DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

Arizona State Plan; Change in Level of Federal Enforcement: Concrete and Asphalt Batch Plants Connected to Mines

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Final rule.

SUMMARY: This document gives notice of the resumption of Federal enforcement responsibility in the State of Arizona over private sector employment at concrete and asphalt batch plants which are physically connected to a mine or so interdependent with the mine as to form one integral enterprise.

OSHA is hereby amending its regulations on approved plans to reflect this change to the level of Federal enforcement authority in Arizona.

EFFECTIVE DATE: October 5, 1998.

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).

The Arizona State plan was initially approved on October 29, 1974 (39 FR 39037). On June 20, 1985, OSHA announced the final approval of the Arizona State plan pursuant to section 18(e) and amended Subpart CC of 29 CFR Part 1952 to reflect the Assistant Secretary's decision (50 FR 25571). As a result, Federal OSHA relinquished its authority with regard to occupational safety and health issues covered by the Arizona plan. Federal OSHA retained its authority over safety and health in private sector maritime employment, in copper smelters, within Indian reservations and with regard to Federal government employers and employees.

29 CFR 1952.355, which codifies OSHA's final approval decision, provides that any hazard, industry, geographical area, operation or facility over which the State is unable to effectively exercise jurisdiction for reasons not related to the required performance or structure of the plan shall be deemed to be an issue not covered by the plan and shall be subject to Federal enforcement.

The Industrial Commission of Arizona, the State plan agency responsible for occupational safety and health enforcement, is precluded by law from covering working conditions with respect to which any State agency acting under Title 27, Chapter 3, of Arizona Revised Statutes, exercises statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health (Arizona Revised Statutes, section 23-402). Under Arizona Revised Statutes section 27-301(8), the State Mine Inspector has jurisdiction over concrete and asphalt plants that are "physically connected to the mine or so interdependent with the mine as to form one integral enterprise." Therefore, such facilities are excluded from coverage under the State plan.

Section 4(b)(1) of the Federal Act provides that "nothing in this Act shall apply to working conditions with respect to which other Federal agencies * * * exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health" but does not include language precluding coverage of concrete or asphalt plants comparable to that in the Arizona statute. OSHA coverage of such facilities is specifically provided by a Memorandum of Understanding Between OSHA and the Mine Safety and Health Administration, which was signed on March 29, 1979 (see 44 FR 22,827).

B. Location of Supplement for Inspection and Copying

A copy of the legislation referenced in this notice as well as information on the Arizona plan is available during normal business hours at the following locations: Office of the Regional Administrator, U.S. DEPARTMENT OF LABOR--OSHA, 71 Stevenson Street, Suite 415, San Francisco, CA 94105; Industrial Commission of Arizona, 800 W. Washington, Phoenix, AZ 85007; 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 Web Page 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. Arizona's Final Approval determination issued after an opportunity for public comment in 1985, specifically provides that Federal standards and enforcement will apply to safety or health issues the State is unable to cover under its State plan, and this notice implements that provision. State and Federal OSHA requirements applicable to employment in concrete and asphalt batch plants are identical. Accordingly, OSHA finds that further public participation is not necessary.

D. Decision

To assure worker protection under the OSH Act, Federal OSHA will assume coverage over concrete and asphalt batch plants that are physically connected to or interdependent with mines in Arizona. OSHA is hereby amending 29 CFR part 1952, Subpart CC, to reflect this change in the level of Federal enforcement.

List of Subjects in 29 CFR Part 1952

Intergovernmental relations, Law enforcement, Occupational safety and health.

This document was prepared under the direction of Charles Jeffress, 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. 6-96 (62 FR 111).

Signed at Washington, D.C. this 21 day of August 1998.

Charles N. Jeffress,
Assistant Secretary of Labor.

For the reasons set out in the preamble 29 CFR part 1952, Subpart CC (Arizona) 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: Sec. 18 Stat. 1608 (29 U.S.C. 667); 29 CFR part 1902, Secretary of Labor's Order No. 6-96 (62 FR 111).

Subpart CC--Arizona

2. Section 1952.354 is amended by revising paragraph (b) to read as follows:

Sec. 1952.354 Final approval determination.

* * * * *

(b) The plan which has received final approval covers all activities of employers and all places of employment in Arizona except for private sector maritime employment, copper smelters, concrete and asphalt batch plants that are physically connected to a mine or so interdependent with a mine as to form one integral enterprise, and Indian reservations.

* * * * *

3. Section 1952.355 is amended by revising the first four sentences of paragraph (b) to read as follows:

Sec. 1952.355 Level of Federal enforcement.

* * * * *

(b) In accordance with section 18(e), final approval relinquishes Federal OSHA authority only with regard to occupational safety and health issues covered by the Arizona plan. OSHA retains full authority over issues which are not subject to State enforcement under the plan. Thus, Federal OSHA retains its authority relative to safety and health in private sector maritime activities and will continue to enforce all provisions of the Act, rules or orders, and all Federal standards, current or future, specifically directed to maritime employment (29 CFR part 1915, shipyard employment; part 1917, marine terminals; part 1918, longshoring; part 1919, gear certification) as well as provisions of general industry standards (29 CFR part 1910) appropriate to hazards found in these employments. Federal jurisdiction is also retained with respect to Federal government employers and employees, in copper smelters, in concrete and asphalt batch plants which are physically connected to a mine or so interdependent with the mine as to form one integral enterprise, and within Indian reservations. * * *

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[FR Doc. 98-26525 Filed 10-2-98; 8:45 am]

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