DEPARTMENT OF LABOR

29 CFR Part 1952

[Docket No. T-025]

New Mexico State Plan: Approval of Revised Compliance Staffing Benchmarks

AGENCY: Department of Labor, Occupational Safety and Health Administration (OSHA).

ACTION: Final rule; approval of revised State compliance staffing benchmarks.

SUMMARY: This document amends agency regulations to reflect the Assistant Secretary's decision to approve revised compliance staffing benchmarks for the New Mexico State plan.

EFFECTIVE DATE: August 18, 1994.

FOR FURTHER INFORMATION CONTACT: James Foster, Director, Office of Information and Consumer Affairs, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-3637, 200 Constitution Avenue NW., Washington, D.C. 20210, (202) 219-8148.

SUPPLEMENTARY INFORMATION:

Background

Section 18 of the Occupational Safety and Health Act of 1970 ("the Act," 29 U.S.C. 651 et seq.) provides that States which desire to assume responsibility for developing and enforcing occupational safety and health standards may do so by submitting, and obtaining Federal approval of, a State plan. Section 18(c) of the Act sets forth the statutory criteria for plan approval, and among these criteria is the requirement that the State's plan provide satisfactory assurances that the state agency or agencies responsible for implementing the plan have " * * * the qualified personnel necessary for the enforcement of * * * standards," 29 U.S.C. 667(c)(4).

A 1978 decision of the U.S. Court of Appeals and the resultant implementing order issued by the U.S. District Court for the District of Columbia (AFL-CIO v. Marshall, C.A. No. 74-406) interpreted this provision of the Act to require States operating approved State plans to have sufficient compliance personnel necessary to assure a "fully effective" enforcement effort. The Assistant Secretary of Labor for Occupational Safety and Health (the Assistant Secretary) was directed to establish "fully effective" compliance staffing levels, or benchmarks, for each State plan.

In 1980 OSHA submitted a Report to the Court containing these benchmarks and requiring New Mexico to allocate 11 safety and 17 health compliance personnel to conduct inspections under the plan. Attainment of the 1980 benchmark levels or subsequent revision thereto is a prerequisite for State plan final approval consideration under section 18(e) of the Act.

Both the 1978 Court Order and the 1980 Report to the Court explicitly contemplate subsequent revisions to the benchmarks in light of more current data, including State-specific information, and other relevant considerations. In August 1983 OSHA, together with State plan representatives, initiated a comprehensive review and revision of the 1980 benchmarks. The State of New Mexico participated in this benchmark revision process, which resulted in a methodology whereby a State could submit data that would justify revision of its 1980 benchmarks. In May 1992, New Mexico proposed to the Assistant Secretary revised compliance staffing levels for a "fully effective" program responsive to the occupational safety and health needs of the State. (A complete discussion of both the 1980 benchmarks and the present revision system process is set forth in the January 16, 1985 Federal Register (50 FR 2491) regarding the Wyoming occupational safety and health plan.)

Proposed Revision of Benchmarks

In 1980, OSHA submitted a report to the Court containing the benchmarks and requiring New Mexico to allocate 11 safety compliance officers and 17 industrial hygienists. Pursuant to the initiative begun in August 1983 by the State plan designees as a group, and in accord with the formula and general principles established by that group for individual State revision of benchmarks, New Mexico reassessed the compliance staffing necessary for a "fully effective" occupational safety and health program in the State.

In May 1992, the New Mexico Environmental Department (the designated agency or "designee" in the State) completed, in conjunction with OSHA, a review of the compliance staffing benchmarks approved for New Mexico in 1980. This reassessment resulted in a proposal to OSHA of revised compliance staffing benchmarks of 7 safety and 3 health compliance officers for the State of New Mexico.

History of the Present Proceedings

On March 29, 1994, the Occupational Safety and Health Administration published notice in the Federal Register of its proposal to approve revised compliance staffing benchmarks for New Mexico (59 FR 14587). A detailed description of the methodology and State-specific information used to develop the revised compliance staffing levels for New Mexico was included in the notice. In addition, OSHA submitted, as a part of the record, detailed submissions containing both narrative explanation and supporting data for New Mexico's proposed revised benchmarks (Docket No. T-025). A summary of the benchmark revision process is set forth in the January 16, 1985 Federal Register notice concerning the Wyoming State plan (50 FR 2491). An informational record was established in a separate docket (Docket No. T-018) and contained background information relevant to the benchmark issue and the current benchmark revision process.

To assistant and encourage public participation in the benchmark revision process, a copy of New Mexico's complete record was maintained in the OSHA Docket Office in Washington, D.C. Copies of New Mexico's record were also maintained in the OSHA Region VI Office in Dallas, Texas, and in the Office of the New Mexico Environment Department, Occupational Safety and Health Bureau, in Santa Fe, New Mexico.

The March 29 proposal invited interested parties to submit, by May 3, 1994, written comments and views regarding whether New Mexico's proposed revised compliance staffing benchmark levels should be approved. No comments were received regarding New Mexico's proposed benchmarks.

Decision

OSHA has carefully reviewed the record developed during the above described proceedings. In light of all the facts presented on the record, including the absence of any objections from interested parties, the Assistant Secretary has determined that the revised compliance staffing levels proposed for New Mexico meet the requirements of the 1978 Court Order in AFL-CIO v. Marshall in providing the number of safety and health compliance officers for a "fully effective" enforcement program. Therefore, the revised compliance staffing levels of 7 safety and 3 health for New Mexico are approved.

Effect of Decision

The approval of the revised staffing levels for New Mexico, set forth elsewhere in this notice, establishes the requirement for a sufficient number of adequately trained and qualified compliance personnel as set forth in Section 18(c) of the Act and 29 CFR 1902.37(b)(1). These benchmarks are established pursuant to the 1978 Court Order in AFL-CIO v. Marshall and define the compliance staffing levels necessary for a "fully effective'' program in New Mexico. The allocation of sufficient staffing to meet the benchmarks is one of the conditions necessary for States to receive an 18(e) determination (final State plan approval) with its resultant relinquishment of concurrent Federal enforcement jurisdiction.

Explanation of Changes to 29 CFR Part 1952

29 CFR 1952 contains, for each State having an approved safety and health plan, a subpart generally describing the and setting forth the Federal approval status of the plan. This notice makes several changes to Subpart DD to reflect the approval of New Mexico's revised compliance staffing benchmarks, as well as to reflect minor editorial modifications to the structure of the Subpart.

A new 1952.393, Compliance staffing benchmarks, has been added to Subpart DD to reflect the approval of the revised benchmarks for New Mexico.

While most of the existing subparts have been retained, paragraphs within the subpart have been rearranged and renumbered so that the major steps in the development of the plan (initial approval, developmental steps and certification of completion of developmental steps) are set forth in chronological order.

Related editorial changes to the subparts include modification of the heading of Sec. 1952.360 to clearly identify the initial plan approval of New Mexico. The addresses of locations where the New Mexico plan may be inspected have been updated and are found at Sec. 1952.366.

Regulatory Flexibility Act

OSHA certifies, pursuant to the Regulatory Act of 1980 (5 U.S.C. 601, et seq.), that this rulemaking will not have significant economic impact on a substantial number of small entities. Approval of the revised compliance staffing benchmarks for New Mexico will not place small employers in the State 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 11th day of August 1994.

Joseph A. Dear
Assistant Secretary of Labor.

PART 1952 -- [AMENDED]

Accordingly, Subpart DD of 29 CFR Part 1952 is amended as follows:

Subpart DD -- New Mexico

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

Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR Part 1902, Secretary of Labor's Order No. 1-90 (55 FR 9033).

2. Section 1952.360 is amended by revising the heading to read:

1952.360 Description of the plan as initially approved.

1952.365 [Redesignated as Sec. 1952.367]

1952.362 [Redesignated as Sec. 1952.365]

3. Section 1952.365 is redesignated as Sec. 1952.367 and Sec. 1952.362 is redesignated as Sec. 1952.365.

1952.362 [Redesignated from Sec. 1952.364]

1952.364 [Reserved]

4. Section 1952.364 ("Completion of developmental steps and certification") is redesignated as Sec. 1952.362, and a new Sec. 1952.364 is added and reserved.

1952.361 [Redesignated as Sec. 1952.366]

5. Section 1952.361 is redesignated as Sec. 1952.366 and revised to read as follows:

1952.366 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, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, N.W., Room N3700, Washington, D.C. 20210; Office of the Regional Administrator, Occupational Safety and Health Administration, U.S. Department of Labor, Room 602, 525 Griffin Street, Dallas, Texas 75202; and New Mexico Environment Department, Occupational Safety and Health Bureau, 1190 St. Francis Drive, Santa Fe, New Mexico 87502.

1952.361 [Redesignated from Sec. 1952.363]

6. Section 1952.363 is redesignated as Sec. 1952.361 and a new Sec. 1952.363 is added to read as follows:

1952.363 Compliance staffing benchmarks.

Under the terms of the 1978 Court Order in AFL-CIO v. Marshall, compliance staffing levels ("benchmarks'') necessary for a "fully effective'' enforcement program were required for each State operating an approved State plan. In May 1992, New Mexico completed, in conjunction with OSHA, a reassessment of the staffing levels initially established in 1980 and proposed revised benchmarks of 7 safety and 3 health compliance officers. After opportunity for public comment and service on the AFL-CIO, the Assistant Secretary approved these revised staffing requirements on August 11, 1994.

[FR Doc. 94-20143 Filed 8-17-94; 8:45 am]