This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

12488

Vol. 60, No. 44

Tuesday, March 7, 1995

DEPARTMENT OF LABOR

Occupational Safety and Health

Administration

29 CFR Part 1952

[Docket No. T–015A]

North Carolina 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 (i.e., the number of

compliance personnel necessary to

assure a ‘‘fully effective’’ enforcement

effort) applicable to the North Carolina

State plan. North Carolina’s benchmarks

of 83 safety inspectors and 119

industrial hygienists 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), and revised on January

17, 1986 (51 FR 2481) to 50 safety

inspectors and 27 industrial hygienists.

The North Carolina State plan has

reconsidered the information utilized in

its initial revision of the State’s 1980

benchmarks and determined that

changes in local conditions and

improved inspection data warrant

further revision of its benchmarks to 64

safety inspectors and 50 industrial

hygienists. OSHA is soliciting written

public comments to afford interested

persons an opportunity to present their

views regarding whether or not the

proposed revised benchmarks for North

Carolina will provide the State with

sufficient compliance personnel

necessary to assure a ‘‘fully effective’’

enforcement effort and, consequently,

should be approved.

DATES: Written comments must be

received by April 11, 1995.

ADDRESSES: Written comments should

be submitted, in quadruplicate, to the

Docket Officer, Docket No. T–015A, U.S.

Department of Labor, Room N–2625,

200 Constitution Avenue, NW.,

Washington, DC 20210, (202) 219–7894.

FOR FURTHER INFORMATION CONTACT:

Richard Liblong, 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) 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 ensuing 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

(safety inspectors and industrial

hygienists) 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 North Carolina to allocate

83 safety and 119 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

contemplates subsequent revisions to

the benchmarks in light of more current

data, including State-specific

information, and other relevant

considerations. In August 1983, OSHA

and the State plan representatives

initiated a comprehensive review of the

1980 benchmark and developed a

formula that each State could use to

revise its benchmarks when

circumstances warranted such revision.

(A complete discussion of both the 1980

benchmarks and the benchmark revision

process is set forth in the January 16,

1985 Federal Register (50 FR 2491)

regarding the Wyoming occupational

safety and health plan.)

The State of North Carolina

participated in this benchmark revision

process and, in September 1984,

requested that the Assistant Secretary

approve revised compliance staffing

levels of 50 safety and 27 health

compliance officers for a ‘‘fully

effective’’ program responsive to the

occupational safety and health needs

and circumstances in the State. These

revised benchmarks were approved by

the Assistant Secretary on January 17,

1986 (51 FR 2481). In March 1989 the

North Carolina House Appropriations

Committee of the North Carolina

General Assembly passed a resolution

instructing the Commissioner of Labor

to renegotiate the appropriate number of

occupational safety and health

compliance officers with OSHA. In June

1990 the State of North Carolina

requested that the Assistant Secretary

approve revisions to its 1984

compliance staffing benchmark levels

which the State found to be more

reflective of current occupational safety

and health needs and circumstances

within the State.

In September 1991, a catastrophic fire

occurred at a poultry processing plant in

North Carolina, resulting in the

reinstitution of limited Federal

concurrent jurisdiction and a special

Federal evaluation of the State’s

occupational safety and health

operations. The revision of North

Carolina’s benchmarks was suspended

during this time. Significant legislative

and budgetary changes were made in

the North Carolina State program and,

for Fiscal Year 1995, the State

authorized compliance staffing of 64

safety and 51 health inspectors. The

North Carolina Department of Labor has

requested that the Assistant Secretary
Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Proposed Rules 12489

resume consideration of State’s

proposed revision of its benchmarks at

this time.

The North Carolina plan, which was

granted initial State plan approval on

February 1, 1973 (38 FR 3041), is

administered by the North Carolina

Department of Labor. The exercise of

concurrent Federal enforcement

authority was suspended in North

Carolina on February 20, 1975, with the

signing of an Operational Status

Agreement (April 15, 1975, 40 FR

16843). Limited Federal enforcement

authority was reasserted on October 14,

1991 (56 FR 55193), but it is anticipated

that this authority will be suspended in

the near future. The plan was certified

as having satisfactorily completed all of

its developmental commitments on

October 5, 1976 (41 FR 43901).

Proposed Revision of Benchmarks

In June 1990, the North Carolina

Department of Labor (the designated

agency or ‘‘designee’’ in the State)

completed, in conjunction with OSHA,

a review of the compliance staffing

benchmarks approved for North

Carolina in 1986. In accord with the

formula and general principles

established by the joint Federal/State

task group for the revision of the 1980

benchmarks, North Carolina reassessed

the staffing necessary for a ‘‘fully

effective’’ occupational safety and

health program in the State. This

reassessment resulted in a proposal,

contained in supporting documents, of

revised staffing benchmarks of 64 safety

and 50 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, by industry and size group,

utilizing the 1989 Dun and Bradstreet

listing of employers for North Carolina

and Federal data on North Carolina’s

lost workday case rates for 1988) 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).

The State has historically spent an

average of 12.4 hours on such

inspections, and each State safety

inspector is able to devote 1,440 hours

annually to actual inspection activity

based on State personnel practices. A

total of 4,870 establishments have been

added to the initial general schedule

safety inspection universe of 3,216

establishments based upon the State’s

analysis of past injury and inspection

experience to identify those additional

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 (e.g., construction)

and public employee (State and local

government) work sites, response to

complaints and accidents, and followup inspections to ascertain compliance,

based upon recent historical experience

and an assessment of proper safety

coverage in the State of North Carolina.

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

1984 County Business Patterns and the

1987 Dun and Bradstreet listings for

North Carolina) in the 150 top high

hazard Standard Industrial

Classifications (SICs) in the State having

the highest likelihood of exposure of

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 31.85

hours on such inspections, and each

health compliance officer is able to

devote 1,504 hours annually to actual

inspection activity, based upon State

personnel practices. A total of 2,955

establishments have been added to the

initial general schedule health

inspection universe of 2,028

establishments based upon 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 North

Carolina.

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 for compliance 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 receive

final approval under section 18(e) of the

Act. The proposed revised benchmarks

of 64 safety and 50 health compliance

officers meet North Carolina’s Fiscal

Year 1995 allocated compliance

positions of 64 safety and 51 health

officers. (Of those allocated positions,

30 safety and 40 health inspectors are

completely funded by the State; the

remainder are funded on a 50/50 basis

with State and Federal funds.) OSHA

does not anticipate any significant

increase in its appropriations whereby it

would be able to provide 50 percent

Federal funding for North Carolina to

meet its proposed revised staffing

benchmarks.) Approval of the revised

benchmarks would be accompanied by

an amendment to 29 CFR part 1952,

Subpart I, which generally describes the

North Carolina plan and sets forth the

State’s revised safety and health

benchmark levels.

Documents of Record

A comprehensive document

containing the proposed revision to

North Carolina’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–015A, U.S.

Department of Labor, Room N–2625, 200

Constitution Avenue NE., Washington,

D.C. 20210.

Regional Administrator—Region IV, U.S.

Department of Labor, OSHA, 1371

Peachtree Street NE., Atlanta, Georgia

30367.

North Carolina Department of Labor, 319

Chapanoke Road, Raleigh, North Carolina

27603.

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.
12490 Federal Register / Vol. 60, No. 44 / Tuesday, March 7, 1995 / Proposed Rules

Marshall, the 1978 implementing Court

Order, the 1980 Report to the Court, and

a report describing the 1983–1984

benchmark revision process. Docket

Number T–018 is available for public

inspection and copying at the Docket

Office of the U.S. Department of Labor,

Room N–2625.

Public Participation

OSHA is soliciting public

participation in its consideration of the

approval of the revised North Carolina

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 North Carolina in

accordance with the Court Order in

AFL–CIO v. Marshall. Comments must

be received on or before April 11, 1995,

and be submitted in quadruplicate to

the Docket Office, Docket No. T–015A,

U.S. Department of Labor, Room N–

2625, 200 Constitution Avenue, N.W.,

Washington, D.C. 20210. Written

submissions must be directed to the

specific benchmarks proposed for North

Carolina 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.

1–90 (55 FR 9033))

Signed at Washington, DC, this 28th day of

February 1995.

Joseph A. Dear,

Assistant Secretary of Labor.

[FR Doc. 95–5503 Filed 3–6–95; 8:45 am]

BILLING CODE 4510–26–M

POSTAL SERVICE

39 CFR Part 111

Special Bulk Third-Class Eligibility

Restrictions

AGENCY: Postal Service.

ACTION: Proposed rule.

SUMMARY: This proposed rule

implements provisions of Public Laws

103–123 and 103–329, the Treasury,

Postal Service, and General Government

Appropriations Acts for 1994 and 1995,

respectively. The proposed rule is

necessary to clarify and implement

further restrictions on the use of special

bulk third-class rates.

DATES: Comments must be received on

or before April 6, 1995.

ADDRESSES: Written comments should

be mailed or delivered to Manager,

Mailing Standards, USPS Headquarters,

475 L’Enfant Plaza SW., Washington,

DC 20260–2419. Copies of all written

comments will be available for

inspection and photocopying from 9

a.m. to 4 p.m., Monday through Friday,

in Room 6800 at the above address.

FOR FURTHER INFORMATION CONTACT:

Ernest J. Collins, (202) 268–5316.

SUPPLEMENTARY INFORMATION: On

October 28, 1993, the President signed

into law Public Law 103–123, the

Treasury, Postal Service, and General

Government Appropriations Act for

1994. Title VII of the Act, the Revenue

Forgone Reform Act, amended 39 U.S.C.

3626 by adding provisions to

subsections (j) and new subsection (m)

(1993 amendments). These sections add

further restrictions on the use of special

bulk third-class postage rates by

qualified organizations. Specifically, the

law makes certain types of

advertisements, promotions, and offers,

as well as some products, ineligible to

be mailed at the special bulk third-class

rates. The final rule implementing the

new statutory restrictions was published

by the Postal Service on May 5, 1994,

with an implementation date of

September 4, 1994. It was subsequently

delayed indefinitely by notice in the

Federal Register (59 FR 39967) on

August 5, 1994.

On September 30, 1994, the President

signed into law Public Law 103–329, the

Treasury, Postal Service, and General

Government Appropriations Act for

1995 (1994 amendment), amending

provisions of Public Law 103–123. The

amendment creates an exception to the

1993 amendments for advertisements

printed in materials that meet the

content requirements for periodical

publications as prescribed by the Postal

Service.

The 1993 amendments established

new content-based restrictions on

matter eligible for special bulk thirdclass rates. In order for material that

advertises, promotes, offers, or, for a fee

or consideration, recommends,

describes, or announces the availability

of any product or service to qualify for

mailing at the special bulk third-class

rates, the sale of the product or the

providing of the service must be

substantially related to the exercise or

performance by the organization of one

or more of the purposes constituting the

basis for the organization’s

authorization to mail at such rates. The

determination whether a product or

service is substantially related to an

organization’s purpose is to be made in

accordance with standards established

under the Internal Revenue Code. The

amendments also added restrictions on

the mailing of products at the special

bulk third-class rates.

The 1994 amendment provides that

advertisements mailed at the special

bulk third-class rates need not meet the

substantially related test if the material

of which the advertisement is a part

meets the content requirements of a

periodical publication, as specified by

the Postal Service. The 1994

amendment does not affect the

restrictions on the mailing of products

established in the 1993 amendments.

This proposal republishes for

comment the rules adopted on May 5,

1994, with certain changes. The major

change is the addition of new sections

E370.5.4(d)(2) and 5.8 of the Domestic

Mail Manual (DMM) that implement the

new exception to the restrictions in the

1993 amendments. Specifically, the new

rule provides that the 1993 amendments

do not apply to advertisements for

products or services that appear in

third-class material meeting the content

requirements for periodical

publications. These content

requirements are listed in DMM

E370.5.8.

Other changes from the rules

published May 5, 1994, include the

following. Several sections in the DMM

have been renumbered to accommodate

the addition of new DMM E370.5.8;

section 5.7(c) has been deleted. This

provision excluded certain material in

newsletters and other publications from

the new advertising restrictions.

Because the publications that were

intended to benefit from the provision

are among those that are expected to

benefit from the new 1994 exception,

this section has been deleted as

unnecessary and potentially confusing.

Products and services advertised in

materials meeting the content

requirements for a periodical