[Federal Register Volume 60, Number 79 (Tuesday, April 25, 1995)]
[Rules and Regulations]
[Pages 20191-20193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10138]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1952
[Docket No. T-026]
Michigan State Plan: Approval of Revised Compliance Staffing
Benchmarks
AGENCY: Department of Labor, Occupational Safety and Health
Administration (OSHA).
ACTION: Final Rule: approval of revised State compliance staffing
benchmarks.
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SUMMARY: This document amends agency regulations to reflect the
Assistant Secretary's decision to approve revised compliance staffing
benchmarks for the Michigan State plan.
EFFECTIVE DATE: April 25, 1995.
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, D.C.
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 be so by submitting, and obtaining Federal
approval of, a State plan. Section 18(c) of the Act sets forth the
statutory criteria for plan approval, 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 resultant
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 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 Michigan to allocate 141 safety and 225 health
compliance personnel to conduct inspections under the plan. Attainment
of the 1980 benchmark levels or subsequent [[Page 20192]]
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 contemplate subsequent revisions to the benchmarks in light
of more current data, including State-specific information, and other
relevant considerations. In August 1983 OSHA, together with State plan
representatives, initiated a comprehensive review and revision of the
1980 benchmarks. The State of Michigan participated in this benchmark
revision process, which resulted in a methodology whereby a State could
submit data that would justify revision of its 1980 benchmarks. In
1992, Michigan proposed to the Assistant Secretary revised compliance
staffing levels for a ``fully effective'' program responsive to the
occupational safety and health needs of the State. (A complete
discussion of both the 1980 benchmarks and the present revision system
process is set forth in the January 16, 1985 Federal Register (50 FR
2491) regarding the Wyoming occupational safety and health plan.)
Proposed Revision of Benchmarks
In 1980, OSHA submitted a report to the Court containing the
benchmarks and requiring Michigan to allocate 141 safety compliance
officers and 225 industrial hygienists. Pursuant to the initiative
begun in August 1983 by the State plan designees as a group, and in
accord with the formula and general principles established by that
group for individual State revision of benchmarks, Michigan reassessed
the compliance staffing necessary for a ``fully effective''
occupational safety and health program in the State.
In 1992, the Michigan Department of Labor (the designated agency or
``designee'' for safety enforcement in the State) and the Michigan
Department of Public Health (the designated agency or ``designee'' for
health enforcement in the State) completed, in conjunction with OSHA, a
review of the compliance staffing benchmarks approved for Michigan in
1980. This reassessment resulted in a proposal to OSHA of revised
compliance staffing benchmarks of 56 safety and 45 health compliance
officers for the State of Michigan.
History of the Present Proceedings
On March 29, 1994, the Occupational Safety and Health
Administration published notice in the Federal Register of its proposal
to approve revised compliance staffing benchmarks for Michigan (59 FR
14586). A detailed description of the methodology and State-specific
information used to develop the revised compliance staffing levels for
Michigan was included in the notice. In addition, OSHA submitted, as a
part of the record, detailed submissions containing both narrative
explanation and supporting data for Michigan's proposed revised
benchmarks (Docket No. T-026). An informational record was established
in a separate docket (Docket No. T-018) and contains background
information relevant to the benchmark issue and the current benchmark
revision process.
To assist and encourage public participation in the benchmark
revision process, a copy of Michigan's complete record was maintained
in the OSHA Docket Office in Washington, DC. Copies of Michigan's
record were also maintained in the OSHA Region V Office in Chicago,
Illinois, and in the offices of the Michigan Department of Labor and
the Michigan Department of Public Health in Lansing, Michigan.
The March 29 proposal invited interested parties to submit, by May
3, 1994, written comments and views regarding whether Michigan's
proposed revised compliance staffing benchmark levels should be
approved. One comment was received regarding Michigan's proposed
benchmarks.
Summary and Evaluation of Comments Received
In response to the March 29 Federal Register notice for Michigan,
OSHA received one comment from Paul M. Schubert of Akron, Ohio (Exhibit
4-1). Douglas J. Kalinowski, Chief of the Michigan Division of
Occupational Health, responded to the public comment (Exhibit 4-2).
Mr. Schubert commented that he had been a health compliance officer
with the Michigan Department of Public Health from 1975 through 1981,
and that it was his opinion, based on his experience as a compliance
officer, that the complexity of many of the health compliance
inspections would require more than the State's historical average of
27.8 hours per health compliance inspection. Mr. Schubert also noted
that during one of his years as a compliance officer his inspections
had averaged 210 hours per inspection.
In his response, Mr. Kalinowski noted that the annual number of
hours available for compliance activity per Michigan health compliance
officer is 1,462 hours. If each health inspection required an average
of 210 hours, fewer than seven inspections would be conducted per
compliance officer. According to Mr. Kalinowski, 31.5 health inspectors
conducted a total of 1,766 health inspections in 1980, with an average
of 56 inspections per health inspector and an average of 26 hours per
inspection. In its 1992 submission proposing revised compliance
staffing benchmarks, Michigan utilized actual inspection activity data
for Fiscal Years 1990 and 1991 to determine that the average health
inspection required approximately 27.8 hours. Michigan's data was
comparable to the national average number of hours per health
inspection for all 18(b) State plans of 24 in Fiscal Year 1990 and 25
in Fiscal Year 1991. It is OSHA's determination that the State's use of
the average of 27.8 hours per health inspection is reasonable and
acceptable.
Decision
OSHA has carefully reviewed the record developed during the above
described proceedings. In light of all the facts presented on the
record, including all comments received thereon, the Assistant
Secretary has determined that the revised compliance staffing levels
proposed for Michigan meet the requirements of the 1978 Court Order in
AFL-CIO v. Marshall in providing the number of safety and health
compliance officers for a ``fully effective'' enforcement program.
Therefore, the revised compliance staffing levels of 56 safety and 45
health for Michigan are approved.
Effect of Decision
The approval of the revised staffing levels for Michigan, set forth
elsewhere in this notice, establishes the requirement for a sufficient
number of adequately trained and qualified compliance personnel as set
forth in Section 18(c) of the Act and 29 CFR 1902.37(b)(1). These
benchmarks are established pursuant to the 1978 Court Order in AFL-CIO
v. Marshall and define the compliance staffing levels necessary for a
``fully effective'' program in Michigan. The allocation of sufficient
staffing to meet the benchmarks is one of the conditions necessary for
States to receive an 18(e) determination (final State plan approval)
with its resultant relinquishment of concurrent Federal enforcement
jurisdiction.
Explanation of Changes to 29 CFR Part 1952
29 CFR 1952 contains, for each State having an approved
occupational safety and health plan, a subpart generally describing the
plan and setting forth the Federal approval status of the plan. This
notice makes several changes to Subpart T to reflect the approval of
Michigan's revised compliance staffing benchmarks, as well as to
reflect minor editorial modifications to the structure of the
Subpart. [[Page 20193]]
A new Sec. 1952.393, Compliance staffing benchmarks, has been added
to Subpart T to reflect the approval of the revised benchmarks for
Michigan.
While most of the existing subparts have been retained, paragraphs
within the subpart have been rearranged and renumbered so that the
major steps in the development of the plan (initial approval,
developmental steps and certification of completion of developmental
steps) are set forth in chronological order.
Related editorial changes to the subparts include modification of
the heading of Sec. 1952.260 to clearly identify the initial plan
approval of Michigan. The addresses of locations where the Michigan
plan may be inspected have been updated and are found at Sec. 1952.266.
Regulatory Flexibility Act
OSHA certifies, pursuant to the Regulatory Act of 1980 (5 U.S.C.
601, et seq.), that this rulemaking will not have significant economic
impact on a substantial number of small entities. Approval of the
revised compliance staffing benchmarks for Michigan will not place
small employers in the State under any new or different requirements
nor would any additional burden be placed upon the State government
beyond the responsibilities already assumed as part of the approved
plan.
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 20th day of April 1995.
Joseph A. Dear,
Assistant Secretary of Labor.
PART 1952--[AMENDED]
Accordingly, Subpart T of 29 CFR Part 1952 is amended to read as
follows:
Subpart T--Michigan
1. The authority citation for Part 1952 continues to read:
Authority: 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).
2. Section 1952.260 is amended by revising the heading to read:
Sec. 1952.260 Description of the plan as initially approved.
Sec. 1952.265 [Redesignated as Sec. 1952.267]
Sec. 1952.262 [Redesignated as Sec. 1952.265]
3. Section 1952.265 is redesignated as Sec. 1952.267, and
Sec. 1952.262 is redesignated as Sec. 1952.265.
Sec. 1952.264 [Redesignated as Sec. 1952.262]
4. Section 1952.264 is redesignated as Sec. 1952.262, and is
amended by revising the heading to read:
Sec. 1952.262 Completion of developmental steps and certification.
Sec. 1952.264 [Reserved]
5. A new Sec. 1952.264 is added and reserved.
Sec. 1952.261 [Redesignated as Sec. 1952.266]
6. Section 1952.261 is redesignated as Sec. 1952.266 and revised to
read as follows:
Sec. 1952.266 Where the plan may be inspected
A copy of the principal documents comprising the plan may be
inspected and copied during normal business hours at the following
locations: Office of State Programs, Occupational Safety and Health
Administration, U.S. Department of Labor, Third Street and Constitution
Avenue, N.W., Room N3700, Washington, D.C. 20210; Regional
Administrator, Occupational Safety and Health Administration, U.S.
Department of Labor, Room 3244, 230 South Dearborn Street, Chicago,
Illinois 60604; Michigan Department of Labor, Victor Office Center, 201
North Washington Square, Lansing, Michigan 48933; and Michigan
Department of Public Health, 3423 North Logan Street, Lansing, Michigan
48909
Sec. 1952.261 [Redesignated from Sec. 1952.263]
7. Section 1952.263 is redesignated as Sec. 1952.261 and a new
Sec. 1952.263 is added to read as follows:
Sec. 1952.263 Compliance staffing benchmarks.
Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (``benchmarks'') necessary for a ``fully
effective'' enforcement program were required for each State operating
an approved State plan. In 1992, Michigan completed, in conjunction
with OSHA, a reassessment of the levels initially established in 1980
and proposed revised benchmarks of 56 safety and 45 health compliance
officers. After opportunity for public comment and service on the AFL-
CIO, the Assistant Secretary approved these revised staffing
requirements on April 20, 1995.
8. Newly designated Sec. 1952.261 is amended by revising the
heading to read:
Sec. 1952.261 Developmental schedule.
Sec. 1952.261 [Amended]
9. Newly designated Sec. 1952.261(i) is further redesignated as
Sec. 1952.262(i).
[FR Doc. 95-10138 Filed 4-24-95; 8:45 am]
BILLING CODE 4510-26-M
