[Federal Register Volume 59, Number 60 (Tuesday, March 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7252]


[[Page Unknown]]

[Federal Register: March 29, 1994]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

[Docket No. T-028]

 

California 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.

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SUMMARY: This document gives notice of the proposed revision of 
compliance staffing benchmarks applicable to the California State plan. 
California's benchmarks were originally established in April 1980 in 
response to the U.S. Court of Appeals decision in AFL-CLO v. Marshall, 
570 F. 2d 1030 (D.C. Cir. 1978). The State of California has 
reconsidered the information utilized in the development of its 1980 
benchmarks and determined that changes in local conditions and improved 
inspection data warrant revision of its benchmarks. OSHA is soliciting 
written public comments to afford interested persons an opportunity to 
present their views regarding whether or not the revised benchmarks for 
California should be approved.

DATES: Written comments must be received by May 3, 1994.

ADDRESSES: Written comments should be submitted, in quadruplicate, to 
the Docket Officer, Docket No. T-028, U.S. Department of Labor, room N-
2625, 200 Constitution Avenue NW., Washington, DC 20210, (202) 219-
7894.

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 California to allocate 
334 safety and 471 health compliance personnel to conduct inspections 
under the plan.
    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. 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.
    The California plan, which was granted initial State plan approval 
on May 1, 1973 (38 FR 10717), is administered by the California 
Department of Industrial Relations. Concurrent Federal enforcement 
jurisdiction was suspended in California with the publication of an 
Operational Status Agreement on January 13, 1976 (41 FR 1904). The plan 
was certified as having satisfactorily completed all of its 
developmental commitments on August 19, 1977 (42 FR 161).

Proposed Revision of Benchmarks

    In June 1993, the California Department of Industrial Relations 
(the designated agency or ``designee'' in the State) completed, in 
conjunction with OSHA, a review of the compliance staffing benchmarks 
approved for California in 1980. In accord with the formula and general 
principles established by the joint Federal/State task group for the 
revision of the 1980 benchmarks, California 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 
118 safety and 80 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 
utilizing the July 1991 Dun and Bradstreet listing of manufacturers for 
California) 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). Data indicate that the State 
is spending an average of 14 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. 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 upon recent historical experience and an assessment 
of proper safety coverage in the State of California.
    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 July 1991 Dun and Bradstreet 
listing of manufacturing establishments for California) in the 150 
Standard Industrial Classifications (SICs) in the State having the 
highest likelihood of exposure to 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 30.5 hours on such 
inspections, and each health compliance officer is able to devote 1,440 
hours annually to actual inspection activity, based upon State 
personnel practices. 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 
California.
    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 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 
be eligible for final approval under section 18(e) of the Act. Approval 
of the revised benchmarks would be accompanied by an amendment to 29 
CFR part 1952, subpart DD, which generally describes the California 
plan and sets forth the State's revised safety and health benchmark 
levels. Attainment of the 1980 benchmark levels or subsequent revision 
thereto is a prerequisite for final State plan approval consideration 
under section 18(e) of the Act.

Documents of Record

    A comprehensive document containing the proposed revision to 
California'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-028, U.S. Department of Labor, Room N-
2625, 200 Constitution Avenue, NW., Washington, DC 20210.
Regional Administrator--Region IX, U.S. Department of Labor--OSHA, 
71 Stevenson Street, San Francisco, California 94105.
California Department of Industrial Relations, 455 Golden Gate 
Avenue, 4th Floor, San Francisco, California 94102.

    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. Marshall, the 1978 implementing Court Order, the 
1980 Report to the Court, and a report describing the 1983-1984 
benchmark revision process. It is also available for public inspection 
and copying at the following location:

Docket Office, Docket No. T-018, U.S. Department of Labor, room N-
2625, 200 Constitution Avenue, NW., Washington, DC 20210.

Public Participation

    OSHA is soliciting public participation in its consideration of the 
approval of the revised California 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 California in accordance with the Court Order in AFL-CIO v. 
Marshall. Comments must be received on or before May 3, 1994, and be 
submitted in quadruplicate to the Docket Office, Docket No. T-028, U.S. 
Department of Labor, room N-2625, 200 Constitution Avenue, NW., 
Washington, DC 20210. Written submission must be directed to the 
specific benchmarks proposed for California 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. 9-83 (43 FR 35736))

    Signed at Washington, DC, this 18th day of March 1994.
Joseph A. Dear,
Assistant Secretary of Labor.
[FR Doc. 94-7252 Filed 3-28-94; 8:45 am]
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