[Federal Register: January 11, 2001 (Volume 66, Number 8)]
[Rules and Regulations]
[Page 2265-2273]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11ja01-15]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1956
RIN 1218-AB98
Notice of Initial Approval Determination; New Jersey Public
Employee Only State Plan
AGENCY: Occupational Safety and Health Administration, Department of
Labor (OSHA).
ACTION: Final Rule: Initial State Plan Approval; New Jersey Public
Employee Only State Plan.
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SUMMARY: The New Jersey Public Employee Only State plan, a State
occupational safety and health plan applicable only to public sector
employees (employees of the State and its political subdivisions), is
approved
[[Page 2266]]
as a developmental plan under section 18 of the Occupational Safety and
Health Act of 1970 and 29 CFR part 1956. Under the approved plan, the
New Jersey Department of Labor is designated as the State agency
responsible for the development and enforcement of occupational safety
and health standards applicable to public employment throughout the
State. The Occupational Safety and Health Administration (OSHA) retains
full authority for coverage of private sector employees in the State of
New Jersey as well as for coverage of Federal government employees.
EFFECTIVE DATE: January 11, 2001.
FOR FURTHER INFORMATION CONTACT: Paula O. White, Director, Federal-
State Operations, Occupational Safety and Health Administration, U.S.
Department of Labor, Room N-3700, 200 Constitution Avenue, NW.,
Washington, DC 20210. Telephone: (202) 693-2200, Fax: (202) 693-1671,
E-mail: Paula.White@osha.gov.
SUPPLEMENTARY INFORMATION:
A. Introduction
Section 18 of the Occupational Safety and Health Act of 1970 (the
``OSH Act''), 29 U.S.C. 667, provides that a State which desires to
assume responsibility for the development and enforcement of
occupational safety and health 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 OSH Act at 29 CFR part 1956 provide that a State may
submit a State plan for the development and enforcement of standards
applicable only to employees of the State and its political
subdivisions (``public employees''). State and local government workers
are excluded from Federal coverage under the OSH Act and are provided
protection only through the vehicle of a State Plan approved pursuant
to Section 18 of the Act.
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 OSH 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. A State plan for public employees may receive
initial approval even though, upon submission, it does not fully meet
the criteria set forth in Secs. 1956.10 and 1956.11, if it includes
satisfactory assurances by the State that it will take the necessary
steps, and establishes an acceptable developmental schedule, to meet
the criteria within a 3-year period (29 CFR 1956.2(b)). The Assistant
Secretary publishes a notice of ``certification of completion of
developmental steps'' when all of a State's developmental commitments
have been met satisfactorily (29 CFR 1956.23; 1902.33 and 1902.34) and
the plan is structurally complete. After certification of a State plan
for public employees, OSHA may initiate a period of at least one year
of intensive monitoring, after which OSHA may make a determination
under the procedures of Secs. 1902.38, 1902.39, 1902.40 and 1902.41 as
to whether, on the basis of actual operations, the criteria set forth
in Secs. 1956.10 and 1956.11 for ``at least as effective'' State plan
performance are being applied under the plan--a determination of
``operational effectiveness.''
B. History of the Present Proceeding
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 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, N.J.S.A.
34:6A (the ``State 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 the State in which OSHA
determined that the New Jersey statute, as then structured, and the
proposed State plan failed to meet Federal Public Employee Only State
plan approval criteria.
A revised plan was submitted by the State on February 19, 1992. On
March 27, 1992, OSHA informed the State of its findings, identifying
areas of the proposed plan which needed to be addressed or needed
clarification. Amended enabling legislation was signed into law on July
25, 1995, to conform the proposed State plan to OSHA requirements. On
October 11, 1995, the New Jersey State Labor Commissioner submitted a
newly revised State plan which OSHA determined was conceptually
approvable as a developmental State plan, but which could not be
approved until additional Federal matching grant funds, necessary for
approval of a new State plan, were appropriated under section 23(g) of
the OSH Act. (The OSH 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.
Thus Federal matching grant funds must be available before a State plan
can be approved.)
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 subsequent
amendments submitted on August 15, August 29, September 1, September
22, September 28, and October 5, 2000. On December 21, 2000, the
President signed the appropriation act for FY 2001 for the Department
of Labor, as approved by the Congress, which includes funding for the
Occupational Safety and Health Administration specifically designated
for initial approval of the New Jersey State plan.
On November 13, 2000, OSHA published notice in the Federal Register
(65 FR 67672) concerning the submission of the New Jersey Public
Employee Only State plan, announcing that initial Federal approval of
the plan was at issue, and offering interested parties an opportunity
to review the plan and submit data, views, arguments or requests for a
hearing concerning the plan. The New Jersey Department of Labor
published similar notices throughout the State from November 15-17,
2000, in the following New Jersey newspapers: The Newark Star-Ledger,
The South Jersey Courier-Post,
[[Page 2267]]
The Trenton Times, The Atlantic City Press, and The Bergen Record. (Ex.
#5)
To assist and encourage public participation in the initial
approval process, copies of the New Jersey State plan were maintained
as Docket No. T-034 in the Docket Office, Department of Labor,
Occupational Safety and Health Administration, Third Street and
Constitution Avenue, NW, Room N-2625, Washington, DC 20210; Office of
the New York Regional Administrator, U.S. Department of Labor,
Occupational Safety and Health Administration, 201 Varick Street, Room
670, New York, New York 10014; and the 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.
C. Summary and Evaluation of Comments Received
In response to OSHA's November 13, 2000, Federal Register notice,
which announced submission of the New Jersey State plan and its
availability for public comment, three (3) written public comments were
submitted by: (1) Peter P. Guzzo, Executive Director/Legislative Agent,
for Consumers for Civil Justice (OSHA Docket #T-034, Exhibit 3-1.); (2)
Rick Engler, Director, New Jersey Work Environment Council, cosigned by
the following 15 organizations: Harold Schaitberger, General President,
for International Association of Fire Fighters, AFL-CIO; Thomas
Canzanella, President, for Professional Firefighters Association of New
Jersey, IAFF; William J. Lavin, for New Jersey Firemen's Mutual
Benevolent Association; Michael Johnson, President, for New Jersey
Education Association; David Legrande, Director of Occupational Safety
and Health, for Communications Workers of America (CWA), AFL-CIO;
Robert Pursell, New Jersey Area Director, for CWA District 1; Carla
Katz, President, for CWA Local 1034; Michael Lohman, Staff
Representative, for CWA, Local 1033, and Chairman, CWA New Jersey State
Worker Locals Health and Safety Coordinating Committee; Bill Borwegan,
Director of Occupational Safety and Health, for Service Employees
International Union, AFL-CIO; Daryl Alexander, Associate Director for
Occupational Safety and Health, for American Federation of Teachers
(AFT), AFL-CIO; Nicholas C. Yovnello, President, for Council of New
Jersey State College Locals, AFT; Ken Carlson, President for Rutgers
Council of American Association of University Professors; Gerald
Newsome, Trustee, for International Federation of Professional and
Technical Engineers Local, 195, AFL-CIO; Edward II Lennon, President,
for State Troopers Fraternal Association of New Jersey; Mark Dudzie,
President, for Paper, Allied-Industrial, Chemical, and Energy Workers
Local 2-149, AFL-CIO (OSHA Docket # T-034, Exhibit 3-2.); and; (3)
Verri Andrea, student, University of Wisconsin-Madison. (OSHA Docket #
T-034, Exhibit #4-1.)
All of the commenters listed above indicated their support for OSHA
approval of the New Jersey Public Employee Only State plan. None has
requested a public hearing or raised any issues for consideration.
D. Review Findings
As required by 29 CFR 1956.2 in considering the granting of initial
approval to a State public employee only plan, OSHA must determine
whether the State plan meets or will meet the criteria in 29 CFR
1956.10 and the indices of effectiveness in 29 CFR 1956.11. Findings
and conclusions in each of the major State plan areas addressed by 29
CFR part 1956 are as follows:
(1) Designated Agency
Section 18(c)(1) of the OSH Act provides that a State occupational
safety and health plan must designate a State agency or agencies
responsible for administering the plan throughout the State (29 CFR
1956.10(b)(1)). The plan must describe the authority and
responsibilities of the designated agency and provide assurance that
other responsibilities of the agency will not detract from its
responsibilities under the plan (29 CFR 1956.10(b)(2)). The New Jersey
Department of Labor is designated by revised N. J. S. A. 34:6A-25 et
seq., as the sole agency responsible for administering and enforcing
the New Jersey Public Employee Occupational Safety and Health (PEOSH)
plan. (New Jersey State plan, p. 15.) The plan also describes the
authority of the New Jersey Department of Labor and its other
responsibilities. (New Jersey State plan, pp.16-16.2.) The New Jersey
Department of Health and Senior Services has responsibility for
conducting inspections with regard to occupational health hazards but
all standards adoption and enforcement authority rests with the New
Jersey Department of Labor. (N.J.S.A. 34:6A-30(e))
(2) Scope
Section 18(c)(6) of the OSH Act provides that the State, to the
extent permitted by its law, shall under its plan establish and
maintain an effective and comprehensive occupational safety and health
program applicable to all employees of the State and its political
subdivisions. Only where a State is constitutionally precluded from
regulating occupational safety and health conditions in certain
political subdivisions may the State exclude such political subdivision
employees from coverage (29 CFR 1956.2(c)(1)). Further, the State may
not exclude any occupational, industrial or hazard grouping from
coverage under its plan unless OSHA finds that the State has shown
there is no necessity for such coverage (29 CFR 1956.2(c)(2)).
The scope of the New Jersey State plan includes any employee of the
State and any political subdivision thereof, including a public
authority or any other governmental agency or authority. No employees
of any political subdivision of the State or local government are
excluded from the plan. (New Jersey State plan, pp 10-11.) The New
Jersey Department of Labor adopts all Federal OSHA occupational safety
and health standards, and the plan excludes no occupational, industrial
or hazard grouping. (New Jersey State plan, p. 10)
Consequently, OSHA finds that the New Jersey plan contains
satisfactory assurances that no employees of the State and its
political subdivisions are excluded from coverage, and the plan
excludes no occupational, industrial or hazard grouping.
(3) Standards
Section 18(c)(2) of the OSH Act requires State plans to provide for
occupational safety and health standards which are at least as
effective as Federal OSHA standards. A State plan for public employees
must therefore provide for the development or adoption of such
standards and must contain assurances that the State will continue to
develop or adopt such standards (29 CFR 1956.10(c); 1956.11(b)(2)(ii)).
A State may establish the same standards as Federal OSHA (29 CFR
1956.11(a)(1)), or alternative standards that are at least as effective
as those of Federal OSHA (29 CFR 1956.11(a)(2)). Where a State's
standards are not identical to Federal OSHA, they must meet the
following criteria: they must be promulgated through a procedure
allowing for consideration of all pertinent factual information and
participation of all interested persons (29 CFR 1956.11(b) (2)(iii));
must, where dealing with toxic materials or harmful physical agents,
assure employee protection throughout his or her working life (29 CFR
1956. 11(b)(2)(i));
[[Page 2268]]
must provide for furnishing employees appropriate information regarding
hazards in the workplace through labels, posting, medical examinations,
etc. (29 CFR 1956.11(b)(2)(vi)); and, must require suitable protective
equipment, technological control, monitoring, etc. (29 CFR
1956.11(b)(2)(vii)).
In addition, the State plan must provide for prompt and effective
standards setting actions for protection of employees against new and
unforeseen hazards, by such means as authority to promulgate emergency
temporary standards (29 CFR 1956.11(b)(2)(v)).
The PEOSH Act, 34:6A-30 et seq., mandates that the Commissioner of
Labor (the ``Commissioner'') shall adopt all safety and health
standards promulgated under the OSH Act which are in effect on the
effective date of the State Act (January 17, 1984, as amended July 25,
1995), and incorporate future revisions. (New Jersey State plan, p.19)
The procedures for State adoption of Federal occupational safety and
health standards include publication in the New Jersey Register in
accordance with N.J.S.A. 52:14B-5. New Jersey has adopted State
standards identical to Federal occupational safety and health standards
promulgated as of December 7, 1998, with the exception of the 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 intends to incorporate appropriate provisions of
the New Jersey Right to Know Act into its public sector occupational
hazard communication standard.) The State plan also provides that
future OSHA standards and revisions will be adopted by the State in
accordance with 29 CFR 1953.21.
Under the New Jersey State plan, the Commissioner of Labor, in
consultation with the Commissioner of Health and Senior Services, and
the Commissioner of Community Affairs, and with the advice of the
Public Employees' Safety and Health Advisory Board may adopt
alternative or different occupational safety and health standards where
no federal standards are applicable or where more stringent standards
are deemed advisable. (N.J.S.A. 34:6A-30(c); New Jersey State plan,
pp.21-28). Such standards will be adopted in accordance with the State
Act and the New Jersey Administrative Procedures Act, N.J.S.A. 52-148-1
et seq., which include provisions for interested persons to petition
the State for a new or revised standard and which give interested
persons the opportunity to participate in any hearing for the
development, modification or establishment of standards.
Section 34:6A-30(b) of the amended State Act provides for
coordination of the provisions of the State uniform construction code
and the uniform fire safety code with State occupational safety and
health standards. The Commissioner of Community Affairs is charged with
amending the uniform construction or fire codes to reflect any more
stringent applicable provisions of the State OSHA standards and with
preparing an application to the Assistant Secretary for approval of any
equally effective provision of the uniform construction or fire codes
for incorporation into the State plan. In response to OSHA's concerns
that building or fire codes may not appropriately address employee
protection, New Jersey amended its State Act and provided assurance
that Federal approval will be obtained prior to the incorporation of
building or fire codes as State occupational safety and health
standards into the State plan. (New Jersey State plan, p.27)
The New Jersey State plan also provides for the adoption of Federal
emergency temporary standards within 30 days of Federal promulgation.
State regulations will be amended to reflect this. (New Jersey State
plan, p. 27)
Based on the foregoing plan provisions and assurances and
commitments, OSHA finds the New Jersey State plan to have met the
statutory and regulatory requirements for initial plan approval with
respect to occupational safety and health standards.
(4) Variances
A State plan must provide authority for the granting of variances
from State standards upon application of a public employer or employers
which corresponds to variances authorized under the OSH Act, and for
consideration of the views of interested parties, by such means as
giving affected employees notice of each application and an opportunity
to request and participate in hearings or other appropriate proceedings
relating to applications for variances (29 CFR 1956.11(b)(2)(iv)).
The State Act provides for the granting of permanent and temporary
variances from State standards (N.J.S.A., Section 34:6A-39; New Jersey
State Plan, pp. 35-51) in terms substantially similar to the variance
provisions of the OSH 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. However, the
State's variance procedures at N.J.A.C. 12:110-6.5(c) require revision.
The State has provided assurance in its developmental schedule that
within two years of initial plan approval it will amend its regulations
to reflect variance provisions contained in the Federal 29 CFR Part
1905. (New Jersey State Plan p. 38.)
Accordingly, OSHA finds that the New Jersey State plan effectively
provides or will provide opportunity and procedures for variances from
its occupational safety and health standards.
(5) Enforcement
Section 18(c)(2) of the OSH Act and 29 CFR 1956.10(d)(1) require a
State plan to include provisions for enforcement of State standards
which are or will be at least as effective in providing safe and
healthful employment and places of employment as the Federal program,
and to assure that the State's enforcement program for public employees
will continue to be at least as effective as the Federal program in the
private sector.
(a) Legal Authority. The State must require public employer and
employee compliance with all applicable standards, rules and orders (29
CFR 1956.10(d)(2)) and must have the legal authority for standards
enforcement (section 18(c)(4)) including compulsory process (29 CFR
1956.11(c)(2)(viii)).
Section 34:6A-33 of the State Act requires public employers to
comply with the New Jersey Department of Labor's occupational safety
and health standards; section 34:6A-34 requires employees to comply
with all standards and regulations applicable to their own actions and
conduct. Section 34:6A-31 of the revised State Act also provides that
space leased by a public employer must be in conformance with current
occupational safety and health requirements at the time a lease is
executed.
(b) Inspections. A State plan must provide for inspection of
covered workplaces, including in response to complaints, where there
are reasonable grounds to believe a hazard exists (29 CFR
1956.11(c)(2)(i)).
When no compliance action results from inspection of violations
alleged by employee complaints, the State must notify the complainant
of its decision not to take compliance action by such means as written
notification and
[[Page 2269]]
opportunity for informal review (29 CFR 1956.11(c)(2)(iii)).
The State Act provides for inspections of covered workplaces
including inspections in response to employee complaints by the
Commissioner of Labor, and with regard to health hazards, by the
Commissioner of Health and Senior Services (N.J.S.A., Sections 34:6A-
35, 36, and 38.) The New Jersey State plan (Section 1, pp. 73-75)
provides that when a determination has been made that a complaint does
not warrant an inspection, the complainant shall be notified in writing
of the determination and given an opportunity to request a review of
that determination. In response to OSHA comments, New Jersey revised
its regulations and procedures to allow complainants to elect anonymity
in the process.
(c) Employee Notice and Participation in Inspection. In conducting
inspections, the State plan must provide an opportunity for employees
and their representatives to point out possible violations through such
means as employee accompaniment or interviews with employees (29 CFR
1956.11(c) (2)(ii)).
The State Act provides the opportunity for an employer and employee
representative to accompany a Department of Labor or Department of
Health and Senior Services inspector for the purpose of aiding in the
inspection. (N.J.S.A., Section 34:6A-36 and -38.) Where there is no
authorized employee representative, the inspectors are required to
consult with a reasonable number of employees concerning matters of
safety and health in the workplace. Any employee who accompanies an
inspector representing either Commissioner on an inspection shall
receive payment of normal wages for the time spent on the inspection.
(N.J.S.A. Sec 34:6A-35,-36, -38)
In addition, the State plan must provide that employees be informed
of their protections and obligations under the Act by such means as the
posting of notices (29 CFR 1956.11(c)(2)(iv)); and provide that
employees have access to information on their exposure to regulated
agents and access to records of the monitoring of their exposure to
such agents (29 CFR 1956.11(c)(2)(vi)).
The State Act provides that the Commissioner of Labor must issue
regulations requiring that employers, through posting of notices,
training or other appropriate means, keep their employees informed of
their protections. (N.J.S.A., Section 34:6A-31.) A poster, which
outlines employee protections and obligations under the Act, has been
designed and distributed to public employers. Specific regulations as
well as the poster have been submitted by the State. (New Jersey State
Plan, Attachments 3 and 9.)
Information on employee exposure to regulated agents (in the public
sector), access to medical and exposure records, and provision and use
of suitable protective equipment is provided through State standards.
New Jersey has adopted all Federal standards as of December 7, 1998
with the exception of 29 CFR part 1910, subpart L--Fire protection, and
29 CFR 1910.1200 Hazard Communication. The State plan contains an
assurance that the State intends to adopt all applicable Federal
standards either identically or submit alternative standards which are
at least as effect as the Federal standards within one year of plan
approval as a part of the 3-year developmental schedule. (New Jersey
State Plan, pp. 28-32)
(d) Nondiscrimination. A State is expected to provide appropriate
protection to employees against discharge or discrimination for
exercising their rights under the State's program, including provision
for employer sanctions and employee confidentiality (29 CFR 1956.11(c)
(2)(v)).
The State Act provides that no person shall discharge, or otherwise
discipline, or in any manner discriminate against any employee because
such employee has filed a complaint or instituted or caused to be
instituted any proceeding under or related to this section or has
testified or is about to testify in any such proceeding, or because of
the exercise by such employee on behalf of the employee or others of
any right under this section. (N.J.S.A., Section 34:6A-45.)
The State Act provides that an employee who believes that he or she
has been discharged, disciplined or otherwise discriminated against by
any person in violation of this section, may within 180 days after the
employee first has knowledge such a violation did occur, file a
complaint with the Commissioner of Labor alleging that discrimination.
(N.J.S.A., Section 34:6A-45b.) The Commissioner shall investigate such
complaints as appropriate and make a determination within 90 days which
shall include an order for all appropriate relief. The monetary penalty
established for repeated violations may also be applied to repeated
discriminatory acts. (N.J.S.A. 34:6A-41(d))
New Jersey will amend its regulations on nondiscrimination
procedures, N.J.A.C. 12:110-7, to conform with Federal guidelines
within two years after plan approval. (New Jersey State Plan, p. 80;
Attachment 3.)
e. Restraint of Imminent Danger. A State plan is required to
provide for the prompt restraint of imminent danger situations (29 CFR
1956.11(c)(2)(vii)).
Section 34:6A.44 of the State Act provides that the Attorney
General, at the request of and on behalf of the Commissioner of Labor,
may bring an action in the Superior Court to restrain any conditions or
practices in any workplace which the Commissioner determines, in
accordance with the State Act ( N.J.S.A. 34:6A-41), are such that a
danger exists which could reasonably be expected to cause death or
serious physical harm immediately or before the danger could be
eliminated through the enforcement process. (New Jersey State plan, pp.
66-69.)
(f) Right of Entry; Advance Notice. A State program is required to
have authority for right of entry to inspect and compulsory process to
enforce such right equivalent to the Federal program (section 18(c)(3)
of the Act and 29 CFR 1956.10(e)). Likewise, a State is expected to
prohibit advance notice of inspection, allowing exception thereto no
broader than in the Federal program (29 CFR 1956.10(f)).
The State Act provides that the Commissioner of Labor and the
Commissioner of Health and Senior Services both have the right of
immediate entry of any premises occupied by a public employer at
reasonable hours, and without advance notice if there is reason to
believe that a violation of this section of State law has occurred.
(N.J.S.A., 34:3A-35.)
The New Jersey State plan ( p.63-64) describes its general policy
and procedures prohibiting advance notice of inspections and allowing
exception thereto. Any person who gives advance notice of any
inspection to be conducted under this act, without authority from the
Commissioner of Labor or the Commissioner of Health and Senior Services
or their designees, shall upon conviction, be punished by a fine of not
more than $1,000 or by imprisonment for not more than six (6) months,
or by both. (N.J.S.A. 34:6A-35(g)).
(g) Citations, Sanctions, and Abatement. A State plan is expected
to have authority and procedures for promptly notifying employers and
employees of violations, including proposed abatement requirements,
identified during inspection, for the proposal of effective first-
instance sanctions against employers found in violation of standards,
and for prompt employer notification of any such sanctions. In lieu of
monetary penalties as a sanction, a complex of enforcement
[[Page 2270]]
tools and rights, including administrative orders and employee right to
contest citations (as well as abatement dates), may be demonstrated to
be as effective as monetary penalties in achieving compliance in public
employment (29 CFR 1956.11(c)(2)(ix) and (x)).
The State Act describes the authority and general procedures of the
Commissioner of Labor to promptly notify public employers and employees
of violations, and abatement requirements and to compel compliance
therewith. The Commissioner of Labor must issue a written order to
comply with reasonable promptness which is in no case no more than six
months after determination of the existence of a safety violation or
certification from the Commissioner of Health and Senior Services of a
health violation. (N.J.S.A., Section 34:6A-35 and -41.)
The New Jersey State plan (pp. 87-90) provides that when an
inspection of an establishment has been made, and the Commissioner of
Labor has issued an order to comply, the employer shall post such order
or a copy thereof at or near each location of the violation cited in
the order so that it is clearly visible to affected employees. The
Commissioner must make such order available to employee
representatives, affected employees and the public. A written citation
(Order to Comply) will be issued, citing the sections of the law,
standards, rules or regulations alleged to be violated, the location of
the violation, the abatement period, posting requirements and will also
include the employer's and employee's right to contest any or all
orders.
Although the State Plan does not provide for first instance
sanctions, it does provide for monetary penalties for failures-to-abate
and willful and repeated violations. The State Act (N.J.S.A., Section
34:6A-41(d)) provides that if the time for compliance with an order has
elapsed, and the employer has not contested and has not made a good
faith effort to comply, the Commissioner of Labor shall impose a civil
administrative penalty of up to $7,000 per day for each violation. In
addition, any employer who willfully or repeatedly violates the
requirements of any standard, rule, order or regulation shall be
assessed a civil administrative penalty of up to $70,000 for each
violation. Penalties may be recovered with costs in a civil action
commenced by the Commissioner by a summary proceeding under the Penalty
Enforcement Law. (N.J.S.2A:58-1 et seq.) The State has given an
assurance that it will adopt appropriate penalty procedures that will
include gravity-based penalties (severity and probability) as well as
penalty adjustment factors (size, history, and good faith) as a part of
its developmental step commitment to adopt amendments to regulations
regarding inspections, citations, and proposed penalties equivalent to
29 CFR 1903 within one year after state plan approval. Specific
regulations and detailed procedures on compliance orders, abatement and
sanctions will be submitted by New Jersey in accordance with its
developmental schedule. (New Jersey State plan, pp. 96-96.)
(h) Contested Cases. A State plan must have authority and
procedures for employer contest of violations alleged by the State,
penalties/sanctions and abatement requirements at full administrative
or judicial hearings. Employees must also have the right to contest
abatement periods and the opportunity to participate as parties in all
proceedings resulting from an employer's contest (29 CFR
1956.11(c)(2)(xi)).
The State Act provides that any employer, employee or employee
representative affected by a determination of the Commissioner of Labor
may file with the Commissioner, within fifteen working days of the
issuance of an order to comply, a notice to contest any provision of
the order. (N.J.S.A. Sections 34:6A-36, 41 and N.J.A.C. 12:110-4.13.)
The Commissioner must immediately advise the Occupational Safety and
Health Review Commission of the notification and the Commission will
afford an opportunity for a hearing. The Review Commission will issue
an order, based on a finding of fact, affirming, modifying, or vacating
the Commissioner's order to comply or the proposed penalty, or
directing other appropriate relief, and the order shall become final 45
days after its issuance. (N.J.S.A. 34:6A-42) N.J.A.C. 12:110,
establishes the opportunity for the Commissioner of Labor to hold an
informal conference. Such a conference would be for the purpose of
discussing any issue raised by an inspection, order to comply, a notice
of proposed penalty, or notice of intention to contest. No such
conference or request for such conference will serve as a stay of any
15 working day period for filing a notice of intention to contest as
prescribed in N.J.A.C. 12:110-4.14. Appeals from decisions of the
Review Commission are to the Appellate Division of the Superior Court.
(N.J.S.A. 34:6A-43)
(i) Enforcement Conclusion. Accordingly, OSHA finds that the
enforcement provisions of the New Jersey State plan as described above
meet or will meet the statutory and regulatory requirements for initial
State plan approval.
6. Staffing and Resources
Section 18(c)(4) of the OSH Act requires State plans to provide the
qualified personnel necessary for the enforcement of standards. In
accordance with 29 CFR 1956.10(g), one factor which OSHA must consider
in considering a plan for initial approval is whether the State has or
will have a sufficient number of adequately trained and competent
personnel to discharge its responsibilities under the plan.
The New Jersey State plan (pp. 150-154) 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. 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 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 (New Jersey State plan, p.156) that it will meet
the staffing requirements of 29 CFR 1956.10.
Section 18(c)(5) of the OSH Act requires that the State plan devote
adequate funds to administration and enforcement of its standards (29
CFR 1956.10(h)). New Jersey has funded its public employee occupational
safety and health program since 1984 solely utilizing State funds. The
State plan will be funded at $5,118,360 ($1,771,000 Federal 50% share;
$1,771,000 State 50% matching share; $1,576,360 100% State funds)
during federal fiscal year 2001.
Accordingly, OSHA finds that the New Jersey State plan has provided
for sufficient, qualified personnel and adequate funding for the
various activities to be carried out under the plan.
7. Records and Reports
State plans must assure that employers in the State submit reports
to the Secretary in the same manner as if the plan were not in effect
(section 18(c)(7)) of the OSH Act). Under a public employee State plan,
public employers must maintain records and
[[Page 2271]]
make reports on occupational injuries and illnesses in a manner similar
to that required of private sector employers under the OSH Act and (29
CFR 1956.10(i)). The plan must also provide assurances that the
designated agency will make such reports to the Secretary in such form
and containing such information as he may from time to time require
(section 18(c)(8) of the OSH Act and 29 CFR 1956.10(j)).
New Jersey has provided assurance in its State plan (pp. 139-144)
that all jurisdictions covered by the State plan will maintain valid
records and make timely reports on occupational injuries and illnesses
as required for private employers under the OSH Act. Specific
regulations on this aspect of the State plan will be submitted by New
Jersey in accord with its developmental schedule in which the State has
agreed to adopt amendments to regulations regarding recordkeeping
equivalent to 29 CFR part 1904 within two years after state plan
approval. Current State recordkeeping regulations, at N.J.A.C. 12:110-
5., infer that employees' names may be considered confidential. As this
conflicts with the Federal requirement at 29 CFR 1904.7 which provides
for full access to the OSHA Log including Column C, ``Employee's
Name,'' for compliance staff, employees, former employees and employee
representatives, the State has provided assurance that it will comply
with Sec. 1904.7 upon plan approval and will amend its regulation
accordingly. (New Jersey State Plan, p. 140)
New Jersey has also provided assurance in its State plan (pp. 144
and 148) that it will continue its participation in the Bureau of Labor
Statistics Annual Survey of Injuries and Illnesses (for the private
sector) and will similarly continue its statistical survey of the
public sector under its approved plan. The New Jersey State plan also
contains assurances that it will provide reports to OSHA in the desired
form and participate in OSHA's Integrated Management Information
System. (New Jersey State plan, pp. 145-148)
OSHA finds that the New Jersey State plan has met the requirements
of section 18(c)(7) and (8) of the OSH Act on employer and State
reports to the Secretary.
8. Voluntary Compliance Program
A State plan must undertake programs to encourage voluntary
compliance by employers by such means as conducting training and
consultation with employers and employees (29 CFR 1956.11(c)(2)(xii)).
The New Jersey State plan (pp.125-130) provides that the State
Labor and Health Departments will include voluntary compliance as an
essential component of its program. Training will be provided to public
employers and employees; seminars will be conducted to familiarize
affected individuals with OSHA standards and requirements, and safe
work practices; and, an on-site consultation program in the public
sector parallel to New Jersey State's existing private sector on-site
consultation program (under section 21(d) of the OSH Act) will be
established. The public employee consultation program will have both
safety and health consultants available to employers who request such
service. All State agencies and political subdivisions will also be
encouraged to develop and maintain self-inspection programs and to
develop internal safety and health programs in accordance with the
State public employee safety and health program guidelines. The State
has committed under its developmental schedule to fully implement
public employer/employee consultation, training and education program
equivalent to 29 CFR part 1908 within three years after state plan
approval.
OSHA finds that the New Jersey State plan provides for the
establishment and administration of an effective voluntary compliance
program.
E. Decision
OSHA, after carefully reviewing the New Jersey State plan for the
development and enforcement of State standards applicable to State and
local government employees and the record developed during the above
described proceedings, has determined that the requirements and
criteria for initial approval of a developmental plan have been met.
The plan is hereby approved as a developmental plan under section 18 of
the Act and 29 CFR part 1956. This decision incorporates the
requirements of the Act and of regulations applicable to State plans
generally.
The initial approval of a State plan for public employees in New
Jersey is not a significant regulatory action as defined in Executive
Order 12866.
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 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. List of Subjects in 29 CFR PART 1956
Intergovernmental relations, Law enforcement, Occupational Safety
and Health, Reporting and recordkeeping requirements.
I. Effective Date January 11, 2001
OSHA's decision granting initial Federal approval to the New Jersey
State plan for public employees only is effective January 11, 2001. The
program described in the plan has been in effect for many years and no
immediate modifications of the program are required by today's
decision. Federal 50% matching funds have been explicitly provided in
the Department of Labor's FY 2001 appropriation. Notice of proposed
initial approval of the plan was published both in the Federal Register
and in several newspapers throughout the State with requests for
comment. No comments opposing initial approval of the plan were
received, and OSHA believes that no
[[Page 2272]]
party is adversely affected by initial approval of the plan. OSHA
therefore finds, pursuant to section 553(d) of the Administrative
Procedures Act, that good cause exists for making Federal approval of
the New Jersey Public Employee Only State plan effective upon
publication in the Federal Register.
J. 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 parts 1902 and 1956, and Secretary of Labor's Order No. 3-
2000 (65 FR 50017).
Signed at Washington, D.C. this 4th of January, 2000.
Charles N. Jeffress,
Assistant Secretary of Labor.
For the reasons set out in the preamble, 29 CFR Part 1956 is hereby
amended by adding a new Subpart G as follows:
Subpart G--New Jersey
Sec.
1956.60 Description of the plan as initially approved.
1956.61 Developmental schedule.
1956.62 Completion of developmental steps and certification.
[Reserved]
1956.63 Determination of operational effectiveness. [Reserved]
1956.64 Location of plan for inspection and copying.
Subpart G--New Jersey
Authority: Section 18 of the OSH Act, (29 U.S.C. 667), 29 CFR
Part 1902, 29 CFR 1956, and Secretary of Labor's Order No. 3-2000
(65 FR 50017).
Sec. 1956.60 Description of the plan as initially approved.
(a) Authority and scope. The New Jersey State Plan for Public
Employee Occupational Safety and Health received initial OSHA approval
on January 11, 2001. The plan designates the New Jersey Department of
Labor as the State agency responsible for administering the plan
throughout the State. The plan includes enabling legislation, Public
Employees Occupational Safety and Health Act of 1995 (N.J.S.A. 34:6A-25
et seq.), enacted in 1984, and amended on July 25, 1995. Under this
legislation, the State Commissioner of Labor has full authority to
enforce and administer all laws and rules protecting the safety and
health of all employees of the State and its political subdivisions
under the Public Employee Occupational Safety and Health program
(PEOSH). The Commissioner of Health and Senior Services has authority
for occupational health matters including the authority to conduct
health inspections, investigations and related activities. However, all
standards adoption and enforcement authority for both occupational
safety and health remain the responsibility of the New Jersey
Department of Labor.
(b) Standards. New Jersey has adopted State standards identical to
OSHA 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 two (2) 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 within six (6) months of Federal promulgation,
in accordance with 29 CFR 1953.21. Any emergency temporary standards
will be adopted within 30 days of Federal adoption. The State will
adopt Federal OSHA standards in accordance with the provisions of New
Jersey statute, N.J.S.A. 52:14B-5; Federal standards shall be deemed to
be duly adopted as State regulations upon publication by the
Commissioner of Labor. The plan also provides for the adoption of
alternative or different occupational safety and health standards by
the Commissioner of Labor in consultation with the Commissioner of
Health and Senior Services, the Commissioner of Community Affairs, and
the Public Employee Occupational Safety and Health Advisory Board,
where no Federal standards are applicable to the conditions or
circumstances or where standards more stringent than the Federal are
deemed advisable.
(c) Variances. The plan includes provisions for the granting of
permanent and temporary variances from State standards in terms
substantially similar to the variance provisions contained in the OSH
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. The State has committed to amend its current
variance procedures at N.J.A.C. 12:110-6 to bring them into conformance
with Federal procedures at 29 CFR Part 1905 within two years after
state plan approval.
(d) Employee notice and discrimination protection. 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 violations. The plan also provides for
protection of employees against discharge or discrimination resulting
from exercise of their rights under the State's Act in terms similar to
section ll(c) of the OSH Act. However, employees have 180 days to file
complaints of discrimination with the Commissioner of Labor; and the
Commissioner is authorized to both investigate and order all
appropriate relief. The monetary penalty for repeated violations (up to
$70,000 per violation) may also be applicable to repeated employer acts
of discrimination.
(e) Inspections and enforcement. The plan provides for inspection
of covered workplaces including inspections in response to employee
complaints, by both the Department of Labor, and by the Department of
Health and Senior Services with regard to health issues. If a
determination is made that an employee complaint does not warrant an
inspection, the complainant shall be notified, in writing, of such
determination and afforded an opportunity to seek informal review of
the determination. The plan also provides the opportunity for employer
and employee representatives to accompany the inspector during an
inspection for the purpose of aiding in the inspection. Employee(s)
accompanying an inspector are entitled to normal wages for the time
spent during the inspection. The plan also provides for right of entry
for inspection and prohibition of advance notice of inspection. The
Commissioner of Labor is responsible for all enforcement actions
including the issuance of citations/Orders to Comply which must also
specify the abatement period, posting requirements and the employer's
and employee's right to contest any or all orders. Although the plan
does not provide for initial (first instance) monetary sanctions, the
Commissioner of Labor has the authority to impose civil administrative
penalties of up to $7,000 per day for each violation, for failure to
abate, if the time for compliance with an order has elapsed, and the
employer has not contested and has not made a good faith effort to
comply. Willful or repeated violations also are subject to civil
administrative penalties of up to $70,000 for each violation. Penalties
may be recovered with costs in a civil
[[Page 2273]]
action brought under the New Jersey Penalty Enforcement Act
(N.J.S.2A.:58-1 et seq.)
(f) Review procedures. Under the plan, employers, employees and
other affected parties may seek informal review with the Department of
Labor relative to a notice of violation/Order to Comply, the
reasonableness of the abatement period, any penalty and/or may seek
formal administrative review with the Occupational Safety and Health
Review Commission, a board appointed by the Governor and authorized
under section 34:6A.42 of the New Jersey Act to hear and rule on
appeals of orders to comply and any penalties proposed. Any employer,
employee or employee representative affected by a determination of the
Commissioner may file a contest within fifteen (15) working days of the
issuance of an order to comply. The Review Commission will issue an
order, based on a finding of fact, affirming, modifying, or vacating
the commissioner's order to comply or the proposed penalty, or
directing other appropriate relief, and the order shall become final 45
days after its issuance. Judicial review of the decision of the Review
Commission may be sought at the Appellate Division of the Superior
Court.
(g) Staffing and Resources. 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. The
State has assured that it will continue to provide a sufficient number
of adequately trained and qualified personnel necessary for the
enforcement of standards as required by 29 CFR 1956.10. The State has
also given satisfactory assurance of adequate funding to support the
plan.
(h) Records and reports. The plan provides that public employers in
New Jersey will maintain appropriate records and make timely reports on
occupational injuries and illnesses in a manner substantially identical
to that required for private sector employers under Federal OSHA. New
Jersey has assured that it will continue its participation in the
Bureau of Labor Statistics Annual Survey of Injuries and Illnesses with
regard to both private and public sector employers. The State will
comply with the provisions of 29 CFR 1904.7 which allows full employee
and employee representative access, including employee's names, to the
log of workplace injuries and illnesses; and will amend its regulations
accordingly. The plan also contains assurances that the Commissioner of
Labor will provide reports to OSHA in such form as the Assistant
Secretary may require, and that New Jersey will participate in OSHA's
Integrated Management Information System.
(i) Voluntary compliance programs. The plan provides that training
will be provided to public employers and employees; seminars will be
conducted to familiarize affected individuals with OSHA standards,
requirements and safe work practices; an on-site consultation program
in the public sector will be established to provide services to public
employers who so desire; and, all State agencies and political
subdivisions will be encouraged to develop and maintain self inspection
programs as well as internal safety and health programs as an adjunct
to but not a substitute for the Commissioner of Labor's enforcement.
Sec. 1956.61 Developmental Schedule.
The New Jersey State plan is developmental. The following is a
schedule of major developmental steps as provided in the plan:
(a) Adopt standards identical to or at least as effective as all
existing OSHA standards within one year after plan approval.
(b) Adopt amendments to regulations regarding inspections,
citations, and proposed penalties equivalent to 29 CFR part 1903 within
one year after plan approval.
(c) Develop a five year strategic plan within two years after plan
approval.
(d) Develop field inspection reference manual and/or field
operations manual within two years after plan approval.
(e) Fully implement public employer/employee consultation, training
and education program equivalent to 29 CFR part 1908 within three years
after plan approval.
(f) Adopt amendments to regulations regarding discrimination
against employees equivalent to 29 CFR part 1977 within two years after
plan approval.
(g) Adopt amendments to regulations regarding variances equivalent
to 29 CFR part 1905 within two years after plan approval.
(h) Adopt amendments to regulations regarding record keeping
equivalent to 29 CFR part 1904 within two years after plan approval.
Sec. 1956.62 Completion of developmental steps and certification.
(Reserved).
Sec. 1956.63 Determination of operational effectiveness. (Reserved).
Sec. 1956.64 Location of plan for inspection and copying.
A copy of the plan may be inspected and copied during normal
business hours at the following locations: Office of State Programs,
U.S. Department of Labor, Occupational Safety and Health
Administration, 200 Constitution Avenue, N.W., Room N-3700, Washington,
D.C. 20210; Office of the Regional Administrator, U.S. Department of
Labor, Occupational Safety and Health Administration, 1201 Varick
Street, Room 670, New York, New York 10014; and 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.
[FR Doc. 01-684 Filed 1-10-01; 8:45 am]
BILLING CODE 4510-26-P