penalties. See Secs. 1902.37(b)(12), 1902.3(d), and 1902.4(c) (x) and

(xi). Nevada's procedures for penalty calculation are similar to the

Federal procedures. During the evaluation period, Nevada proposed

higher penalties for serious violations than Federal OSHA. The average

penalty for serious safety violations was $1844 and the average serious

health penalty was $1336. [18(e) Evaluation Report, p. 12]

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). Eighty-eight percent (88%) of serious safety violations had

abatement periods of less than 30 days and 97% of serious health

violations had abatement periods of less than 60 days. This compares

favorably to Federal performance. The Notice of Violation policy has

been successful in assuring prompt abatement of other-than-serious

violations without litigation. [18(e) Evaluation Report, p. 12]

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). Nevada has taken action when appropriate to appeal adverse

decisions. The Nevada section 18(e) Evaluation Report noted that a case

involving egregious citations was appealed to the Nevada Supreme Court

by the State. The case was settled before hearing. [18(e) Evaluation

Report, p. 7]

(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 Nevada plan provides for 22 safety compliance officers and 9

industrial hygienists as set forth in the Nevada FY 1999 grant. This

staffing level exceeds the approved, revised ``fully effective''

benchmarks for Nevada for health and safety staffing, as discussed

elsewhere in this notice. At the close of the evaluation period the

State had 20 safety and 9 health compliance officers positions filled.

[18(e) Evaluation Report, p. 21] The State maintains offices in Carson

City, Reno, Elko and Las Vegas.

Since 1991, the State has consistently provided State matching

funds in excess of Federal funding. In Fiscal Year 1999, the State

provided 76% of the total budget for its occupational safety and health

program. State program funding in Fiscal Year 1999 is $4,917,275 total

($1,163,000 Federal, $3,754,275 State). [18(e) Evaluation Report, pp.

1, 22]

Nevada utilizes the OSHA Training Institute for most of its staff

training. The State also conducts internal training through staff

meetings regarding any new issues or standards. In addition,

enforcement and consultation staffs conduct joint regional meetings to

discuss standards and other issues to ensure that enforcement and

consultation have the same understanding of the requirements of the

standards.

(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 Nevada plan provides a program

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

including inspections, citations and proposal of penalties for serious

violations. During this evaluation period, the State conducted 4.4% of

its total inspections in the public sector. The results of these

inspections were comparable to those in the private sector. [18(e)

Evaluation Report, pp. 14-15]

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). Nevada's lost

workday case rate for private industry declined from 4.2 in 1994 to 3.3

in 1997. The lost workday case rate for construction decreased from 7.5

to 5.6, while there was substantial growth in the construction industry

particularly in the southern part of the State. The rate for

manufacturing increased slightly from 5.0 to 5.2. The rate for State

and local government decreased from 3.6 to 3.4. [18(e) Evaluation

Report, p. 18] Nevada also participates in the OSHA Data Initiative for

gathering employer-specific injury and illness rates.

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). Nevada employer recordkeeping requirements

are identical to those of Federal OSHA, and the State participates in

the BLS Annual Survey of Occupational Illness and Injuries and the OSHA

Data Initiative. 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 and submits other information and reports as

required.

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. The Nevada consultation program, which until July 1, 1999

operated its private sector component under the State plan rather than

OSHA's section 21(d) consultation program, includes 14 consultants and

4 trainers. The State provides consultation services to both the

private and public sectors. During the evaluation period, Nevada

[[Page 62143]]

conducted 1781 consultation visits, primarily in smaller high hazard

private sector establishments. From Fiscal Year 1996 through Fiscal

Year 1999, the State conducted 739 safety and health classes, reaching

a total of 6,737 employers and 8,551 employees. Training covered such

issues as developing safety and health programs, lockout/tagout, fall

protection, hazard communication and bloodborne pathogens. In addition,

the Safety Consultation and Training Section has carried out

substantial promotion and outreach efforts through a multi-media

campaign, including television and newspaper public service

announcements, funded by the State.

Effect of Section 18(e) Determination

If the Assistant Secretary, after review of the written comments

received and the results of any informal hearing if requested and held,

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 Nevada plan, as provided

by Section 18(e) of the Act and 29 CFR 1902.42(c). Nevada has excluded

private sector maritime employment and private employers on Indian land

from its plan. In addition, the plan does not have jurisdiction over

Federal agencies. Thus, Federal coverage of these areas would be

unaffected by an affirmative section 18(e) determination. Federal OSHA

will also retain authority for coverage of the United States Postal

Service (USPS), including USPS employees, contract employees, and

contractor-operated facilities engaged in USPS mail operations and all

Federal employers in Nevada.

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 standards and enforcement authority is withdrawn and

provide notice 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. The notice would 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 W of 29 CFR Part

1952, which codifies OSHA decisions regarding approval of the Nevada

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 Nevada 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-033, 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, 71

Stevenson Street, Suite 420, San Francisco, California 94105; and

Nevada Division of Industrial Relations, 400 West King Street, Carson

City, Nevada 89703. 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 (as amended through June

29, 1999), which includes a plan narrative, the State legislation,

regulations and procedures, and an organizational chart for State

staffing; the State's FY 1999 Federal grant; and the July 1, 1995

through March 31, 1999 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. As part of the Assistant Secretary's decision-making

process, consideration must be given to the application and

implementation by Nevada 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 Nevada's State plan, are available to

the Assistant Secretary during this administrative proceeding.

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

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

These comments must be received on or before December 16, 1999, and

submitted in duplicate to the Docket Officer, Docket No. T-033, U.S.

Department of Labor, Room N-2625, 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. Comments limited to 10 pages or fewer may also be transmitted by

FAX to: (202) 693-1648, provided that the original and one copy of the

comment are sent to the Docket Office immediately thereafter.

Electronic comments may be submitted on the Internet at: http://

www.osha-slc.gov/e-comments/e-comments-nevada.html. The State of Nevada

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 December 16, 1999, and

should be submitted in duplicate to the Docket Officer, Docket T-033,

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 Register. All

written and oral

[[Page 62144]]

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.

Federalism

Executive Order 13132, ``Federalism,'' emphasizes consultation

between Federal agencies and the States and establishes specific review

procedures the Federal government must follow as it carries out

policies which affect State or local governments. This Executive Order

does not take effect until November 2, 1999, but will be in effect when

OSHA renders its decision on final approval of the Nevada state plan.

OSHA has included in the Background section of today's request for

public comments a detailed explanation of the relationship between

Federal OSHA and the State plan States under the Occupational Safety

and Health Act. Although it appears that the specific consultation

procedures provided in section 6 of Ex.Ord. 13132 are not mandatory for

final approval decisions under the OSH Act, which neither impose a

burden upon the State nor involve preemption of any State law, OSHA has

nonetheless consulted extensively with Nevada throughout the period of

18(e) evaluation. OSHA has reviewed the Nevada final approval decision

proposed today, and believes it is consistent with the principles and

criteria set forth in the Executive Order.

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 Nevada 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.

(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 5th day of November, 1999.

Charles N. Jeffress,

Assistant Secretary of Labor.

[FR Doc. 99-29723 Filed 11-15-99; 8:45 am]

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