[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]
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