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.

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.

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: § 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:

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:

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 § 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 Assistant Secretary on September 24, 1997.

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