29 CFR Part 1952

[Docket No. T-025]

New Mexico State Plan: Proposed Revision to State Staffing Benchmarks; Request for Comments

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

ACTION: Proposed revision to State compliance staffing benchmarks; request for written comments.

SUMMARY: This document gives notice of the proposed revision of compliance staffing benchmarks applicable to the New Mexico State plan. New Mexico's benchmarks were originally established in April 1980 in response to the U.S. Court of Appeals decision in AFL-CIO v. Marshall, 570 F. 2d 1030 (D.C. Cir. 1978). The State of New Mexico has reconsidered the information utilized in the development of its 1980 benchmarks and determined that changes in local conditions and improved inspection data warrant revision of its benchmarks. OSHA is soliciting written public comments to afford interested persons an opportunity to present their views regarding whether or not the revised benchmarks for New Mexico should be approved.

DATES: Written comments must be received by May 3, 1994.

ADDRESSES: Written comments should be submitted, in quadruplicate, to the Docket Officer, Docket No. T-025, U.S. Department of Labor, room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210, (202) 219-7894.

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, DC 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. 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.

The New Mexico plan, which was granted initial State plan approval on December 10, 1975 (40 FR 57456), is administered by the Occupational Health and Safety Bureau of the New Mexico Environment Department. Concurrent Federal enforcement jurisdiction was suspended in New Mexico with the publication of an Operational Status Agreement on June 11, 1982 (47 FR 25326). The plan was certified has having satisfactorily completed all of its developmental commitments on December 17, 1984 (49 FR 48918).

Proposed Revision of Benchmarks

In May 1992, the New Mexico Environment 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. In accord with the formula and general principles established by the joint Federal/State task group for the revision of the 1980 benchmarks, New Mexico reassessed the staffing necessary for a "fully effective" occupationsl safety and health program in the State. This reassessment resulted in a proposal, contained in supporting documents, of revised staffing benchmarks of 7 safety and 3 health compliance officers.

The proposed revised safety benchmark contemplates biennial general schedule inspection of all private sector manufacturing establishments with greater than 10 employees (based upon a computerized summary utilizing the 1981 Unemployment Insurance Listing of Employers for New Mexico) in Standard Industrial Classifications whose Lost Workday Case Injury Rate is higher than the overall State private sector rate (as determined by the Bureau of Labor Statistics' (BLS) Annual Occupational Injury and Illness Survey). Data indicate that the State is spending an average of 12 hours on such inspections, and each State safety inspector is able to devote 1,656 hours annually to actual inspection activity based on State personnel practices. Establishments have been added to this initial general inspection universe based on the State's analysis of past injury and inspection experience to identify those employers or groups of employers most likely to have hazards that could be eliminated by inspection. In addition, inspection resources are allocated to coverage of mobile and public employee (State and local government) work sites, response to complaints and accidents, and follow-up inspections to ascertain compliance, based upon recent historical experience and an assessment of proper safety coverage in the State of New Mexico.

The proposed revised health benchmark contemplates general schedule inspection coverage once every three years of all private sector manufacturing establishments with greater than 10 employees (based upon a computerized summary utilizing the 1981 Unemployment Insurance Listing of Employers for New Mexico) in the 150 Standard Industrial Classifications (SICs) in the State having the highest likelihood of exposure to health hazards. These SICs are determined by a health ranking system utilizing data from the National Occupational Hazards Survey (NOHS), as published in 1977, which assesses the potency and toxicity of substances in use in the State. The State has historically spent an average 25 hours on such inspections, and each health compliance officer is able to devote 1,656 hours annually to actual inspection activity, based upon State personnel practices. Establishments have been added to this initial general schedule universe based on the State's knowledge gained from inspection experience and other data on the extent of employee exposure to and use of toxic substances and harmful physical agents by individual employers or groups of employers, and the extent to which hazardous exposures can be eliminated by inspection. In addition, inspection resources are allocated to coverage of mobile and public employee (State and local government) work sites, response to complaints and accidents, and follow-up inspections to ascertain compliance, based on recent historical experience and an assessment of proper health coverage in the State of New Mexico.

OSHA has reviewed the State's proposed revised benchmarks and supporting documentation, prepared a narrative describing the State's submission, and determined that the proposed compliance staffing levels appear to meet the requirements of the Court in AFL-CIO v. Marshall and provide staff sufficient to ensure a "fully effective enforcement program."

Effect of Benchmark Revision

Consistent with the 1978 Court Order in AFL-CIO v. Marshall and the procedures for implementation of benchmarks described by OSHA in the 1980 Report to the Court, if the proposed revised benchmarks are approved by OSHA, the State must allocate a sufficient number of safety and health enforcement staff to meet the revised benchmarks in order to be eligible for final approval under section 18(e) of the Act. Approval of the revised benchmarks would be accompanied by an amendment to 29 CFR part 1952, subpart DD, which generally describes the New Mexico plan and sets forth the State's revised safety and health benchmark levels.

Documents of Record

A comprehensive document containing the proposed revision to New Mexico's benchmarks, including a narrative of the State's submission and supporting statistical data has been made a part of the record in this proceeding and is available for public inspection and copying at the following locations:

Docket Office, Docket No. T-25, U.S. Department of Labor, room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210.

Regional Administrator - Region VI, U.S. Department of Labor - OSHA, room 602, 525 Griffin Street, Dallas, Texas 75202.

New Mexico Environment Department, Occupational Safety and Health Bureau, 1190 St. Francis Drive, Santa Fe, New Mexico 87502.

In addition, to facilitate informed public comment, an informational record has been established in a separate docket (No. T-018) containing background information relevant to the benchmark issue in general and the current benchmark revision process. This information docket includes, among other material, the 1978 Court of Appeals decision in AFL-CIO v. Marshall, the 1978 implementing Court Order, the 1980 Report to the Court, and a report describing the 1983-1984 benchmark revision process. It is also available for public inspection and copying at the following location:

Docket Office, Docket No. T-018, U.S. Department of Labor, room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210.

Public Participation

OSHA is soliciting public participation in its consideration of the approval of the revised New Mexico benchmarks to assure that all relevant information, views, data and arguments are available to the Assistant Secretary during this proceeding. Members of the public are invited to submit written comments in relation to whether the proposed revised benchmarks will provide for a fully effective enforcement program for New Mexico in accordance with the Court Order in AFL-CIO v. Marshall. Comments must be received on or before May 3, 1994, and be submitted in quadruplicate to the Docket Office, Docket No. T-025, U.S. Department of Labor, room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210. Written submissions must be directed to the specific benchmarks proposed for New Mexico and must clearly identify the issues which are addressed and the positions taken with respect to each issue.

All written 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 all material submitted in response to this notice, will be made available for public 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.

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 18th day of March 1994.

Joseph A. Dear,
Assistant Secretary of Labor.

[FR Doc. 94-7254 Filed 3-28-94; 8:45 am]