Code of Federal Regulations: Containing a Codification of Documents of ...

the Federal Voluntary Protection Program, with the exception of organizational and position titles.

(d) Temporary labor camps/field sanitation. Effective February 3, 1997, the Assistant Secretary approved Wyoming's plan amendment, dated July 19, 1996, relinquishing coverage for the issues of field sanitation (29 CFR 1928.110) and temporary labor camps (29 CFR 1910.142) in agriculture (except for agricultural temporary labor camps associated with egg, poultry or red meat production, or the post-harvest processing of agricultural or horticultural commodities.) The Employment Standards Administration, U.S. Department of Labor, has assumed responsibility for enforcement of these Federal OSHA standards in agriculture in Wyoming pursuant to Secretary of Labor's Order 5-96, dated December 27, 1996.

[54 FR 9045, Mar. 3, 1989, as amended at 59 FR 14556, Mar. 29, 1994; 61 FR 55099, Oct. 24, 1996; 62 FR 2565, Jan. 17, 1997]

Subpart CC-Arizona

§ 1952.350 Description of the plan as initially approved.

(a)(1) The plan identifies the Arizona Industrial Commission, Division of Occupational Safety and Health, as the State agency designated to administer the plan throughout the State. It adopts the definition of occupational safety and health issues expressed in §1902.2(c)(1) of this chapter. The State intends to adopt all Federal standards except those found in 29 CFR parts 1915, 1916, 1917 and 1918 (ship repairing, shipbuilding, shipbreaking, and longshoring) and those subparts of parts 1910 and 1926 pertaining to industries which are not applicable to Arizona. In addition, the State intends to enforce elevator (ANSI) and boiler pressure vessel (ASME) standards for which there are no Federal counterparts.

(2) The plan provides a description of personnel employed under a merit system; the coverage of employees of political subdivisions; procedures for the development and promulgation of standards, including standards for the protection of employees against new and unforeseen hazards; and procedures for the prompt restraint or elimination of imminent danger situations.

(b)(1) The plan includes legislation enacted by the Arizona Legislature during its 1974 legislative session amending title 23, article 10 of the Arizona Revised Statutes to bring them into conformity with the requirements of part 1902 of this chapter. Under the legislation the Industrial Commission will have full authority to enforce and administer laws respecting the safety and health of employees in all workplaces of the State.

(2) The legislation is intended, among other things, to assure inspections in response to employee complaints; give employer and employee representatives an opportunity to accompany inspectors in order to aid inspections; notification of employees or their representatives when no compliance action is taken as a result of alleged violations; notification of employees of their protections and obligations; protection of employees against discharge or discrimination in terms and conditions of employment; adequate safeguards to protect trade secrets; sanctions against employers for violations of standards and orders; employer right of review to an Occupational Safety and Health Review Board and then the courts, and employee participation in review proceedings. The plan also proposes a program of voluntary compliance by employers and employees, including a provision for on-site consultation. The State's consultation program should not detract from its enforcement program and the State has given assurances that it will meet the conditions set forth in the Washington Decision (38 FR 2421, January 26, 1973).

(1) The plan description documents, in two volumes.

(2) A copy of the enabling legislation as amended and enacted by the State Legislature in its 1974 Session.

(3) Letters from Donald G. Wiseman, Director of the Division of Occupational Safety and Health of the Arizona Industrial Commission to Barry J. White, Associate Assistant Secretary for Regional Programs on October 15, 18, and 24, 1974 submitting information, clarifications, and revisions on several issues raised during the review process,

including proposals to be submitted to the Arizona Legislature during its 1975 Session.

[39 FR 39038, Nov. 5, 1974, as amended at 50 FR 25571, June 20, 1985]

§ 1952.351 Developmental schedule.

The Arizona State plan is developmental. The following is the developmental schedule as provided by the plan:

(a) Development of a complete management information and control system by July 1, 1976.

(b) The formulation and approval of inter-agency agreements with the Arizona Atomic Energy Commission, the State Health Department and the Arizona Corporation Commission by March 1, 1975.

(d) The promulgation of recordkeeping regulations by March 1, 1975, but full implementation of these regulations will not be until July 1, 1976.

(e) The submission of legislative amendments to the Arizona Legislature during its 1977 Session.

[39 FR 39038, Nov. 5, 1974, as amended at 40 FR 11873, Mar. 14, 1975; 41 FR 56315, Dec. 28, 1976. Redesignated at 50 FR 25571, June 20, 1985]

§ 1952.352 Completion of developmental steps and certification.

(a) Implementation of the Arizona occupational safety and health program began on March 1, 1975.

(b) Inter-agency agreements between the Arizona Industrial Commission and the Arizona Department of Health Services were finalized on November 7, 1974, and March 20, 1975.

(c) Regulations concerning inspections, citations and proposed penalties and the Rules of Procedure for contests before the Governor's Review Board were promulgated on February 28, 1975.

(d) Recordkeeping and reporting regulations were promulgated on March 1, 1975; however, these regulations will not be applicable to public employers until January 1, 1977.

(e) The universe file system for the inspections scheduling system was completed and implemented on March 12, 1976.

(f) An interagency agreement was entered into between the Corporation Commission of Arizona and the Industrial Commission on May 7, 1976 and became effective May 10, 1076.

(g) In accordance with the requirements of §1952.10, the Arizona State poster was approved by the Assistant Secretary on July 22, 1976.

(h) Arizona occupational safety and health standards comparable to Federal standards in effect as of July 28, 1974, were promulgated on February 28, 1975, and were approved by the Regional Administrator effective August 6, 1976.

(i) In accordance with §1902.34 of this chapter, the Arizona occupational safety and health plan was certified, effective September 18, 1981 as having completed all developmental steps specified in the plan as approved on October 29, 1974, on or before November 1, 1977. This certification attests to structural completion, but does not render judgment on adequacy of performance.

(j) Regulations concerning discrimination complaints were promulgated on September 22, 1977, and were approved by the Assistant Secretary on November 13, 1980.

§ 1952.353 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 to be established for each State operating an approved State plan. In September 1984, Arizona in conjunction with OSHA, completed a reassessment of the levels initially established in 1980 and proposed revised compliance staffing benchmarks of 9 safety and 6 health compliance officers. After opportunity for public comment and service on the

AFL-CIO, the Assistant Secretary approved these revised staffing requirements on June 20, 1985.

[50 FR 25571, June 20, 1985]

§ 1952.354 Final approval determination.

(a) In accordance with section 18(e) of the Act and procedures in 29 CFR part 1902, and after a determination that the State met the "fully effective” compliance staffing benchmarks as revised in 1984 in response to a Court Order in AFL-CIO v. Marshall, (CA 74406), and was satisfactorily providing reports to OSHA through participation in the Federal-State Unified Management Information System, the Assistant Secretary evaluated actual operations under the State plan for a period of at least one year following certification of completion of developmental steps (46 FR 46320). Based on the 18(e) Evaluation Report (October 1982-March 1984) and after opportunity for public comment, the Assistant Secretary determined that, in operation, the State of Arizona's occupational safety and health program is at least as effective as the Federal program in providing safe and healthful employment and places of employment and meets the criteria for final State plan approval in section 18(e) of the Act and implementing regulations at 29 CFR part 1902. Accordingly, the Arizona plan was granted final approval and concurrent Federal enforcement authority was relinquished under section 18(e) of the Act effective June 20, 1985.

(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, copper smelters, and Indian reservations.

(c) Arizona is required to maintain a State program which is at least as effective as operations under the Federal program; to submit plan supplements in accordance with 29 CFR part 1953; to allocate sufficient safety and health enforcement staff to meet the benchmarks for State staffing established by the U.S. Department of Labor, or any revision to those benchmarks; and, to furnish such reports in such form as

the Assistant Secretary may from time to time require.

[50 FR 25571, June 20, 1985]

§ 1952.355 Level of Federal enforcement.

(a) As a result of the Assistant Secretary's determination granting final approval of the Arizona plan under section 18(e) of the Act, effective June 20, 1985, occupational safety and health standards which have been promulgated under section 6 of the Act do not apply with respect to issues covered under the Arizona plan. This determination also relinquishes concurrent Federal OSHA authority to issue citations for violation of such standards under sections 5(a)(2) and 9 of the Act; to conduct inspections and investigations under section 8 (except those necessary to conduct evaluation of the plan under section 18(f) and other inspections, investigations, or proceedings necessary to carry out Federal responsibilities not specifically preempted by section 18(e)); to conduct enforcement proceedings in contested cases under section 10; to institute proceedings to correct imminent dangers under section 13; and to propose civil penalties or initiate criminal proceedings for violations of the Federal Act under section 17. The Assistant Secretary retains jurisdiction under the above provisions in any proceeding commenced under section 9 or 10 before the effective date of the 18(e) determination.

(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 private sector 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, in copper smelters, and within Indian reservations. Federal jurisdiction is also retained with respect to Federal government employers and employees. In addition, 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 finally approved plan, and shall be subject to Federal enforcement. Where enforcement jurisdiction is shared between Federal and State authorities for a particular area, project, or facility, in the interest of administrative practicability, Federal jurisdiction may be assumed over the entire project or facility. In either of the two aforementioned circumstances, Federal enforcement may be exercised immediately upon agreement between Federal and State OSHA.

(c) Federal authority under provisions of the Act not listed in section 18(e) is unaffected by final approval of the plan. Thus, for example, the Assistant Secretary retains his authority under section 11(c) of the Act with regard to complaints alleging discrimination against employees because of the exercise of any right afforded to the employee by the Act, although such complaints may be referred to the State for investigation. The Assistant Secretary also retains his authority under section 6 of the Act to promulgate, modify or revoke occupational safety and health standards which address the working conditions of all employees, including those in States which have received an affirmative 18(e) determination, although such standards may not be Federally applied. In the event that the State's 18(e) status is subsequently withdrawn and Federal authority reinstated, all Federal standards, including standards promulgated or modified during the 18(e) period, would be federally enforceable in that State.

any

(d) As required by section 18(f) of the Act, OSHA will continue to monitor the operations of the Arizona State program to assure that the provisions of the State plan are substantially complied with and that the program re

mains at least as effective as the Federal program. Failure by the State to comply with its obligations may result in the revocation of the Final determination under section 18(e), resumption of Federal enforcement, and/or proceedings for withdrawal of plan approval.

[50 FR 25571, June 20, 1985]

§ 1952.356 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, NW., Room N3476, Washington, DC 20210;

Office of the Regional Administrator, Occupational Safety and Health Administration, U.S. Department of Labor, 11349 Federal Building, 450 Golden Gate Avenue, San Francisco, California 94102; and,

Office of the Arizona Division of Occupational Safety and Health, Industrial Commission of Arizona, 1624 West Adams, Phoenix, Arizona. 85005.

[50 FR 25572, June 20, 1985]

§ 1952.357 Changes to approved plans.

(a) The Voluntary Protection Program. On December 30, 1993, the Assistant Secretary approved Arizona's plan supplement, which is generally identical to the Federal Voluntary Protection Programs with the exception that the State's VPP is limited to the Star Program in general industry, excludes the Merit and Demonstration Programs and excludes the construction industry.

(b) Legislation. (1) On March 29, 1994, the Assistant Secretary approved Arizona's revised statutory penalty levels which are the same as the revised Federal penalty levels contained in section 17 of the Act as amended on November 5, 1990.

(2) [Reserved]

[59 FR 2295, Jan. 14, 1994, as amended at 59 FR 14556, Mar. 29, 1994]

Subpart DD-New Mexico

§ 1952.360 Description of the plan as initially approved.

(a)(1) The plan identifies the New Mexico Environmental Improvement Agency, with its subordinate organization, the Occupational and Radiation Protection Division, as the State agency designated to administer the plan throughout the State. It adopts the definition of occupational safety and health issues expressed in §1909.2(c)(1) of this chapter. The State has adopted the Federal Field Operations Manual and all the Federal standards except those found in 29 CFR parts 1915, 1916, 1917, and 1918 (ship repairing, shipbuilding, shipbreaking, and longshoring). In addition, the Occupational and Radiation Protection Division will be enforcing State standards under the Radiation Protection Act (chapter 284, Laws of 1971, 12-9-1 through 12-9-11, New Mexico Statutes Annotated). However, since this Act provides protection to the general public, in the event of conflict between Radiation Protection Act standards and occupational safety and health standards, employees will receive the protection provided under the more stringent regulation.

(b)(1) The plan includes legislation enacted by the New Mexico Legislature during its 1975 legislative session amending chapter 63, Laws of 1972, 5914-1 through 59-14-23 of the New Mexico Statutes Annotated to bring them into conformity with the requirements of part 1902 of this chapter. Under the legislation, the Environmental Improvement Agency will have full authority to enforce and administer laws respecting the safety and health of employees in all workplaces of the State.

(2) The legislation is intended, among other things, to assure inspections in response to employee complaints; give employer and employee representatives

an opportunity to accompany inspectors in order to aid inspections; notify employees of their protections and obligations; protect employees against discharge or discrimination in terms and conditions of employment; provide adequate safeguards to protect trade secrets; impose sanctions against employers for violations of standards and orders; insure employer right of review to an Occupational Health and Safety Review Commission and then then the courts, and employee participation in the review proceedings. The plan also proposes a program of voluntary compliance by employers and employees, including a provision for on-site consultation. The State's consultation program will not detract from its enforcement program and the State's consultation program will meet the conditions set forth in the Washington Decision (38 FR 2421, January 26, 1973). (c) The New Mexico Plan includes the following documents as of the date of approval:

(1) The plan description documents, in one volume.

(2) A copy of the enabling legislation as amended by the State legislature in its 1975 session.

(3) A letter from Aaron Bond, Director of the New Mexico Environmental Improvement Agency, to Barry J. White, Associate Assistant Secretary for Regional Programs, dated November 4, 1975, submitting information, clarification, and revisions on several issues raised during the review process, including proposals to be submitted to the New Mexico Legislature prior to the close of its 1977 legislative session. [40 FR 57456, Dec. 10, 1975, as amended at 59 FR 42496, Aug. 18, 1994]

§ 1952.361 Developmental schedule.

The New Mexico State Plan is developmental. The following is the developmental schedule as provided by the plan:

(a) Development of a complete and operating management information and control system by January 1, 1976. (b) Submission of the State's occupational safety and health poster for approval by January 31, 1976.

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