[Federal Register Volume 69, Number 75 (Monday, April 19, 2004)]
[Rules and Regulations]
[Pages 20828-20829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8779]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952


Washington State Plan; Approval of Plan Supplement; Level of 
Federal Enforcement

AGENCY: Occupational Safety and Health Administration, Department of 
Labor.

ACTION: Final rule.

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SUMMARY: This document gives notice of OSHA's approval of a change to 
the State of Washington's occupational safety and health state plan 
excluding coverage of establishments where the employer is either a 
federally recognized Indian Tribe or an enrolled member of a federally 
recognized Indian Tribe, and the establishment is located within the 
borders of an Indian reservation in the State, or on lands outside 
these reservations that are held in trust by the federal government for 
these Tribes. This extends a State plan exclusion previously 
established for establishments of the Yakama Indian Nation and Colville 
Confederated Tribes to all other recognized Tribes and their members. 
Accordingly, federal OSHA will exercise enforcement authority over such 
establishments in the State of Washington. The State retains 
jurisdiction over non-member private sector and State and local 
government employers located within the reservations or on Trust lands, 
and member employers located outside the reservations or Trust lands. 
OSHA is amending its description of the State plan to reflect this 
change in the level of federal enforcement in the State.

EFFECTIVE DATE:  April 19, 2004.

FOR FURTHER INFORMATION CONTACT: Paula O. White, Director, Cooperative 
and State Programs, Occupational Safety and Health Administration, U.S. 
Department of Labor, Room N3700, 200 Constitution Avenue NW., 
Washington, DC 20210, Telephone: (202) 693-2200.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 18 of the Occupational Safety and Health Act of 1970 (the 
Act), 29 U.S.C. 667, provides that states which wish to assume 
responsibility for developing and enforcing their own occupational 
safety and health standards may do so by submitting, and obtaining 
federal approval of, a state plan. State plan approval occurs in stages 
which include initial approval under section 18(c) of the Act and, 
ultimately, final approval under section 18(e). In the interim, between 
initial approval and final approval, there is a period of concurrent 
federal/state jurisdiction within a state operating an approved plan.
    On January 26, 1973, OSHA published notice in the Federal Register 
(38 FR 2421) announcing the approval of the Washington state plan, as 
administered by the Washington Department of Labor and Industries, and 
the adoption of subpart F to 29 CFR part 1952 containing the decision 
and describing the state plan. On May 30, 1975, OSHA and the State of 
Washington entered into an operational status agreement which suspended 
the exercise of concurrent federal enforcement authority in all except 
specifically identified areas. OSHA and the State of Washington have 
subsequently amended this operational status agreement on several 
occasions. The pertinent provisions concerning the level of federal 
occupational safety and health enforcement in the State appear at 29 
CFR 1952.122.
    In April, 1987 and November, 1989 the State of Washington amended 
its plan to exclude coverage of establishments of the Yakama Indian 
Nation and the Colville Confederated Tribes. OSHA announced approval of 
these changes and assumption of federal enforcement responsibility for 
Indian or Tribally owned facilities within the Yakama and Colville 
reservations on March 30, 1990 (55 FR 11906) and September 12, 1990 (55 
FR 37465), respectively.
    The decision by the State of Washington to exclude coverage of 
member and Tribal employers of all federally recognized Indian Tribes 
from its state plan follows a refusal by another Tribe, the Makah 
Indian Tribe, to allow State entry to conduct a discrimination 
investigation and a safety and health complaint inspection. Based on 
this and similar denials of entry and questions as to the State's legal 
authority to regulate Indian-owned or Tribal workplaces, the State 
subsequently requested that OSHA assume jurisdiction over 
establishments operated by member and Tribal employers of all federally 
recognized Indian Tribes within the borders of Indian reservations or 
on lands held in Trust for the various Tribes in Washington State. 
Accordingly, these establishments are deemed to be an issue no longer 
covered by the Washington state plan. OSHA and the State of Washington 
signed an addendum to their operational status agreement on August 31, 
2000. That addendum, which was effective upon signature, relinquishes 
State jurisdictional and enforcement authority and responsibility for 
all occupational safety and health matters at establishments of 
employers who are either federally recognized Indian Tribes or enrolled 
members of these Tribes, where such employers' establishments are 
located within the borders of Indian reservations in the State, or on 
lands outside these reservations that are held in trust by the federal 
government for these Tribes. Accordingly, federal OSHA is assuming 
jurisdiction and enforcement authority

[[Page 20829]]

for these establishments. Non-member private sector or State and local 
government employers whose establishments are located within the 
borders of Indian reservations or Trust lands and member employers 
located outside the territorial borders of Indian reservations or Trust 
lands remain under State plan jurisdiction. This addendum expands upon 
and supersedes the March 30, 1987 addendum addressing the Yakama Indian 
Nation and is compatible with the November 17, 1989 agreement with the 
Colville Confederated Tribes.

B. Location of Supplement for Inspection and Copying

    A copy of the addendum to the operational status agreement and 
related correspondence may be obtained from: Office of State Programs, 
Directorate of Cooperative and State Programs, Occupational Safety and 
Health Administration, Room N3700, 200 Constitution Avenue, NW., 
Washington, DC 20210, (202) 693-2244, fax (202) 693-1671; Office of the 
Regional Administrator, Occupational Safety and Health Administration, 
1111 Third Avenue, Suite 715, Seattle, Washington, 98101-3212, (206) 
553-5930, fax (206) 553-6499; and the State of Washington, Department 
of Labor and Industries, 7273 Linderson Avenue SW., Tumwater, 
Washington 98504-4600, (360) 902-5430, fax (360) 902-5529. Other 
information about the Washington state plan is posted on the State's 
Web site at http://www.lni.wa.gov/wisha. For an electronic copy of this 
Federal Register notice, see OSHA's Web site at http://www.osha.gov.

C. Public Participation

    Under 29 CFR 1953.3(e) the Assistant Secretary may prescribe 
alternative procedures to expedite the review process or for other good 
cause which may be consistent with applicable laws. Washington's 
determination that certain Indian-operated establishments are no longer 
an issue covered under the State's plan is already in effect per 
agreement with OSHA and as a result of the State's inability to 
exercise legal authority. Additionally, a previous addendum to the 
State's operational status agreement provides for the limited 
resumption of federal enforcement authority at the State's request if 
necessary to protect the safety and health of workers in the State; 
this notice implements that provision. Accordingly, OSHA finds that 
public participation is unnecessary, and this notice of approval is 
effective upon publication in the Federal Register.

List of Subjects in 29 CFR Part 1952

    Indians, Intergovernmental relations, Law enforcement, Occupational 
safety and health.

    Signed at Washington, DC, this 6th day of April, 2004.
John L. Henshaw,
Assistant Secretary.

0
For the reasons set out in the preamble, 29 CFR part 1952 is amended as 
set forth below:

PART 1952--[AMENDED]

0
1. Revise the authority citation for part 1952 to read as follows:

    Authority: Sec. 18 of the Occupational Safety and Health Act of 
1970, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR part 1902; Secretary of 
Labor's Order No. 5-2002 (67 FR 65007, October 22, 2002).


0
2. Section 1952.122 is amended by--
0
A. Removing paragraph (a)(9) and revising paragraph (a)(8).
0
B. Redesignating paragraphs (a)(10) and (a)(11) as paragraphs (a)(9) 
and (a)(10).
    The revised text reads as follows:


Sec.  1952.122  Level of Federal enforcement.

    (a) * * *
    (8) Enforcement at establishments of employers who are federally 
recognized Indian Tribes or enrolled members of these Tribes--including 
establishments of the Yakama Indian Nation and Colville Confederated 
Tribes, which were previously excluded by the State in 1987 and 1989 
respectively--where such establishments are located within the borders 
of Indian reservations, or on lands outside these reservations that are 
held in trust by the Federal government for these Tribes. (Non-member 
private sector or State and local government employers located within a 
reservation or on Trust lands, and member employers located outside the 
territorial boundaries of a reservation or Trust lands, remain the 
responsibility of the State.);
* * * * *
[FR Doc. 04-8779 Filed 4-16-04; 8:45 am]
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