[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: 94-7253]


[[Page Unknown]]

[Federal Register: March 29, 1994]


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DEPARTMENT OF LABOR
29 CFR Part 1952

[Docket No. T-026]

 

Michigan 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 Michigan State plan. 
Michigan's benchmarks were originally established in April 1980 in 
response to the U.S. Court of Appeals decision in AFL-CIO v. Marshall, 
570 F. 2d 1030 (D.C. Cir. 1978). The State of Michigan 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 
Michigan 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-026, 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 Michigan to allocate 141 safety and 225 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. 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 Michigan plan, which was granted initial State plan approval on 
September 24, 1973 (38 FR 2739), is administered by the Michigan 
Department of Labor and the Michigan Department of Public Health. 
Concurrent Federal enforcement jurisdiction was suspended in Michigan 
with the publication of an Operational Status Agreement on March 22, 
1977 (42 FR 15411). The plan was certified as having satisfactorily 
completed all of its developmental commitments on January 16, 1981 (46 
FR 3865).

Proposed Revision of Benchmarks

    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) reviewed, in conjunction with OSHA, 
the compliance staffing benchmarks approved for Michigan in 1980. In 
accordance with the formula and general principles established by the 
joint Federal/State task group for the revision of the 1980 benchmarks, 
Michigan 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 submitted in 
April 1992 and March 1993, of revised staffing benchmarks of 56 safety 
and 45 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 manufacturing 
establishments and the January 1990 Dun and Bradstreet listing of non-
manufacturing establishments in Michigan) 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 7.7 hours on such 
inspections, and each State safety inspector is able to devote 1,305 
hours annually to actual inspection activity based on State personnel 
practices. Establishments have been added to this initial general 
inspection universe based on the State's analysis of past injury and 
inspection experience to identify those employers or groups of 
employers most likely to have hazards that could be eliminated by 
inspection. In addition, inspection resources are allocated to coverage 
of mobile 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 Michigan.
    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 and January 1990 Dun and 
Bradstreet listing of non-manufacturing establishments in Michigan) 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 27.8 hours on such 
inspections, and each health compliance officer is able to devote 1,462 
hours annually to actual inspection activity, based upon State 
personnel practices. Establishments have been added to this initial 
general schedule universe based on the State's knowledge gained from 
inspection experience and other data on the extent of employee exposure 
to and use of toxic substances and harmful physical agents by 
individual employers or groups of employers, and the extent to which 
hazardous exposures can be eliminated by inspection. In addition, 
inspection resources are allocated to coverage of mobile and public 
employee (State and local government) work sites, response to 
complaints and accidents, and follow-up inspections to ascertain 
compliance, based on recent historical experience and an assessment of 
proper health coverage in the State of Michigan.
    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 T, which generally describes the Michigan plan 
and sets forth the State's revised safety and health benchmark levels.

Documents of Record

    A comprehensive document containing the proposed revision to 
Michigan'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-026, U.S. Department of Labor, room N-
2625, 200 Constitution Avenue, NW., Washington, DC 20210.
Regional Administrator--Region V, U.S. Department of Labor--OSHA, 
room 3244, 230 South Dearborn Street, Chicago, Illinois 60604.
Michigan Department of Labor, Victor Office Center, 201 North 
Washington Square, Lansing, Michigan 48933.
Michigan Department of Public Health, 3423 North Logan Street, 
Lansing, Michigan 48909.

    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-026, 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 Michigan 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 
Michigan 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-026, U.S. Department 
of Labor, room N-2625, 200 Constitution Avenue, NW., Washington, DC 
20210. Written submissions must be directed to the specific benchmarks 
proposed for Michigan 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,
Secretary of Labor.
[FR Doc. 94-7253 Filed 3-28-94; 8:45 am]
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