DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

Approved State Plans for Enforcement of State Standards; Approval of Supplements to the Nevada State Plan

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Approval of supplements to the Nevada State Plan.

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SUMMARY: This document gives notice of Federal approval of supplements to the Nevada State occupational safety and health plan. These supplements are: Nevada's procedure for issuance of notices of violation in lieu of citations in certain situations; amendments to the Nevada Occupational Safety and Health Act enacted in 1981, 1989 and 1993; the Nevada Field Operations Manual; the Nevada Training and Consultation Section Policies and Procedures Manual; the Nevada Occupational Safety and Health Administration Technical Manual; and a regulation concerning pre-construction conferences.

EFFECTIVE DATE: August 24, 1995.

FOR FURTHER INFORMATION CONTACT: Director, Office of Information and Consumer Affairs, Occupational Safety and Health Administration, Room N3647, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Telephone: (202) 523-8148.

SUPPLEMENTARY INFORMATION:

Background

The Nevada Occupational Safety and Health Plan was approved under section 18(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 667(c)) (hereinafter referred to as the Act) and Part 1902 of this chapter on January 4, 1974 (39 FR 1008). Part 1953 of this chapter provides procedures for the review and approval of State change supplements by the Assistant Secretary of Labor for Occupational Safety and Health (hereinafter referred to as the Assistant Secretary).

Description of Supplements

A. Notices of Violation

On October 29, 1980, the State submitted a procedure for issuing notices of violation in lieu of citations for certain other than serious violations. In order to expedite inspections and concentrate resources on serious violations, compliance officers may issue notices of violation for other than serious violations for which monetary penalties would not be proposed. If the employer agrees to abate the violation and not to file a contest, the compliance officer will issue the notice on-site. For serious, willful, repeat and/or failure to abate violations, citations continue to be issued in accordance with established procedures.

Review of the supplement raised several issues which needed to be resolved before approval of the notice of violation procedure. Because the Nevada Occupational Safety and Health Act required that citations be issued where violations were identified, statutory authority for issuance of notices was necessary. In 1981, § 618.465(1)(b) was added to the State's law, allowing for a notice in lieu of a citation for violations which are not serious and which the employer agrees to correct within a reasonable time.

There was also concern that a notice be able to serve as the basis for a future willful, repeat, or failure to abate citation, and that documentation of the violations for which the notice was issued be adequate to serve as the basis for such a citation. The State amended its enforcement regulations to provide that for future proceedings involving a repeat, willful, or failure to abate violation, the notice of violation shall have the same effect as if a citation has originally been issued and become a final order (section 618.6458(9)) and that notices of violations contain all the provisions required for citations (section 618.6458(6)). In addition, the State was asked to ensure that if it is learned following the inspection that a violation for which a notice of violation has been issued is actually a repeat violation, a citation for a repeat violation would be issued. Section 618.6458 of the State's enforcement regulations now provides that a citation may be issued even if a notice has already been issued, and the State's Field Operations Manual directs the compliance officer to check for previous violations upon returning to the office. Finally, the right of employees to contest the reasonableness of the abatement period needed to be established. The State's enforcement regulations (§ 618.6458(6)) now provide that the notice shall inform employees of their right to contest the abatement period. Based on these changes made by the State, the notice of violation procedure is now deemed approvable.

B. Amendments to Nevada Occupational Safety and Health Act

In 1981, 1989 and 1993, the State enacted amendments to its Occupational Safety and Health Act. The 1981 amendments, submitted as a plan supplement on July 10, 1981, made the following changes:

(1) As discussed above, § 618.465(1)(b) was added to allow the State to issue a notice in lieu of a citation for violations which are not serious and which the employer agrees to correct within a reasonable time.

(2) Section 618.415 was revised to delete the legislative authority for temporary variances for other than new standards. As in the Federal program, temporary variances may now only be granted from new standards.

(3) Section 618.585(2) was added to allow the Nevada Occupational Safety and Health Appeals Board to employ legal counsel.

(4) Section 618.625(3) was amended to streamline penalty collection procedures by allowing collection actions to be brought in any court of competent jurisdiction, rather than only the district court.

(5) Section 618.367 was amended to ensure confidentiality to employees making statements to the Division of Occupational Safety and Health, as well as those filing complaints. This section was extensively revised in 1989, as discussed below.

The 1989 amendments, submitted as a plan supplement on October 17, 1989, made the following changes:

(1) Section 618.336 requires the maintenance of specific logs relating to complaints received concerning occupational safety and health violations and their outcomes.

(2) Section 618.341 provides public access to records on complaints, except for confidential information.

(3) Section 618.341(3) provides confidentiality for those employees who file complaints or make statements, even when confidentiality is not specifically requested, as well as for files relating to open cases.

(4) Section 618.370 was amended to clarify that representatives of employees and former employees are entitled to access to any records in the possession of their employers or former employers which indicate their exposure to toxic materials or harmful physical agents. "Representative of an employee or former employee" is defined as an authorized representative of the employee bargaining unit, an attorney, a spouse, parent or child, or a person designated by a court.

(5) Section 618.425 was amended to add health care providers, and government employees whose primary duty is to ensure public safety, such as building inspectors, to those who may file complaints of hazardous working conditions.

(6) Section 618.425 was also amended to allow for oral as well as written complaints, and to require the division to respond to valid complaints of serious violations immediately and of other violations within 14 days.

(7) Section 618.435 provides that an employee who accompanies a compliance officer on the inspection is entitled to be paid for the time spent, but that only one employee may accompany the compliance officer during the inspection.

(8) Section 618.545 was amended to allow the Administrator of the Nevada Division of Occupational Safety and Health to issue an emergency order to restrain an imminent danger situation.

(9) All maximum monetary penalties in sections 618.645 through 618.705 were doubled. At the time of their enactment, these statutory penalty levels were higher than those contained in the Federal Act. (In 1991, statutory maximum penalties for violations of the State Act were raised again. That increase was approved by OSHA on March 15, 1994 (59 FR 14556).) The 1993 amendments, submitted on October 27, 1993, reflect a reorganization of the Nevada State government. The previous Division of Enforcement for Industrial Safety and Health and Division of Preventive Safety are now sections in the Division of Industrial Relations of the Department of Business and Industry.

C. Field Operations Manual

On December 14, 1989, Nevada submitted its Field Operations Manual in response to a revised Federal Field Operations Manual (CPL 2.45B). The State has submitted revisions to this manual on May 31, 1991, July 5, 1991, December 15, 1992 and June 13, 1994, in response to Changes 1 through 4 of the Federal manual. The Nevada Field Operations Manual is comparable to the Federal manual and has been found to be at least as effective as the Federal manual.

D. Consultation Manual

On August 12, 1987, the State submitted its Training and Consultation Section Policies and Procedures Manual. This manual includes previously approved sections of the State's Field Operations Manual on the conduct of consultation visits to employers. In addition, it incorporates chapters on safety and health program assistance and training by consultants which are nearly identical (with organization changes and adapted to the State's program structure) to Part I of the Federal Consultation Policies and Procedures Manual.

E. Industrial Hygiene Technical Manual

On March 30, 1990, the State submitted notice of its adoption of the Federal OSHA Technical Manual. The State has incorporated a cover sheet indicating that the Federal manual has been adopted for State use, how references to the Federal program in the Federal manual correspond to the State administrative structure, and how it will be applied. In addition, on March 6, 1991, June 22, 1993 and December 16, 1994, the State submitted notice of its adoption of Changes 1, 2 and 3 to the Technical Manual. These changes also incorporate updates to the Federal manual, with appropriate changes to apply to the State's organizational structure.

F. Pre-construction Conferences

On August 20, 1993, Nevada submitted a temporary regulation requiring pre-construction conferences with the Division of Industrial Relations for certain types of construction projects including high rise, structural steel erection, precast concrete erections, cast in place structures above ground level, and tilt-up wall construction. At the conference, the contractor will identify those safety measures which will be utilized to protect employees working on the project. On September 8, 1994, Nevada submitted permanent regulations covering pre- construction conferences.

G. Revised Plan

On October 2, 1992, Nevada submitted a reorganized State plan, incorporating the plan supplements approved herein as well as previously approved plan changes and other supplements still under review.

H. Other Submissions

In addition, on October 17, 1989, the State submitted legislation enacted in 1989 and implementing regulations concerning the licensing and registration of asbestos removal projects. The new procedures require any contractor engaging in asbestos removal work to be licensed by the Division of Occupational Safety and Health and to meet certain training and work practice requirements. The licensing program is administered separately from the Division's occupational safety and health enforcement program. While these provisions are not part of the State plan, and thus activities pursuant to them are not eligible for funding under section 23(g) of the Act, OSHA will monitor these activities to ensure that they do not detract from the State's ability to meet its commitments under the plan.

Location of Supplements for Inspection and Copying

A copy of the plan and the supplements may be inspected and copied during normal business hours at the following locations: Office of the Regional Administrator, Occupational Safety and Health Administration, Room 415, 71 Stevenson Street, San Francisco, California 94105; Director, Division of Occupational Safety and Health, Nevada Division of Industrial Relations, 1370 South Curry Street, Carson City, Nevada 89710; and the Office of the Director of Federal-State Operations, Room N3700, 200 Constitution Avenue, N.W., Washington, D.C. 20210.

Public Participation

A notice was published on April 3, 1981 (46 FR 20229), announcing the submission of the Nevada program for issuance of notices of violation. Interested persons were afforded 30 days to submit written comments or request a hearing concerning the supplement. One comment favoring the program was received.

With regard to the other supplements, under § 1953.2(c) of this chapter, the Assistant Secretary may prescribe alternative procedures to expedite the review process or for any other good cause which may be consistent with applicable law. The Assistant Secretary finds that the legislative amendments, Field Operations Manual, Consultation Manual, Industrial Hygiene Technical Manual and regulations concerning pre- construction conferences are 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 these supplements, and further public participation would be unnecessary.

Decision

After careful consideration and extensive review by the Regional and National Offices, the Nevada plan supplements described above are found to be in substantial conformance with comparable Federal provisions and are hereby approved under Part 1953 of this chapter. The decision incorporates the requirements and implementing regulations applicable to State plans generally.

List of Subjects in 29 CFR Part 1952

Intergovernmental relations, Law enforcement, Occupational safety and health

Signed at Washington, D.C., this 11th day of August, 1995.

Joseph A. Dear,
Assistant Secretary

Accordingly, 29 CFR Part 1952 is hereby amended as follows:

PART 1952 -- [AMENDED]

The authority citation for Part 1952 continues to read:

Authority: Secs. 8, 18 Pub. L. 91-596, 84 Stat. 1608 Occupational Safety and Health Act of 1970 (29 U.S.C. 657, 667); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), or 9-83 (48 FR 35736), as applicable.

2. Paragraphs (b) through (h) are added to § 1952.297 of Subpart W to read as follows:

1952.297 Changes to approved plans.

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(b) Notices of violation. The State submitted a procedure for issuing notices of violation in lieu of citations for certain other than serious violations which the employer agrees to abate. The procedure as modified was approved by the Assistant Secretary on August 24, 1995.

(c) Legislation. The State submitted amendments to its Occupational Safety and Health Act, enacted in 1981, which: provide for notices of violation in lieu of citations for certain other than serious violations; delete the authority for temporary variances for other than new standards; allow the Nevada Occupational Safety and Health Appeals Board to employ legal counsel; allow penalty collection actions to be brought in any court of competent jurisdiction; and ensure confidentiality to employees making statements to the Division of Occupational Safety and Health. Further amendments, enacted in 1989: require the maintenance of specific logs relating to complaints; provide public access to records on complaints, except for confidential information; provide confidentiality for those employees who file complaints or make statements, as well as for files relating to open cases; allow representatives of employees and former employees access to any records which indicate their exposure to toxic materials or harmful physical agents; define representative of employees or former employees; allow health care providers and government employees in the field of public safety, to file complaints; allow for oral complaints; require the division to respond to valid complaints of serious violations immediately and of other violations within 14 days; provide that an employee who accompanies a compliance officer on the inspection is entitled to be paid for the time spent, but that only one employee may accompany the compliance officer during the inspection; allow the Administrator of the Division of Occupational Safety and Health to issue an emergency order to restrain an imminent danger situation; and, double maximum authorized penalty levels. Amendments enacted in 1993 reflect the new State organizational structural by designating the previous Divisions as sections in the Division of Industrial Relations of the Department of Business and Industry. The Assistant Secretary approved these amendments on August 24, 1995.

(d) Field Operations Manual. The State's Field Operations Manual, comparable to the Federal Field Operations Manual, through Change 4, was approved by the Assistant Secretary on August 24, 1995.

(e) Consultation Manual. The State's Training and Consultation Section Policies and Procedures Manual was approved by the Assistant Secretary on August 24, 1995.

(f) Occupational Safety and Health Administration Technical Manual. The State's adoption of the Federal OSHA Technical Manual, through Change 3, with a cover sheet adapting Federal references to the State's administrative structure, was approved by the Assistant Secretary on August 24, 1995.

(g) Pre-construction conferences. A State regulations requiring pre-construction conferences with the Division of Industrial Relations for certain types of construction projects was approved by the Assistant Secretary on August 24, 1995.

(h) Reorganized Plan. The reorganization of the Nevada plan was approved by the Assistant Secretary on August 24, 1995.

[FR Doc. 95-20863 Filed 8-23-95; 8:45 am]

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