[Federal Register Volume 65, Number 219 (Monday, November 13, 2000)]
[Proposed Rules]
[Pages 67672-67675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-28998]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1956

[Docket No. T-034]
RIN 1218-AB98


Notice of the Submission of the New Jersey State Plan for Public 
Employees Only; Proposal To Grant Initial State Plan Approval; Request 
for Public Comment and Opportunity To Request Public Hearing

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

ACTION: Proposed rule: Initial State Plan approval; request for written 
comments; notice of opportunity to request informal public hearing.

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SUMMARY: This document gives notice of the submission by the New Jersey 
Department of Labor of a State occupational safety and health plan, 
applicable only to public sector employment (employees of the State and 
its political subdivisions), for determination of initial approval 
under section 18 of the Occupational Safety and Health Act of 1970 (the 
``Act''). OSHA is seeking written public comment on whether or not 
initial State plan approval should be granted and offers an opportunity 
to interested persons to request an informal public hearing on the 
question of initial State plan approval.
    Approval of the New Jersey Public Employee Only State plan will be 
contingent upon a determination that the plan meets OSHA's plan 
approval criteria and the availability of funding as contained in the 
Department of Labor's Fiscal Year 2001 budget, which is currently 
pending final Congressional and Executive action.

DATES: Written comments or requests for a hearing must be received by 
December 13, 2000.

ADDRESSES: Written comments or request for a hearing should be 
submitted in duplicate, to the Docket Officer, Docket T-034, U.S. 
Department of Labor, Room N2625, 200 Constitution Avenue, NW., 
Washington, DC 20210, telephone (202) 693-2350. Comments limited to 10 
pages or fewer may also be transmitted by FAX to: (202) 693-1648, 
provided that the original and one copy of the comments are sent to the 
Docket Office immediately thereafter. Electronic comments may be 
submitted on the Internet at: http://ecomments.osha.gov/.

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, NW., Washington, DC 20210; telephone (202) 693-1999.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 18 of the Occupational Safety and Health Act of 1970 (the 
``Act'') 29 U.S.C. 667 provides that a State which desires to assume 
responsibility for the development and enforcement of standards 
relating to any occupational safety and health issue with respect to 
which a Federal standard has been promulgated may submit a State plan 
to the Assistant Secretary of Labor for Occupational Safety and Health 
(``Assistant Secretary'') documenting in detail the proposed program. 
Regulations promulgated pursuant to the Act at 29 CFR part 1956 provide 
that a State may submit a State plan for the development and 
enforcement of occupational safety and health standards applicable only 
to employees of the State and its political subdivisions (``public 
employees''). Under these regulations the Assistant Secretary will 
approve a State plan for public employees if the plan provides for the 
development and enforcement of standards relating to hazards in 
employment covered by the plan which are or will be at least as 
effective in providing safe and healthful employment and places of 
employment for public employees as standards promulgated and enforced 
under section 6 of the Federal Act, giving due consideration to 
differences between public and private sector employment. In making 
this determination the Assistant Secretary will consider, among other 
things, the criteria and indices of effectiveness set forth in 29 CFR 
part 1956, Subpart B.

B. New Jersey State Plan History

    In 1973, the New Jersey Department of Labor and Industry obtained 
OSHA approval of a State plan for the enforcement of occupational 
safety and health standards covering private sector workplaces as well 
as a program for

[[Page 67673]]

public employees in New Jersey. That plan was approved by the Assistant 
Secretary on January 22, 1973 (37 FR 2426); 29 CFR 1952.140 et seq.). 
That plan was subsequently withdrawn by the State of New Jersey 
effective June 30, 1975, after the State was unable to gain enactment 
of the necessary State OSHA legislation (40 FR 27655).
    In 1984, the New Jersey State Legislature passed the New Jersey 
Public Employees Occupational Safety and Health (PEOSH) Act, which was 
signed into law by the Governor, and which provided the basis for 
establishing a comprehensive occupational safety and health program 
applicable to the public employees in the State.
    The State formally submitted for Federal approval a plan applicable 
only to public employees in February 1988. OSHA's review findings were 
detailed in an October 1988 letter to then New Jersey Labor 
Commissioner Charles Serraino. OSHA determined that the New Jersey 
statute, as structured, and the proposed State plan presented several 
obstacles to meeting Federal State plan approval criteria.
    A revised plan was submitted by the State on February 19, 1992. On 
March 27, 1992, in a letter to former New Jersey State Labor 
Commissioner Raymond L. Bramucci, OSHA informed the State of its latest 
findings, identifying areas of the proposed plan which needed to be 
addressed or needed clarification. Amended enabling legislation was 
signed into law by Governor Christine Todd Whitman on July 25, 1995, to 
conform the proposed State plan to OSHA requirements. On October 11, 
1995, former New Jersey State Labor Commissioner Peter J. Calderone 
submitted a newly revised PEOSH State plan which OSHA determined was 
conceptually approvable as a developmental State plan, but which could 
not be approved until Congress appropriated additional Federal matching 
grant funds for a new State plan under section 23(g) of the OSHAct. On 
August 1, 2000, current New Jersey Commissioner of Labor, Mark B. Boyd, 
and Commissioner of Health and Senior Services, Christine Grant, 
submitted a further revised plan document, with final amendments 
submitted on September 1, 2000.
    The Act provides for funding ``up to 50%'' of the State plan costs, 
but longstanding language in OSHA's appropriation legislation further 
provides that OSHA must fund ``* * * no less than 50% of the costs 
required to be incurred'' by an approved State plan. The Department of 
Labor's Fiscal Year 2000 budget request included additional section 
23(g) grant funds to allow approval of the New Jersey State plan. 
However, the requested funds were not included in OSHA's final FY 2000 
Congressional appropriation. The Department of Labor's Fiscal Year 2001 
budget, which is pending final Congressional and Executive action, 
again requests funding to allow approval of the New Jersey State plan.
    After an opportunity for public comment, and contingent upon the 
availability of additional section 23(g) grant funds, the Assistant 
Secretary of Labor will approve the New Jersey State plan if it is 
determined that the plan meets the criteria set forth in the 
Occupational Safety and Health Act of 1970 and applicable regulations 
at 29 CFR part 1956, Subpart B. The approval of a State plan for public 
employees in New Jersey is not a significant regulatory action as 
defined in Executive Order 12866.

C. Description of the New Jersey State Plan

    The plan designates the New Jersey Department of Labor as the State 
agency responsible for administering the plan throughout the State. The 
plan includes legislation, the Public Employees Occupational Safety and 
Health Act (the ``State Act,'' N.J.S.A. 34:6A-25 et seq.), passed by 
the New Jersey legislature in 1995. Under that legislation, the New 
Jersey Commissioner of Labor has full authority to adopt standards and 
enforce and administer all laws and rules protecting the safety and 
health of employees of the State and its political subdivisions. The 
State Commissioner of Labor and the State Commissioner of Health and 
Senior Services are both responsible for conducting inspections within 
their jurisdictional areas. (Although health inspections will be 
conducted by the New Jersey State Department of Health and Senior 
Services, all enforcement actions will be initiated by the State 
Department of Labor.) New Jersey has adopted State standards identical 
to Federal occupational safety and health standards promulgated as of 
December 7, 1998, with differences only in its hazard communication and 
fire protection standards. The State plan includes a commitment to 
bring those standards into conformance with OSHA requirements and to 
update all standards within one year after plan approval. The State 
plan also provides that future OSHA standards and revisions will be 
adopted by the State in accordance with 29 CFR 1953.21. The plan also 
includes provisions for the granting to public employers of permanent 
and temporary variances from State standards in terms substantially 
similar to the variance provisions contained in the Federal Act. The 
State provisions require employee notification of variance applications 
as well as employee rights to participate in hearings held on variance 
applications. Variances may not be granted unless it is established 
that adequate protection is afforded employees under the terms of the 
variance. Section 6A-35 of the State Act (N.J.S.A. 34) provides for 
inspections of covered workplaces including inspections in response to 
employee complaints. If a determination is made that an employee 
complaint does not warrant an inspection, the complainant will be 
notified, in writing, of such determination and afforded an opportunity 
to seek informal review of the determination. Additionally, section 6A-
35 of the State Act provides the opportunity for employer and employee 
representatives to accompany an inspector during an inspection for the 
purpose of aiding in the inspection.
    The plan provides for notification to employees of their 
protections and obligations under the plan by such means as a State 
poster, and required posting of notices of violation. Section 6A-45 of 
the State Act provides for protection of employees against discharge or 
discrimination resulting from exercise of their rights under the State 
Act in terms essentially identical to section 11(c) of the Federal Act. 
In lieu of first-instance monetary penalties, the plan provides a 
scheme of enforcement for compelling compliance under which public 
employers are issued notices of violations and orders to comply, for 
any violation of standards and orders. Such notices must allow a 
reasonable abatement period. Public employers, employees and other 
affected parties may seek informal review of the notice of violation 
with the New Jersey Department of Labor, including the reasonableness 
of the abatement period, and/or may seek formal administrative review 
with the New Jersey Department of Labor's Occupational Safety and 
Health Review Commission. Judicial review of the decision of the Review 
Commission may be sought at the Appellate Division of the Superior 
Court. The PEOSH Act further mandates a system of monetary penalties as 
its primary enforcement mechanism for failures to comply with an Order 
of the Commissioner of Labor and willful violations pursuant to section 
6A-41d. The prescribed penalty amounts are up

[[Page 67674]]

to $7,000 per day for failure to abate violations and up to $70,000 for 
willful violations. Such penalties are also subject to administrative 
review and subsequent judicial appeal.
    The plan also includes provisions for right of entry for 
inspection, prohibition of advance notice of inspection and employers' 
obligations to maintain records and provide reports as required. The 
plan further provides assurances of a fully trained, adequate staff, 
including 20 safety and 7 health compliance officers for enforcement 
inspections, and 4 safety and 3 health consultants to perform 
consultation services in the public sector, and 2 safety and 3 health 
training and education staff. 29 CFR 1956.10(g) requires that State 
plans for public employees provide a sufficient number of adequately 
trained and qualified personnel necessary for the enforcement of 
standards. The compliance staffing requirements (or benchmarks) for 
State plans covering both the private and public sectors are 
established based on the ``fully effective'' test established in AFL-
CIO v. Marshall, 570 F.2d 1030 (D.C. Cir., 1978). This staffing test, 
and the complicated formula used to derive benchmarks for complete 
private/public sector plans, is not intended, nor is it appropriate, 
for application to the staffing needs of public employee only plans. 
However, the State has given satisfactory assurance in its plan that it 
will meet the staffing requirements of 29 CFR 1956.10. The State has 
also given satisfactory assurances of adequate State matching funds to 
support the plan and is requesting initial Federal funding of 
$1,771,000.
    Although the State Act sets forth the general authority and scope 
for implementing the New Jersey Public Employees Occupational Safety 
and Health (PEOSH) Plan, the plan is developmental under the terms of 
29 CFR 1956.2(b), in that specific rules and regulations must still be 
adopted to carry out the plan and make it fully operative. The plan 
sets forth a timetable for the accomplishment of these and other 
developmental goals. This timetable addresses such general areas as the 
development or revision of regulations governing enforcement, 
consultation, and variances. Other developmental aspects include hiring 
and training of staff, obtaining laboratory services, development of a 
Field Operations Manual and other implementing policies and procedures, 
and adoption of various forms, procedures, and instructions.

D. Location of the Plan for Inspection and Copying

    A copy of the plan may be inspected and copied during normal 
business hours at the following locations:

Docket Office, Docket T-034, U.S. Department of Labor, Occupational 
Safety and Health Administration, 200 Constitution Avenue, NW., Room N-
2625, Washington, DC 20210;
Office of the Regional Administrator, U.S. Department of Labor, 
Occupational Safety and Health Administration, 201 Varick Street, Room 
670, New York, New York 10014;
New Jersey Department of Labor, Division of Public Safety and 
Occupational Safety and Health, Office of Public Employees' Safety, 
P.O. Box 386, 225 East State Street, 8th Floor West, Trenton, New 
Jersey 08625-0386.

E. Request for Public Comment and Opportunity To Request Hearing

    Public comment on the New Jersey Public Employees Occupational 
Safety and Health (PEOSH) Plan is hereby requested. Interested persons 
are invited to submit written data, views, and comments with respect to 
this proposed initial State plan approval. These comments must be 
received on or before December 13, 2000 and submitted in duplicate to 
the Docket Officer, Docket No. T-034, U.S. Department of Labor, Room N-
2625, 200 Constitution Avenue NW., Washington, DC 20210. Written 
submissions must clearly identify the issues which are addressed and 
the positions taken with respect to each issue. Comments limited to 10 
pages or fewer may also be transmitted by FAX to: (202) 693-1648, 
provided that the original and one copy of the comment are sent to the 
Docket Office immediately thereafter. Electronic comments may be 
submitted on the Internet at: http://ecomments.osha.gov/. The State of 
New Jersey will be afforded the opportunity to respond to each 
submission. The New Jersey Department of Labor must also publish 
appropriate notice within the State of New Jersey within 5 days of 
publication of this notice, announcing OSHA's proposal to approve a New 
Jersey State Plan for Public Employees Only, contingent on the 
availability of appropriated funds, and giving notice of the 
opportunity for public comment.
    Pursuant to 29 CFR 1902.39(f), interested persons may request an 
informal hearing concerning the proposed initial State plan approval. 
Such requests also must be received on or before December 13, 2000 and 
should be submitted in duplicate to the Docket Officer, Docket T-034, 
at the address noted above. Such requests must present particularized 
written objections to the proposed initial State plan approval. The 
Assistant Secretary will decide within 30 days of the last day for 
filing written views or comments and requests for a hearing whether the 
objections raised are substantial and, if so, will publish notice of 
the time and place of the scheduled hearing.
    The Assistant Secretary will, within a reasonable time after the 
close of the comment period or after the certification of the record if 
a hearing is held, publish his decision in the Federal Register. All 
written and oral 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 requests for hearing and all 
materials submitted in response to this notice and at any subsequent 
hearing, will be available for 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.

F. Regulatory Flexibility Act

    OSHA certifies pursuant to the Regulatory Flexibility Act of 1980 
(5 U.S.C. 601 et seq.) that the proposed initial approval of the New 
Jersey State Plan will not have a significant economic impact on a 
substantial number of small entities. By its own terms, the plan will 
have no effect on private sector employment, but is limited to the 
State and its political subdivisions. Moreover, the New Jersey 
legislation has been in effect since 1984, when the State first 
established a safety and health program for State and local government 
employees. Since that time, the New Jersey program has been in 
operation with State funding and most public sector employers in the 
State, including small units of local government, have been subject to 
its terms. Compliance with State OSHA standards is required by State 
law; Federal approval of a State plan imposes regulatory requirements 
only on the agency responsible for administering the State plan. 
Accordingly, no new obligations would be placed on public sector 
employers as a result of Federal approval of the plan.

G. Federalism

    Executive Order 13132, ``Federalism,'' emphasizes consultation 
between

[[Page 67675]]

Federal agencies and the States and establishes specific review 
procedures the Federal government must follow as it carries out 
policies which affect state or local governments. OSHA has consulted 
extensively with New Jersey throughout the development, submission and 
consideration of its proposed State plan. Although OSHA has determined 
that the requirements and consultation procedures provided in Executive 
Order 13132 are not applicable to initial approval decisions under the 
Act, which have no effect outside the particular State receiving the 
approval, OSHA has reviewed the New Jersey initial approval decision 
proposed today, and believes it is consistent with the principles and 
criteria set forth in the Executive Order.

H. Authority

    This document was prepared under the direction of Charles N. 
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. 3-2000 (65 FR 
50017).

    Signed at Washington, DC this 6th day of November 2000.
Charles N. Jeffress,
Assistant Secretary of Labor.
[FR Doc. 00-28998 Filed 11-9-00; 8:45 am]
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