[Federal Register Volume 59, Number 159 (Thursday, August 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20142]
[[Page Unknown]]
[Federal Register: August 18, 1994]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1952
[Docket No. T-027]
Oregon 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 Oregon State plan.
EFFECTIVE DATE: August 18, 1994.
FOR FURTHER INFORMATION CONTACT:
James Foster, 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) 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 Oregon to allocate 47 safety and 60 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 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 Oregon 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
October 1992, Oregon 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 Oregon to allocate 47 safety compliance
officers and 60 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, Oregon reassessed the
compliance staffing necessary for a ``fully effective'' occupational
safety and health program in the State.
In October 1992, the Occupational Safety and Health Division of the
Oregon Department of Consumer and Business Services (the designated
agency or ``designee'' in the State) completed, in conjunction with
OSHA, a review of the compliance staffing benchmarks approved for
Oregon in 1980. This reassessment resulted in a proposal to OSHA of a
revised health compliance staffing benchmark of 28 health compliance
officers for the State of Oregon. The State determined that there was
no compelling reason to revise the existing 1980 safety benchmark of 47
safety compliance officers.
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 Oregon (59 FR
14589). A detailed description of the methodology and State-specific
information used to develop the revised compliance staffing levels for
Oregon 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 Oregon's proposed revised
benchmarks (Docket No. T-027). A summary of the benchmark revision
process is set forth in the January 16, 1985 Federal Register notice
concerning the Wyoming State plan (50 FR 2491). An informational record
was established in a separate docket (Docket No. T-018) and contained
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 Oregon's complete record was maintained in
the OSHA Docket Office in Washington, DC. Copies of Oregon's record
were also maintained in the OSHA Region X Office in Seattle,
Washington, and in the Office of the Oregon Department of Consumer and
Business Services, Occupational Safety and Health Division, in Salem,
Oregon.
The March 29 proposal invited interested parties to submit, by May
3, 1994, written comments and views regarding whether Oregon's proposed
revised compliance staffing benchmark levels should be approved. No
comments were received regarding Oregon's proposed benchmarks.
Decision
OSHA has carefully reviewed the record developed during the above
described proceedings. In light of all the facts presented on the
record, including the absence of any objections from interested
parties, the Assistant Secretary has determined that the revised health
compliance staffing level proposed for Oregon meet the requirements of
the 1978 Court Order in AFL-CIO v. Marshall in providing the number of
health compliance officers for a ``fully effective'' enforcement
program. Therefore, the revised health benchmark staffing level of 28
health compliance officers for Oregon is approved, and the safety
benchmark staffing level of 47 safety compliance officers which was
established in the 1980 Report to the Court to the U.S. District Court
for the District of Columbia will remain unchanged.
Effect of Decision
The approval of the revised staffing levels for Oregon, 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 Oregon. 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 D to reflect the approval of
Oregon's revised compliance staffing benchmarks, as well as to reflect
minor editorial modifications to the structure of the Subpart.
A new Sec. 1952.393, Compliance staffing benchmarks, has been added
to Subpart D to reflect the approval of the revised benchmarks for
Oregon.
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. 1952.100 to clearly identify the initial plan
approval of Oregon. The addresses of locations where the Oregon plan
may be inspected have been updated and are found at Sec. 1952.106.
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 Oregon 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. 9-83 (43 FR 35736))
Signed at Washington, D.C., this 11th day of August, 1994.
Joseph A. Dear,
Assistant Secretary of Labor.
PART 1952--[AMENDED]
Accordingly, Subpart D of 29 CFR Part 1952 is amended as follows:
Subpart D--Oregon
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 19033).
2. Section 1952.100 is amended by revising the heading to read:
Sec. 1952.100 Description of the plan as initially approved.
Sec. 1952.105 [Redesignated as Sec. 1952.107]
Sec. 1952.102 [Redesignated as Sec. 1952.105]
3. Section 1952.105 is redesignated as Sec. 1952.107 and Section
1952.102 is redesignated as Sec. 1952.105.
Sec. 1952.102 [Redesignated from Sec. 1952.104]
Sec. 1952.104 [Reserved]
4. Section 1952.104 (``Completion of developmental steps and
certification'') is redesignated as Sec. 1952.102, and a new
Sec. 1952.104 is added and reserved.
Sec. 1952.101 [Redesignated as Sec. 1952.106]
5. Section 1952.101 is redesignated as Sec. 1952.106 and revised to
read as follows:
Sec. 1952.106 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, Room N3700, 200 Constitution
Avenue, N.W., Washington, D.C. 20210; Office of the Regional
Administrator, Occupational Safety and Health Administration, U.S.
Department of Labor, Suite 715, 1111 Third Avenue, Seattle, Washington
98101-3212; and Oregon Occupational Safety and Health Division,
Department of Consumer and Business Services, Room 430, Labor and
Industries Building, 350 Winter Street NE, Salem, Oregon 97310.
Sec. 1952.101 [Redesignated from Sec. 1952.103]
6. Section 1952.103 is redesignated as Sec. 1952.101 and a new
Sec. 1952.103 is added to read as follows:
Sec. 1952.103 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 October 1992, Oregon completed, in
conjunction with OSHA, a reassessment of the health staffing level
initially established in 1980 and proposed a revised health benchmark
of 28 health compliance officers. Oregon elected to retain the safety
benchmark level established in the 1980 Report to the Court of the U.S.
District Court for the District of Columbia in 1980 of 47 safety
compliance officers. After opportunity for public comment and service
on the AFL-CIO, the Assistant Secretary approved these revised staffing
requirements on August 11, 1994.
[FR Doc. 94-20142 Filed 8-17-94; 8:45 am]
BILLING CODE 4510-25-M
