[Federal Register Volume 60, Number 79 (Tuesday, April 25, 1995)]
[Rules and Regulations]
[Pages 20191-20193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10138]



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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

[Docket No. T-026]


Michigan 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 Michigan State plan.

EFFECTIVE DATE: April 25, 1995.

FOR FURTHER INFORMATION CONTACT:
Richard Liblong, 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, D.C. 
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 be 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 [[Page 20192]] 
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 Michigan 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 
1992, Michigan 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 Michigan to allocate 141 safety compliance 
officers and 225 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, Michigan reassessed 
the compliance staffing necessary for a ``fully effective'' 
occupational safety and health program in the State.
    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) completed, in conjunction with OSHA, a 
review of the compliance staffing benchmarks approved for Michigan in 
1980. This reassessment resulted in a proposal to OSHA of revised 
compliance staffing benchmarks of 56 safety and 45 health compliance 
officers for the State of Michigan.

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 Michigan (59 FR 
14586). A detailed description of the methodology and State-specific 
information used to develop the revised compliance staffing levels for 
Michigan 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 Michigan's proposed revised 
benchmarks (Docket No. T-026). An informational record was established 
in a separate docket (Docket No. T-018) and contains 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 Michigan's complete record was maintained 
in the OSHA Docket Office in Washington, DC. Copies of Michigan's 
record were also maintained in the OSHA Region V Office in Chicago, 
Illinois, and in the offices of the Michigan Department of Labor and 
the Michigan Department of Public Health in Lansing, Michigan.
    The March 29 proposal invited interested parties to submit, by May 
3, 1994, written comments and views regarding whether Michigan's 
proposed revised compliance staffing benchmark levels should be 
approved. One comment was received regarding Michigan's proposed 
benchmarks.

Summary and Evaluation of Comments Received

    In response to the March 29 Federal Register notice for Michigan, 
OSHA received one comment from Paul M. Schubert of Akron, Ohio (Exhibit 
4-1). Douglas J. Kalinowski, Chief of the Michigan Division of 
Occupational Health, responded to the public comment (Exhibit 4-2).
    Mr. Schubert commented that he had been a health compliance officer 
with the Michigan Department of Public Health from 1975 through 1981, 
and that it was his opinion, based on his experience as a compliance 
officer, that the complexity of many of the health compliance 
inspections would require more than the State's historical average of 
27.8 hours per health compliance inspection. Mr. Schubert also noted 
that during one of his years as a compliance officer his inspections 
had averaged 210 hours per inspection.
    In his response, Mr. Kalinowski noted that the annual number of 
hours available for compliance activity per Michigan health compliance 
officer is 1,462 hours. If each health inspection required an average 
of 210 hours, fewer than seven inspections would be conducted per 
compliance officer. According to Mr. Kalinowski, 31.5 health inspectors 
conducted a total of 1,766 health inspections in 1980, with an average 
of 56 inspections per health inspector and an average of 26 hours per 
inspection. In its 1992 submission proposing revised compliance 
staffing benchmarks, Michigan utilized actual inspection activity data 
for Fiscal Years 1990 and 1991 to determine that the average health 
inspection required approximately 27.8 hours. Michigan's data was 
comparable to the national average number of hours per health 
inspection for all 18(b) State plans of 24 in Fiscal Year 1990 and 25 
in Fiscal Year 1991. It is OSHA's determination that the State's use of 
the average of 27.8 hours per health inspection is reasonable and 
acceptable.

Decision

    OSHA has carefully reviewed the record developed during the above 
described proceedings. In light of all the facts presented on the 
record, including all comments received thereon, the Assistant 
Secretary has determined that the revised compliance staffing levels 
proposed for Michigan meet the requirements of the 1978 Court Order in 
AFL-CIO v. Marshall in providing the number of safety and health 
compliance officers for a ``fully effective'' enforcement program. 
Therefore, the revised compliance staffing levels of 56 safety and 45 
health for Michigan are approved.

Effect of Decision

    The approval of the revised staffing levels for Michigan, 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 Michigan. 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 T to reflect the approval of 
Michigan's revised compliance staffing benchmarks, as well as to 
reflect minor editorial modifications to the structure of the 
Subpart. [[Page 20193]] 
    A new Sec. 1952.393, Compliance staffing benchmarks, has been added 
to Subpart T to reflect the approval of the revised benchmarks for 
Michigan.
    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. 1952.260 to clearly identify the initial plan 
approval of Michigan. The addresses of locations where the Michigan 
plan may be inspected have been updated and are found at Sec. 1952.266.

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 Michigan 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. 1-90 (55 FR 9033))

    Signed at Washington, DC, this 20th day of April 1995.
Joseph A. Dear,
Assistant Secretary of Labor.

PART 1952--[AMENDED]

    Accordingly, Subpart T of 29 CFR Part 1952 is amended to read as 
follows:

Subpart T--Michigan

    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 9033).

    2. Section 1952.260 is amended by revising the heading to read:


Sec. 1952.260  Description of the plan as initially approved.


Sec. 1952.265  [Redesignated as Sec. 1952.267]


Sec. 1952.262  [Redesignated as Sec. 1952.265]

    3. Section 1952.265 is redesignated as Sec. 1952.267, and 
Sec. 1952.262 is redesignated as Sec. 1952.265.


Sec. 1952.264  [Redesignated as Sec. 1952.262]

    4. Section 1952.264 is redesignated as Sec. 1952.262, and is 
amended by revising the heading to read:


Sec. 1952.262  Completion of developmental steps and certification.


Sec. 1952.264  [Reserved]

    5. A new Sec. 1952.264 is added and reserved.


Sec. 1952.261  [Redesignated as Sec. 1952.266]

    6. Section 1952.261 is redesignated as Sec. 1952.266 and revised to 
read as follows:


Sec. 1952.266  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, Third Street and Constitution 
Avenue, N.W., Room N3700, Washington, D.C. 20210; Regional 
Administrator, Occupational Safety and Health Administration, U.S. 
Department of Labor, Room 3244, 230 South Dearborn Street, Chicago, 
Illinois 60604; Michigan Department of Labor, Victor Office Center, 201 
North Washington Square, Lansing, Michigan 48933; and Michigan 
Department of Public Health, 3423 North Logan Street, Lansing, Michigan 
48909


Sec. 1952.261  [Redesignated from Sec. 1952.263]

    7. Section 1952.263 is redesignated as Sec. 1952.261 and a new 
Sec. 1952.263 is added to read as follows:


Sec. 1952.263  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 1992, Michigan completed, in conjunction 
with OSHA, a reassessment of the levels initially established in 1980 
and proposed revised benchmarks of 56 safety and 45 health compliance 
officers. After opportunity for public comment and service on the AFL-
CIO, the Assistant Secretary approved these revised staffing 
requirements on April 20, 1995.
    8. Newly designated Sec. 1952.261 is amended by revising the 
heading to read:


Sec. 1952.261  Developmental schedule.


Sec. 1952.261  [Amended]

    9. Newly designated Sec. 1952.261(i) is further redesignated as 
Sec. 1952.262(i).

[FR Doc. 95-10138 Filed 4-24-95; 8:45 am]
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