[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: 94-7255]


[[Page Unknown]]

[Federal Register: March 29, 1994]


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DEPARTMENT OF LABOR
29 CFR Part 1952

[Docket No. T-027]

 

Oregon 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 health 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 Oregon State plan. 
Oregon'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 Oregon 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 health compliance staffing 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 Oregon 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-027, 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 Oregon to allocate 47 
safety and 60 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 Oregon plan, which was granted initial State plan approval on 
December 28, 1972 (37 FR 28628), is administered by the Occupational 
Safety and Health Division of the Oregon Department of Consumer and 
Business Services. Concurrent Federal enforcement jurisdiction was 
suspended in Oregon with the publication of an Operational Status 
Agreement on April 28, 1975 (40 FR 18427). The plan was certified as 
having satisfactorily completed all of its developmental commitments on 
September 24, 1982 (47 FR 42105).

Proposed Revision of Benchmarks

    In October 1992, the Oregon Occupational Safety and Health Division 
(the designated agency or ``designee'' in the State) completed, in 
conjunction with OSHA, a review of the Health compliance staffing 
benchmarks approved for Oregon 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, Oregon 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 health staffing 
benchmarks of 28 health compliance officers. The State determined that 
there was no compelling reason to revise the existing 1980 safety 
benchmark level of 47 safety compliance officers.
    The proposed revised health benchmark contemplated 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 1981 Unemployment Insurance 
Listing of Employers for Oregon) 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 33.4 hours on such inspections, and each health 
compliance officer is able to devote 1,525 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 exposure 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 Oregon.
    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 D, which generally describes the Oregon plan and 
sets forth the State's safety and health benchmark levels. Attainment 
of the 1980 benchmark levels of subsequent revision thereto is a 
prerequisite for State plan final approval consideration under section 
18(e) of the Act.

Documents of Record

    A comprehensive document containing the proposed revision to 
Oregon'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-027, U.S. Department of Labor, room N-
2625, 200 Constitution Avenue, NW., Washington, DC. 20210.
Regional Administrator--Region X, U.S. Department of Labor--OSHA, 
suite 715, 1111 Third Avenue, Seattle, Washington 98101-3212.
Oregon Occupational Safety and Health Division, room 430, Labor and 
Industries Building, 350 Winter Street NE, Salem, Oregon 97310.

    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 Oregon 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 
Oregon 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-027, U.S. Department 
of Labor, room N-2625, 200 Constitution Avenue NW., Washington, DC 
20210. Written submissions must be directed to the specific health 
staffing benchmarks proposed for Oregon 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. 94-7255 Filed 3-28-94; 8:45 am]
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