[Federal Register Volume 69, Number 241 (Thursday, December 16, 2004)]
[Proposed Rules]
[Pages 75436-75445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27565]



[[Page 75435]]

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Part V





Department of Labor





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Occupational Safety and Health Administration



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29 CFR Part 1952



Oregon State Plan--Proposed Final State Plan Approval and Approval of 
Supplements to the Oregon Occupational Safety and Health State Plan; 
Proposed Rule and Notice

  Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / 
Proposed Rules  

[[Page 75436]]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

[Docket No. T-027A]
RIN 1218-AC13


Oregon State Plan; Eligibility for Final Approval Determination 
(Excluding Temporary Labor Camps); Proposal To Grant an Affirmative 
Final Approval Determination; Comment Period and Opportunity To Request 
Public Hearing

AGENCY: Occupational Safety and Health Administration (OSHA), U.S. 
Department of Labor.

ACTION: Proposed final State plan approval; request for written 
comments; notice of opportunity to request informal public hearing.

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SUMMARY: This document gives notice of the eligibility of the Oregon 
State occupational safety and health plan, as administered by the 
Oregon Department of Consumer and Business Services, for determination 
under section 18(e) of the Occupational Safety and Health Act of 1970 
as to whether final approval of the State plan should be granted. This 
eligibility for 18(e) determination applies to all issues covered under 
the plan, with the exception of temporary labor camps.
    If an affirmative determination under section 18(e) is made, 
Federal standards and enforcement authority will no longer apply to 
issues covered by the Oregon plan, with the exception of temporary 
labor camps in agriculture, general industry, construction and logging. 
This notice announces that OSHA is soliciting written public comment 
regarding whether or not final State plan approval should be granted, 
and offers an opportunity to interested persons to request an informal 
public hearing on the question of final State plan approval.

DATES: Submit written comments and hearing requests by the following 
dates:
    Hard Copy: Your comments and hearing requests must be submitted 
(postmarked or sent) by January 18, 2005.
    Facsimile and electronic transmission: Your comments and hearing 
requests must be sent by January 18, 2005.
    Please see the section entitled Public Participation for additional 
information on submitting written comments and hearing requests.

ADDRESSES: Regular mail, express delivery, hand-delivery, and messenger 
service: Submit three copies of comments, attachments, and hearing 
requests to the OSHA Docket Office, Docket No. T-027A, Room N-2625, 
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210; telephone (202) 693-2350. OSHA Docket Office and Department of 
Labor hours of operation are 8:15 a.m. to 4:45 p.m. E.S.T.
    Please note that security-related procedures may result in 
significant delays in receiving comments by regular mail. Telephone the 
OSHA Docket Office at (202) 693-2350 for information regarding security 
procedures concerning delivery of materials by express delivery, hand 
delivery, and messenger service.
    Facsimile: Transmit hearing requests and comments (including 
attachments) consisting of 10 or fewer pages by facsimile to the OSHA 
Docket Office at (202) 693-1648.
    Electronic: Submit comments and hearing requests electronically 
through the Internet at http://dockets.osha.gov.
    You must include the docket number of this notice, Docket No. T-
027A, in your hearing requests and comments.
    For access to the docket to read or download comments or background 
materials, such as Oregon State Plan documents, go to OSHA's Docket 
Office Home Page at http://dockets.osha.gov. All comments, submissions 
and background materials are also available for inspection and copying 
in the OSHA Docket Office at the address above. Contact the OSHA Docket 
Office at (202) 693-2350 for information about materials not available 
on the OSHA Web site and for assistance in using this Web site to 
locate docket submissions. Because comments sent to the docket or to 
OSHA's Web site are available for public inspection, the Agency 
cautions interested parties against including in these comments 
personal information such as social security numbers or birth dates.

FOR FURTHER INFORMATION CONTACT: For general information and press 
inquiries, contact George Shaw, Office of Communications, Room N-3647, 
OSHA, U.S. Department of Labor, 200 Constitution Avenue NW., 
Washington, DC 20210; telephone (202) 693-1999. For technical 
inquiries, contact Barbara Bryant, Director, Office of State Programs, 
Directorate of Cooperative and State Programs, Room N-3700, OSHA, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210; telephone (202) 693-2244. Electronic copies of most information 
and data concerning the Oregon State Plan that have been made part of 
the record in this proceeding have been posted on OSHA's Docket Office 
Home Page at http://dockets.osha.gov. You may also access many of 
Oregon's documents referenced in this Federal Register document by 
visiting the State's Web site at www.cbs.state.or.us/external/osha. 
Electronic copies of this Federal Register document, as well as all 
post-1993 OSHA Federal Register notices mentioned in this document, are 
available on OSHA's Web site at www.osha.gov.

SUPPLEMENTARY INFORMATION

Background

    Section 18 of the Occupational Safety and Health Act of 1970, 29 
U.S.C. 651, et seq. (the ``Act'') provides that States which desire to 
assume responsibility for the development and enforcement of 
occupational safety and health standards may do so by submitting and 
obtaining Federal approval of a State plan. Procedures for State Plan 
submission and approval are set forth in regulations at 29 CFR part 
1902. If the Assistant Secretary, applying the criteria set forth in 
section 18(c) of the Act and 29 CFR 1902.3 and 1902.4, finds that the 
plan provides or will provide for State standards and enforcement which 
are ``at least as effective'' as Federal standards and enforcement, 
``initial approval'' is granted. A State may commence operations under 
its plan after this determination is made, but the Assistant Secretary 
retains discretionary Federal enforcement authority during the initial 
approval period as provided by section 18(e) of the Act. A State plan 
may receive initial approval even though, upon submission, it does not 
fully meet the criteria set forth in Sec. Sec.  1902.3 and 1902.4, if 
it includes satisfactory assurances by the State that it will take the 
necessary ``developmental steps'' to meet the criteria within a three-
year period (29 CFR 1902.2(b)). The Assistant Secretary publishes a 
``certification of completion of developmental steps'' when all of a 
State's developmental commitments have been satisfactorily met (29 CFR 
1902.34). Certification attests to the structural completeness of a 
State plan, but renders no judgment as to its performance in actual 
operation.
    When a State plan that has been granted initial approval is 
developed sufficiently to warrant a suspension of concurrent Federal 
enforcement activity, it becomes eligible to enter into an 
``operational status agreement'' with OSHA (29 CFR 1954.3(f)). A State 
must have enacted its enabling legislation,

[[Page 75437]]

promulgated State standards, achieved an adequate level of qualified 
personnel, and established a system for review of contested enforcement 
actions. Under these voluntary agreements, concurrent Federal 
enforcement will not be initiated with regard to Federal occupational 
safety and health standards in those issues covered by the State plan, 
where the State program is providing an acceptable level of protection.
    Following the initial approval of a complete plan, or the 
certification of a developmental plan, the Assistant Secretary must 
monitor and evaluate actual operations under the plan for a period of 
at least one year to determine, on the basis of actual operations under 
the plan, whether the criteria set forth in section 18(c) of the Act 
and 29 CFR 1902.37 are being applied and whether final approval should 
be granted.
    An affirmative determination under section 18(e) of the Act 
(usually referred to as ``final approval'' of the State plan) results 
in the relinquishment of authority for Federal concurrent enforcement 
jurisdiction in the State with respect to occupational safety and 
health issues covered by the plan (29 U.S.C. 667(e)). With the 
exception of sections 5(a)(1) and 11(c), Federal standards and 
enforcement authority no longer apply in that State to issues granted 
final approval status under the plan. Procedures for section 18(e) 
determinations are found at 29 CFR part 1902, subpart D. In general, in 
order to be granted final approval, in addition to structural 
sufficiency, actual performance by the State must be ``at least as 
effective'' as the Federal OSHA program in all areas covered under the 
State plan.
    An additional requirement for final approval consideration is that 
a State must meet the compliance staffing levels, or benchmarks, for 
safety inspectors and industrial hygienists established by OSHA for 
that State. This requirement stems from a 1978 Court Order by the U.S. 
District Court for the District of Columbia (AFL-CIO v. Marshall, C.A. 
No. 74-406), pursuant to a U.S. Court of Appeals decision that directed 
the Assistant Secretary to calculate for each State plan State the 
number of enforcement personnel needed to assure a ``fully effective'' 
enforcement program.
    The last requirement for final approval consideration is that a 
State must participate in OSHA's Integrated Management Information 
System (IMIS). This is required so that OSHA can obtain the detailed 
program performance data on a State necessary to make an objective 
continuing evaluation of whether the State performance meets the 
statutory and regulatory criteria for final approval.

History of the Oregon Plan and of Its Compliance Staffing Benchmarks

Oregon Plan

    On June 6, 1972, the Oregon occupational safety and health plan was 
submitted to the Assistant Secretary in accordance with section 18(b) 
of the Act and 29 CFR Part 1902, Subpart C, and on July 20, 1972 a 
notice was published in the Federal Register (37 FR 14445) concerning 
the submission of the plan, announcing that initial Federal approval of 
the plan was at issue and offering interested persons 30 days in which 
to submit data, views and arguments in writing concerning the plan.
    The American Federation of Labor-Congress of Industrial 
Organizations (AFL-CIO) requested a public hearing, which was held 
September 27, 1972, in Portland, Oregon. Comments on the plan were 
received from the AFL-CIO, the National Electrical Contractors, and the 
Oregon Construction Industry Council, Inc. In response to concerns 
raised by the commentors, as well as issues noted by OSHA, the State 
made clarifications and revisions to its plan relating to its standards 
and enabling legislation. The standards issues concerned the 
effectiveness of some standards, product standards, variance 
procedures, hazard communication, protection from exposure to hazards 
(requirements for personal protective equipment), and access to 
employee exposure records. Legislative issues concerned criminal 
penalty v. civil damage lawsuits, protection for employees filing 
complaints, and sanctions for alleged ``red tag'' notice violations. 
Thereafter, on December 28, 1972, the Assistant Secretary published a 
Federal Register notice (37 FR 28628) granting initial approval of the 
Oregon plan as a developmental plan and adopting Subpart D of Part 1952 
containing the decision and describing the plan.
    The Oregon Occupational Safety and Health Division (OR-OSHA) in the 
Department of Consumer and Business Services is designated as the 
agency having responsibility for administering the plan throughout the 
State under the authority of the Oregon Safe Employment Act (Oregon 
Revised Statutes, Chapter 654). The plan covers all private sector 
employers with the exception of private sector establishments on Indian 
reservations and tribal trust lands, including tribal and Indian-owned 
enterprises; Federal agencies; the U.S. Postal Service and its 
contractors; contractors on U.S. military reservations, except those 
working on U.S. Army Corps of Engineers dam construction projects; and 
private sector maritime employment on or adjacent to navigable waters, 
including shipyard operations and marine terminals. Such employers 
remain subject to Federal OSHA jurisdiction. The State's coverage also 
extends to all State and local government employers as required by 
section 18(c)(6) of the OSH Act. The plan provides for the adoption by 
Oregon of standards which are at least as effective as the Federal 
occupational safety and health standards. The plan requires employers 
to furnish employment and a place of employment which is free from 
recognized hazards that are causing or are likely to cause death or 
serious physical harm, and to comply with all occupational safety and 
health standards promulgated by the State agency. Employees are 
required to comply with all standards and regulations applicable to 
their conduct.
    The plan contains provisions similar to Federal procedures 
governing: Inspection and citation procedures; emergency temporary 
standards; imminent danger proceedings; coverage under the State's 
equivalent of the general duty clause; variances; safeguards to protect 
trade secrets; protection of employees against discrimination for 
exercising their rights under the plan; and employer and employee 
rights to participate in inspection and review proceedings. Notices of 
contest of citations and penalties are heard by the Oregon Workers' 
Compensation Board, an independent administrative board. Decisions of 
the Workers' Compensation Board may be appealed to the Oregon appellate 
court. Complaints of discrimination are investigated by the Oregon 
Bureau of Labor and Industries, which also makes final determinations 
through settlement agreements and contested case hearings. Employees 
who allege discrimination have a private right of action in the circuit 
courts of Oregon, but may pursue both administrative and civil remedies 
only if they file a suit in court after BOLI has investigated and 
rejected their claim. The Assistant Secretary's initial approval of the 
Oregon developmental plan, a general description of the plan, a 
schedule of required developmental steps, and a provision for the 
exercise of discretionary concurrent Federal enforcement during the 
period of initial approval were codified in the Code of Federal 
Regulations (29 CFR Part 1952, Subpart D, 37 FR 28628, December 28, 
1972).

[[Page 75438]]

    In accordance with the State's developmental schedule, all major 
structural components of the plan were put in place and documentation 
submitted for OSHA approval on or before December 28, 1975. These 
``developmental steps'' included enactment of the Oregon Safe 
Employment Act, promulgation of State occupational safety and health 
standards at least as effective as the Federal standards, development 
of administrative rules and procedures, hiring and training of 
inspectors, establishment of specific occupational safety and health 
goals, development and implementation of an affirmative action program, 
and development and implementation of administrative rules concerning a 
public sector consultation program. In completing these developmental 
steps, the State developed and submitted for Federal approval all 
components of its program including, among other things: The Oregon 
Safe Employment Act; the Oregon State Poster; an Affirmative Action 
Plan; personnel merit system rules; a Statement of Goals and 
Objectives; the Oregon State Compliance Manual; regulations for 
inspections, citations and penalties, variances, employee complaints, 
and posting of citations and notices; recordkeeping and reporting 
regulations; Oregon occupational safety and health standards; and 
public sector consultation program rules.
    These submissions were carefully reviewed by OSHA; after 
opportunity for public comment and modification of State submissions, 
where appropriate, the major plan elements were approved by the 
Assistant Secretary as meeting the criteria of section 18 of the Act 
and 29 CFR 1902.3 and 1902.4. The Oregon Subpart of 29 CFR Part 1952 
was amended to reflect each of these approval determinations (see 29 
CFR 1952.102).
    On September 15, 1982, in accordance with procedures at 29 CFR 
1902.34 and 1902.35, the Assistant Secretary certified that Oregon had 
satisfactorily completed all developmental steps (47 FR 42105, 
September 24, 1982). In certifying the plan, the Assistant Secretary 
found the structural components of the plan--the statutes, standards, 
regulations, and written procedures for administering the Oregon 
program--to be at least as effective as corresponding Federal 
provisions. Certification does not, however, entail findings or 
conclusions by OSHA concerning the adequacy of the plan in actual 
performance. As has already been noted, OSHA regulations provide that 
certification initiates a period of evaluation and monitoring of State 
activity to determine in accordance with section 18(e) of the Act 
whether the statutory or regulatory criteria for State plans are being 
applied in actual operations under the plan and whether final approval 
should be granted.
    On January 23, 1975, OSHA and the State of Oregon entered into an 
Operational Status Agreement which suspended the exercise of Federal 
concurrent enforcement authority in Oregon in all except specifically 
identified areas. (See 40 FR 18427.)
    The State has submitted plan supplements describing changes to its 
program since plan approval. OSHA's approval of major plan changes has 
been announced in Federal Register notices published periodically. 
Approval of a fully updated State plan document containing all current 
structural components (legislation, regulations, policies and 
procedures manuals) and an updated plan narrative is published 
elsewhere in today's Federal Register.

Oregon Benchmarks

    Under the terms of a 1978 Court Order in AFL-CIO v. Marshall, 
compliance staffing levels (benchmarks) necessary for a ``fully 
effective'' enforcement program were required to be established for 
each State operating an approved State plan. In 1980, in response to 
the Court Order, OSHA established benchmarks for all approved State 
plans, including benchmarks of 47 safety and 60 health compliance 
officers for Oregon. The 1978 Court Order noted that new information 
might warrant an adjustment by OSHA of the fully effective benchmarks. 
In October, 1992, Oregon, in conjunction with OSHA, completed a 
reassessment of the levels resulting in a proposed revised health 
compliance staffing benchmark of 28 health compliance officers. The 
State determined that there was no compelling reason to revise the 
existing 1980 safety benchmark 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 (59 FR 42493).

Determination of Eligibility

    This Federal Register document announces the eligibility of the 
Oregon plan for final approval determination under section 18(e) for 
all issues, with the exception of temporary labor camps in agriculture, 
general industry, construction and logging, which issue is being 
excluded from final approval at this time pending resolution of OSHA's 
concerns regarding the effectiveness of the State's temporary labor 
camps standards. OSHA intends to work with the State to resolve all 
effectiveness issues with regard to its two temporary labor camp 
standards so that final approval may be extended to all covered issues 
within a reasonable timeframe. 29 CFR 1902.39(c) requires that notice 
of this determination of eligibility be published in order to seek 
public input prior to the Assistant Secretary's decision. The 
determination of eligibility is based upon OSHA's findings that:
    (1) The Oregon plan has been monitored in actual operation for at 
least one year following certification. The results of OSHA's 
monitoring of the plan since the commencement of plan operations are 
contained in written evaluation reports which are made available to the 
State and to the public. The results of OSHA's most recent post-
certification monitoring are set forth in a comprehensive evaluation 
report covering the period of October 1, 2002 through September 30, 
2003, which has been made part of the record of the present proceedings 
and is available in Docket T-027A, together with all previous 
evaluation reports since 1983.
    (2) The plan meets the State's revised benchmarks for enforcement 
staffing. On August 11, 1994, pursuant to the terms of the Court Order 
and the 1980 Report to the Court in AFL-CIO v. Marshall, OSHA approved 
revised fully effective benchmarks of 47 safety and 28 health 
compliance officers for Oregon based on an assessment of State-specific 
characteristics and historical experiences. Oregon has allocated safety 
positions in excess of these numbers, as evidenced by its FY 2005 
Application for Federal Assistance in which the State has committed 
itself to funding the State share of salaries for 44 safety and 23 
health compliance officers, with an additional 8 safety and 5 health 
compliance officers that are funded with 100% State monies. Total 
compliance officer staffing in both FY 2004 and FY 2005 is 52 safety 
and 28 health. Both the FY 2004 and FY 2005 grant applications have 
been made part of the record in the present proceeding.
    Oregon provides State funds for its program well in excess of the 
required 50% match of Federal funding. The additional funds have 
allowed the State to expand staffing and activities in both its 
enforcement and voluntary compliance programs. Oregon also operates a 
100% State-funded on-site consultation program for public and private 
employers that is separate from its Federally-funded consultation 
program under section 21(d). As this State-funded program differs in 
several

[[Page 75439]]

significant ways from the Federal requirements, its private sector 
component is not considered to be part of the State plan and is 
evaluated primarily to assure no negative impact on the required 
functions of the approved State plan.
    (3) Oregon participates and has assured its continued participation 
in the computerized Integrated Management Information System (IMIS) 
developed and administered by OSHA.
    As required of all States with approved plans, Oregon has developed 
a five-year Strategic Plan (currently covering the period FY 2001 to FY 
2005) to guide its efforts to improve occupational safety and health in 
the State. The State's strategic goals (improve workplace safety and 
health, change workplace culture, and assure public confidence) are 
similar to those of Federal OSHA and are directed to the overall goal 
of reducing workplace injuries, illnesses and fatalities. Oregon's 
efforts are expected to contribute to the achievement of OSHA's 
national injury/illness/fatality reduction goals. Oregon's FY 2001-2005 
Strategic Plan and its FY 2004 and FY 2005 Annual Performance Plans are 
available in Docket T-027A, as a part of Oregon's FY 2004 and 2005 
grants.

Issues for Determination in the 18(e) Proceedings

    The Oregon plan is now at issue before the Assistant Secretary for 
determination as to whether the criteria of section 18(c) of the Act 
are being applied in actual operation in a manner at least as effective 
as the Federal program. 29 CFR 1902.37(a) requires the Assistant 
Secretary, as part of the final approval process, to determine if the 
State has applied and implemented all the specific criteria and indices 
of effectiveness of Sec. Sec.  1902.3 and 1902.4. The Assistant 
Secretary must make this determination by considering the factors set 
forth in Sec.  1902.37(b). OSHA believes that the results of its 
evaluation of the Oregon program as described in the most recent 
evaluation report, considered in light of these regulatory criteria and 
the criteria in section 18(c) of the Act, indicate that the regulatory 
indices and criteria are being met. The Assistant Secretary accordingly 
has made an initial determination that the Oregon plan is eligible for 
an affirmative section 18(e) determination for all issues covered by 
the plan with the exception of temporary labor camps as regulated by 
two state standards applicable to both agriculture and general industry 
(including construction and logging). This notice initiates proceedings 
by which OSHA expects to elicit public comment on the issue of granting 
an affirmative section 18(e) determination to Oregon. In order to 
encourage the submission of informed and specific public comment, a 
summary of current evaluation findings with respect to these criteria 
is set forth below.
(a) Standards and Variances
    Section 18(c)(2) of the Act requires State plans to provide for 
occupational safety and health standards which are at least as 
effective as Federal standards. A State is required to adopt, in a 
timely manner, all Federal standards and amendments or to develop and 
promulgate State standards and amendments at least as effective as the 
Federal standards. See Sec. Sec.  1902.37(b)(3), 1902.3(c), 1902.4 (a) 
and (b). Although Oregon does not automatically adopt standards which 
are identical to the Federal standards, it usually adopts Federal 
standards by reference and sometimes adds a few State-initiated 
provisions under the State's regulatory numbering system. Oregon also 
adopts independent standards which do not have a direct Federal 
counterpart. Oregon OSHA adopts standards through a promulgation 
process that provides notification to the public of its intent to adopt 
a standard: It publishes the standard that it proposes in the Secretary 
of State's Bulletin, it asks for comments and it may hold hearings. 
After review of all comments and appropriate revision, the standard is 
formally adopted and its effective date established. When Oregon OSHA 
is considering substantive standard revisions, a committee of affected 
employers, employees, and other experts is convened to provide input 
and draft language before comments are requested from the public. Thus, 
OR-OSHA's standards development process is similar to Federal OSHA's 
and provides full opportunity for public input.
    Some Oregon standards and related enforcement policies differ from 
the Federal, such as the State's enforcement policy requiring employers 
to pay for personal protective equipment, Oregon's additional rules for 
personal protective equipment and for explosives and blasting agents, 
and the State's different rules for air contaminants, bloodborne 
pathogens (needlestick devices), spray finishing, concrete and masonry 
construction, and fall protection in construction. Oregon has also 
adopted a number of standards which do not have Federal counterparts, 
including workplace safety committees, crane operator training, thiram, 
reinforced plastics manufacturing, ornamental tree and shrub services, 
and extensive forest activities (logging) requirements. [18(e) 
Evaluation Report, pp. 20-21]
    Where a State adopts Federal standards, the State's interpretation 
and application of such standards must be consistent with Federal 
interpretation and application. Where a State develops and promulgates 
its own standards, interpretation and application must ensure 
protection at least as effective as comparable Federal standards and 
enforcement procedures. While acknowledging the effectiveness of 
individual standards, this requirement stresses that State standards, 
in actual operation, must be at least as effective as the Federal 
standards. See Sec. Sec.  1902.37(b)(4), 1902.3(c)(1), 1902.3(d)(1), 
1903.4(a), and 1902.4(b)(2). As already noted, the Oregon plan provides 
for adoption of standards identical to or at least as effective as the 
Federal standards. Oregon also generally adopts Federal interpretations 
or more stringent requirements and thus assures at least as effective 
worker protection.
    The State is required to take the necessary administrative, 
judicial or legislative action to correct any deficiency in its program 
caused by an administrative or judicial challenge to any State 
standard, whether the standard is identical to the Federal standards or 
developed by the State. See Sec.  1902.37(b)(5). There have been 
administrative and judicial challenges to State standards in Oregon, 
but they have all been satisfactorily resolved. The State legislature 
has periodically enacted legislation requiring changes in the State's 
standards, such as for safety committees, hazard communication in 
agriculture, live-line bare-handed electrical work, sanitation in 
construction, and most recently for steel erection. For example, the 
steel erection legislation resulted in a required modification to 
Oregon's more stringent fall protection provisions in its steel 
erection standard to make them identical to the Federal.
    When granting permanent variances from standards, the State is 
required to ensure that the employer provides as safe and healthful 
working conditions as would have been provided if the standard were in 
effect. See Sec. Sec.  1902.37(b)(6) and 1902.4(b)(2)(iv). Oregon 
granted three permanent variances during the 18(e) evaluation period. 
The granted variances were processed in accordance with State 
procedures. [18(e) Evaluation Report, p. 21] Where a temporary variance 
is granted, the State must ensure, among other things, that the 
employer complies with the standard as soon as possible and provides 
appropriate interim employee protection. See

[[Page 75440]]

Sec. Sec.  1902.37(b)(7) and 1902.4(b)(2)(iv). The Oregon temporary 
variance procedures require that any employer granted a temporary 
variance must have an effective program for coming into compliance with 
the standard as soon as possible. During the section 18(e) evaluation 
period, no temporary variances were granted. [18(e) Evaluation Report. 
p. 21]
(b) Enforcement
    Section 18(c)(2) of the Act requires State plans to maintain an 
enforcement program which is at least as effective as that conducted by 
Federal OSHA. Section 18(c)(3) requires the State plan to provide for 
right of entry and inspection of all work places at least as effective 
as that in section 8 of the Act.
    Inspection Targeting. The State inspection program must provide for 
sufficient resources to be directed to designated target industries 
while providing adequate protection to all other workplaces covered 
under the plan. See Sec. Sec.  1902.37(b)(8), 1902.3(d)(1), and 
1902.4(c). Oregon relies on injury and illness claims data from the 
State workers' compensation system as the primary means to identify 
employers for high-hazard, programmed safety and health inspections. 
This site-specific targeting is augmented by workers' compensation 
claim severity classifications, an employer's history, and other 
factors to arrive at a ranking on an inspection list. Separate lists 
are made for general industry, construction, logging, and health.
    Oregon's strategic plan for FY 2001-2005 focuses on reducing silica 
exposures, lead in construction exposures, and fall hazards. The State 
has targeted inspections in the following industries: agriculture, 
construction, lumber/wood, food/kindred products, and health care. OR-
OSHA conducted 4,569 safety inspections during FY 2003. Of that total, 
3,494 (76%) were programmed. In the same period, 789 health inspections 
were conducted, of which 350 (44%) were programmed, for a combined 
programmed inspections average of 72%. This is consistent with previous 
years' inspections and exceeds the Federal experience of 56% programmed 
inspections. Fourteen percent (14%) of State inspections are in 
response to complaints and 4% are in response to accidents. There are 
no backlogs of such inspections.
    During the evaluation period, the percentage of OR-OSHA programmed 
safety inspections with serious, willful or repeat violations was 40% 
for Oregon compared to 60% for Federal OSHA and a national (State and 
Federal OSHA data combined) three-year average of 49%. The percentage 
of OR-OSHA programmed health inspections with serious, willful or 
repeat violations was 25% for Oregon compared to 46% for Federal OSHA 
and a national three-year average of 40%. State officials assert that 
fewer serious violations per inspection are expected in Oregon because 
of a higher frequency of inspections, workplace safety committee (and 
employer safety and health program) requirements, and a large 
consultation program. (See discussion under Identifying and Citing 
Hazards.)
    Denials of Entry. In cases of refusal of entry, the State must 
exercise its authority, through appropriate means, to enforce the right 
of entry and inspection. See Sec. Sec.  1902.37(b)(9), 1902.3(e) and 
(f), and 1902.4(c)(2)(i) and (ix). Section 654.067 of the Oregon Safe 
Employment Act provides for an inspector's right of entry during 
regular hours to any place of employment. During the evaluation period, 
there were 14 denials of entry. Entry was achieved in all cases, the 
same as for Federal OSHA during the period. [18(e) Evaluation Report, 
p. 22]
    Inspection Procedures. Inspections must be conducted in a competent 
manner following approved enforcement procedures, which include the 
requirement that inspectors acquire information adequate to support any 
citation issued. See Sec. Sec.  1902.37(b)(10), 1902.3(d)(1), and 
1902.4(c)(2). Procedures for the Oregon occupational safety and health 
compliance program are set out in the Oregon Field Inspection Reference 
Manual (FIRM), which is patterned after OSHA's FIRM and other 
compliance documents. The Oregon FIRM is supplemented by program 
directives. The State in actual operation has demonstrated its 
adherence to inspection procedures, including documentation, which are 
similar to Federal procedures. [18(e) Evaluation Report p. 22]
    Oregon uses multi-employer workplace citation guidelines that are 
different from the Federal multi-employer policy. Oregon's guidelines 
allow employers on multi-employer sites to be cited if they create 
hazards, expose employees to hazards, or control the worksite, provided 
certain conditions are met, whereas the Federal policy is broader and 
also allows citations for employers responsible for correcting a 
hazard. Only Oregon employers that have knowledge of the hazardous 
conditions and exercise direct control over the work practices of 
employees exposed to such conditions may be cited. However, Oregon's 
guidelines encourage the use of Orders to Correct for employers that 
are not cited.
    Identifying and Citing Hazards. In FY 2003, Oregon compliance 
officers found 2.9 violations per inspection, which is the same as the 
Federal average of 2.95 violations per inspection, but lower than the 
three-year national (State and Federal data combined) average of 3.5. 
Oregon also cited an average of 1.1 serious, willful or repeat 
violations per inspection. The comparable Federal data was 2.2 and the 
national three-year average was 2.0. For other-than-serious violations, 
the respective averages were 1.81 for Oregon, .75 for Federal, and 1.5 
for the three-year national average. In addition to issuing citations, 
the State issues ``Orders to Correct'' to require correction in certain 
circumstances. For example, orders may be used when a citation has not 
been issued within 180 days of the opening conference, when legal 
estoppel issues interfere with issuing a citation or when a small 
employer, who is required by rule to have a safety committee but does 
not, agrees to implement an ``innovative'' committee following the OR-
OSHA guidelines for small employers. Citations for failure-to-abate and 
repeat violations can be issued on an Order to Correct. Almost all 
Orders to Correct have dealt with small employer implementation of 
safety committee requirements.
    Although Oregon OSHA finds as many violations per inspection as 
does Federal OSHA, its percentage of programmed inspections with 
serious, willful or repeat violations is lower than both the Federal 
and national averages (see Inspection Targeting). State officials 
assert that Oregon's lower percent of serious, willful or repeat 
violations is attributable to the fact that Oregon has a much higher 
frequency of inspections compared to Federal and national averages. 
With 157,117 private sector establishments (per Oregon FY 2004 annual 
performance plan, p. 4), Oregon's 5,082 private sector inspections in 
FY 2003 represent one inspection for every 29 establishments, compared 
to one inspection for every 82 private sector establishments at the 
national (State and Federal OSHA data combined) level. [18(e) 
Evaluation Report, pp. 21-22]
    Oregon has also required employer safety and health programs 
through workplace safety committees since 1982. Besides conducting 
workplace inspections, investigating accidents and recommending to the 
employer how to eliminate hazards, these safety committees assist the 
employer in evaluating the employer's safety and health program and 
make written

[[Page 75441]]

recommendations to improve the program. In addition, Oregon has a 
large, independent consultation program whose private sector component 
operates outside of the approved State plan and a large employer 
recognition and exemption program which meets Federal requirements, as 
well as other cooperative compliance assistance activities. These 
programs emphasize assisting employers in improving their safety and 
health programs. (84% of Oregon consultations in FY 2003 involved 
working with safety committees.) These factors may have the effect of 
reducing the numbers of serious hazards present in the workplace and 
therefore the number of serious violations per inspection. Oregon's 
accepted workers' compensation disabling claims rate and Bureau of 
Labor Statistics lost workday injury/illness rate have also been 
steadily declining over the past decade, demonstrating fewer injuries. 
(See Injury/Illness Rates section.) [18(e) Evaluation Report, pp. 10-
12, and Appendix A, SOAR Report, pp. A-1 and A-3]
    Though Oregon has a lower percentage of violations that are willful 
(.02% vs. .49% Federal), Oregon's statutory provisions for criminal 
willful penalties at ORS 654.991(a) contain two additions not found in 
the Federal OSH Act which should enhance Oregon's ability to 
successfully pursue criminal willful violations. A willful violation in 
Oregon that materially contributes to the death of an employee may also 
be subject to criminal prosecution, as well as a willful violation that 
causes a death. The Oregon Act also includes a definition of 
``willful''.
    Advance Notice. State plans must include a prohibition on advance 
notice of inspections, and exceptions must be no broader than those 
allowed by Federal OSHA procedure. See Sec.  1902.3(f). Oregon has 
adopted approved procedures for advance notice similar to the Federal 
procedures. During the evaluation period, Oregon did not grant any 
advance notice of inspections.
    Employee Participation. State plans must provide for inspections in 
response to employee complaints, and must provide an opportunity for 
employee participation in State inspections. See Sec.  1902.4(c)(i) 
through (iii). The State has procedures similar to those of Federal 
OSHA which require that either an employee representative be provided 
an opportunity to accompany the compliance officer on the walk-around 
or that a reasonable number of employees be interviewed. In addition, 
inspection reports are provided to employee representatives and 
complainants. In each of the 18 accompanied visit inspections with OSHA 
monitors during the evaluation period, employees or their 
representatives actively participated. No problems have been noted 
concerning employee participation. [18(e) Evaluation Report, p. 22]
    Response to Complaints. Oregon's procedures for processing and 
responding to complaints are essentially identical to OSHA's. Imminent 
danger complaints are to be responded to by inspection within 24 hours 
and serious complaints within 5 working days. Other-than-serious 
complaints may be responded to by inspection (within 30 working days), 
letter, fax or telephone. During the evaluation period the State was 
timely in initiating responses to employee imminent danger complaints 
98% of the time, serious complaints 95% of the time, and other-than-
serious complaints 99% of the time. In addition, OR-OSHA provided 
complainants with timely response letters 94% of the time and sent 
timely letters 100% of the time to family members when fatalities were 
involved. During FY 2003 Oregon responded to 59 imminent danger 
complaints (8%), 379 serious complaints (52%) and 291 other-than-
serious complaints (40%); these figures are virtually unchanged from FY 
2002. [18(e) Evaluation Report, pp. 22-23 and Appendix A, SOAR Report, 
p. 12]
    Non-discrimination. State plans must also provide protection for 
employees against discrimination similar to that found in section 11(c) 
of the Federal Act. See Sec.  1902.4(c)(2)(v). Section 654.062(5) of 
the Oregon Safe Employment Act provides for discrimination protection 
equivalent to that provided by Federal OSHA. Under Oregon law, the 
Bureau of Labor and Industries (BOLI) has jurisdiction for 
discrimination cases. Oregon OSHA contracts with BOLI for 
discrimination complaint processing. A total of 54 complaints alleging 
discrimination were investigated during the evaluation period, four of 
which were found to be meritorious. Oregon met the 90-day time limit 
for completing discrimination investigations 67% of the time. The 
State's goal is to complete investigations within 90 days in 85% of 
cases. Oregon OSHA is actively working with BOLI to improve case 
determination timeliness, to ensure that a review of the ``prima 
facie'' elements is conducted in every instance when determining the 
merits of 11(c) complaints, and to provide file documentation of the 
reasons why no investigation is conducted. The administrator of the 
Civil Rights Division of BOLI has expressed BOLI's commitment to 
addressing OSHA's concerns, and OR-OSHA will be reviewing 
discrimination case files for appropriate case file documentation, 
including prima facie analysis, during quarterly audits. BOLI takes 
appropriate action through administrative and court litigation on merit 
cases where the employer does not voluntarily comply with the State's 
proposed remedy. OR-OSHA pays BOLI for each occupational safety and 
health-related discrimination investigation it conducts. At the time 
the evaluation report was prepared, BOLI had 12 investigators. [18(e) 
Evaluation Report, pp. 26-28]
    Although the State's non-discrimination program is working to 
resolve several issues, employees in Oregon continue to have the right 
to dually file a discrimination complaint with Federal OSHA to preserve 
their right to further Federal investigation and prosecution should it 
be necessary. As Federal authority under section 11(c) is not affected 
by an 18(e) determination, this protection would be unaffected by this 
proposed action. Oregon complainants also have a private right of 
action and may file a civil suit in State or Federal court if they are 
not satisfied with BOLI's decision or if their case is dismissed. For a 
discussion of Oregon's discrimination rules, see ``Oregon State Plan; 
Approval of Plan Supplements; Revised State Plan'' published elsewhere 
in today's Federal Register.
    Citations and Proposed Penalties. The State is required to issue, 
in a timely manner, citations, proposed penalties, and notices of 
failure to abate. See Sec. Sec.  1902.37(b)(11), 1902.3(d), and 
1902.4(c)(2) (x) and (xi). The time from an inspection opening 
conference to citation issuance for safety inspections in Oregon was 38 
days during FY 2003. This is better than the national average of 47 
days but longer than the Federal average of 29 days. For health 
inspections, however, OR-OSHA averaged 74 days while the national 
average was 63 days and the Federal average was 40 days. As a result of 
State attention to this issue, by the end of the second quarter of FY 
2004 lapse times were 34 days (safety) and 69 days (health). [18(e) 
Evaluation Report, p. 24]
    The State must propose penalties in a manner that is at least as 
effective as the penalties under the Federal program, which includes 
first instance violation penalties and consideration of factors 
comparable to those required in the Federal program in calculating 
penalties. See Sec. Sec.  1902.37(b)(12), 1902.3(d), and 1902.4(c) (x) 
and (xi). Oregon's authority includes the use of

[[Page 75442]]

first instance sanctions with maximum statutory penalty amounts 
identical to the Federal with the exception of an optional $1,000 
maximum penalty for posting violations vs. the Federal mandatory 
$7,000. This difference is not considered significant, however, as 
Oregon has also established a minimum posting penalty of $100-$200 and 
in practice, although OSHA may cite for failure to post a citation or 
annual summary, it does not usually issue citations for failure to post 
the OSHA poster (OSHA Directive CPL 02-00-111 (CPL 2.111), ``Citation 
Policy for Paperwork and Written Program Requirement Violations'', 
November 27, 1995). Unlike OSHA, Oregon also has statutory civil 
penalties of $100 to $2,500 for false statements (in addition to 
criminal penalties), red tag penalties of $100 to $5,000, and field 
sanitation penalties of $250 to $2,500. By regulation, Oregon also has 
raised the statutory minimum penalty amounts for various violations.
    OR-OSHA's procedures for penalty calculation contain a number of 
differences from OSHA's, including lower base penalty amounts used in 
calculation of a probability/severity-based (gravity-based) penalty, 
and differences in calculations for combined or grouped violations and 
in penalty adjustment factors. For example, while Federal OSHA allows a 
penalty reduction of up to 60% for employer size, Oregon allows a 
penalty reduction of only 10% for small employers. Oregon also allows 
penalty reductions for a low lost workday injury rate which Federal 
OSHA does not. In addition, Oregon's procedures generally allow a lower 
minimum penalty for failure-to-abate violations ($50 per day for other-
than-serious and $250 per day for serious, with higher minimum in 
unusual circumstances, vs. Federal policy of $1,000 per day minimum for 
either serious or other-than-serious unabated violations). Oregon does 
not allow penalty adjustments for repeat or willful violations, while 
OSHA allows an adjustment for employer size. Although these differences 
in penalty calculation result in lower average penalties in Oregon, no 
deficiencies in program operations attributable to these differences 
were noted during this evaluation period. Oregon's penalties for 
serious violations averaged $365 in FY 2003. The national average 
penalty for serious violations was $1,331 and the Federal average was 
$821. Oregon believes that its practice of conducting much more 
frequent inspections (see Inspection Targeting) and the fact that its 
final assessed penalties are reduced less after appeal than are Federal 
OSHA's result in equivalent worker protection as demonstrated by 
declining injury/illness rates. [18(e) Evaluation Report, pp. 24-25]
    Abatement. The State must ensure abatement of hazards cited 
including issuance of notices of failure to abate and appropriate 
penalties. See Sec. Sec.  1902.37(b)(13), 1902.3(d), and 1902.4(c)(vii) 
and (xi). A joint OSHA/OR-OSHA special study of case files with serious 
violations found that satisfactory abatement verification documentation 
existed in 90% (80 of 88) of the case files. [18(e) Evaluation Report, 
p. 24] Ninety-six percent (96%) of safety violations had abatement 
periods of less than 30 days and 97% of health violations had abatement 
periods of less than 60 days. This surpasses Federal performance of 80% 
and 90%, respectively. [18(e) Evaluation Report, Appendix B, FY 2003 
Interim State Indicator Report, C.4] Oregon also requires 
abatement verification when it issues an Order to Correct, and a 
Failure to Abate citation, with penalties, can be issued for non-
abatement. (See discussion of Orders to Correct under Identifying and 
Citing Hazards.)
    Whenever appropriate, the State must seek administrative and 
judicial review of adverse adjudications. Additionally, the State must 
take necessary and appropriate action to correct any deficiencies in 
its program which may be caused by an adverse administrative or 
judicial determination. See Sec. Sec.  1902.37(b)(14) and 1902.3 (d) 
and (g). There was no Oregon OSHA appellate level contested case 
activity during this reporting period. OR-OSHA has had a number of 
appellate challenges in prior years, and has been successful in 
upholding basic employee rights (e.g., complainant confidentiality and 
participation in inspections) as well as program authorities (e.g., 
inspection targeting and expansion of inspection scope). OR-OSHA had 
fewer violations vacated (9% vs. 22%), fewer serious violations 
reclassified (3% vs. 13%) and less reduction in penalties amounts (45% 
vs. 49%) after appeal than Federal OSHA during this same period. [18(e) 
Evaluation Report, p. 25]
(c) Staffing and Resources
    The State is required to have a sufficient number of adequately 
trained and competent personnel to discharge its responsibilities under 
the plan. See section 18(c)(4) of the Act; 29 CFR 1902.37(b)(1), 
1902.3(d) and 1902.3(h). A State must also direct adequate resources to 
administration and enforcement of the plan. See section 18(c)(5) of the 
Act and Sec.  1902.3(I). The number of safety compliance positions 
authorized by the State exceeds the enforcement staffing benchmark for 
safety (52 authorized with a safety benchmark of 47). For health 
compliance positions, the number authorized equals the health benchmark 
(28 authorized with a health benchmark of 28). At the close of the 
evaluation period, 97% of the authorized enforcement positions were 
filled--98% of safety compliance positions and 96% of health compliance 
positions. These allocations are consistent with prior years' approved 
23(g) grant agreements. In addition to the central office in Salem, the 
State maintains field offices in Portland, Salem, Medford, Eugene, 
Pendleton and Bend. [18(e) Evaluation Report, p. 28]
    Oregon has consistently provided State matching funds well in 
excess of Federal funding. In the Fiscal Year 2005 initial grant award, 
the State has provided 72.6% of the total budget for its occupational 
safety and health program. Total funding for the State program in 
Fiscal Year 2005 is $18,604,237. ($5,105,000 Federal, $13,499,237 
State).
    Oregon staff are trained by internally developed and conducted 
training sessions as well as by courses offered through the OSHA 
Training Institute. Development plans are created annually for each 
staff member to meet individual needs. In addition, the State develops 
a biennial training plan which provides the State with a process 
through which major rule changes and shifts in technology can be 
addressed division-wide.
(d) Other Requirements
    Public Employees. States which have approved plans must provide a 
safety and health program for State and local employees which must be 
as effective as the State's plan for the private sector. See Sec.  
1902.3(j). The Oregon plan provides a program in the public sector 
which is identical to that in the private sector, including proposed 
penalties for first instance violations. The same policies and 
procedures apply to both sectors in terms of inspections, complaints, 
citations, penalties, and employer/employee rights. During this 
evaluation period, the State conducted 265 (4.94%) of its total 
inspections in the public sector. The results of these inspections were 
comparable to those in the private sector. [18(e) Evaluation Report, p. 
25]
    Injury/Illness Rates. As a factor in its section 18(e) 
determination, OSHA must consider whether the Bureau of Labor 
Statistics' annual occupational safety and health survey and other 
available

[[Page 75443]]

Federal and State measurements of program impact on worker safety and 
health indicate that trends in worker safety and health injury and 
illness rates under the State program compare favorably with those 
under the Federal program. See Sec.  1902.37(b)(15). Bureau of Labor 
Statistics injury-illness data for 2002 are not directly comparable to 
2001 or prior years due to OSHA's change in its recordkeeping 
requirements effective January 1, 2002.
    Although Oregon's injury/illness rates are somewhat higher than the 
national rates, they have declined steadily during the past decade, at 
a rate greater than the national experience. Oregon's lost workday case 
incidence rate declined from 5.6 in 1988 to 3.2 in 2001, while the 
national rate declined from 4.0 in 1989 to 2.8 in 2001. Oregon's lost 
workday case rate has declined by 43% while the national rate has 
declined by 30%. Oregon's lost workday case rate for the private sector 
remained at 3.2 for 2001 and 2002, slightly higher than the national 
rate of 2.8 for both years. Oregon's total case rate was also slightly 
higher than the national rate in both 2001 (6.2 vs. 5.7 national) and 
2002 (6.0 vs. 5.3 national). In construction, Oregon's lost workday 
case rate dropped from 4.3 in 1999 and 2000 to 3.8 in 2001, remaining 
below the national rate for all three years, but was slightly higher 
than the national rate in 2002 (4.0 Oregon vs. 3.8 national).
    In manufacturing, Oregon's lost workday case rate was 4.3 in 2001, 
slightly higher than the 4.1 national rate, while in 2002 Oregon's rate 
of 4.1 was identical to the national. Oregon's lost workday case rate 
for public sector employment was 2.9 in 2001 and 3.1 in 2002, still 
comparing favorably to its 3.2 private sector rate. [18(e) Evaluation 
Report, p. 29 and Appendix A, SOAR Report, p. A-1.]
    Oregon's number of accepted disabling workers' compensation claims 
has also declined steadily over the past decade, from 31,530 in 1994 to 
23,482 in 2002 [18(e) Evaluation Report, Appendix A, SOAR Report, p. A-
3], and the accepted disabling claims rate declined from 1.7 in 1998 to 
1.5 in 2002.
    Required Reports. State plans must assure that employers in the 
State submit reports to the Secretary in the same manner as if the plan 
were not in effect. See section 18(c)(7) of the Act; 29 CFR 1902.3(k). 
The plan must also provide assurance that the designated agency will 
make such reports to the Secretary in such form and containing such 
information as he or she may from time to time require. Section 
18(c)(8) of the Act; 29 CFR 1902.4(1). Oregon's recordkeeping 
requirements are identical to those of Federal OSHA with regard to the 
recording and reporting of injuries, illnesses and fatalities including 
all recent Federal revisions, but differ in other areas. In response to 
comments from OSHA, in March 2002, the State modified its rules to 
reflect certain Federal rulemaking changes which were necessary to be 
at least as effective as OSHA's, and in April 2004 added certain 
clarifying interpretive notes regarding bloodborne accidents and 
various definitions. OR-OSHA has regulations comparable to OSHA's for 
reporting workplace fatalities and catastrophes. The State participates 
in the BLS Annual Survey of Occupational Illness and Injuries and the 
Census of Fatal Occupational Injuries. Oregon OSHA has elected not to 
participate in the OSHA Data Initiative, but has access to workers' 
compensation claims rates for employer-specific injury/illness 
information. As noted previously, the State has assured its continuing 
participation with OSHA in the Integrated Management Information System 
(IMIS) as a means of providing reports on its activities to OSHA, and 
submits other information and reports as required. [18(e) Evaluation 
Report, p. 29]
    Voluntary Compliance. Section 1902.4(c)(2)(xiii) requires States to 
undertake programs to encourage voluntary compliance by employers by 
such means as conducting training and consultation with employers and 
employees. Oregon operates an on-site consultation program funded under 
section 21(d) of the Occupational Safety and Health Act which is 
separate from its OSHA-approved State plan. This program provides 
consultation services to private sector employers focusing on small, 
high hazard employers. Two safety and two health positions are 
allocated for Oregon under this contract. During the evaluation period, 
Oregon's 21(d) consultants conducted 130 visits of which 93 were health 
consultations and 37 were safety consultations. These consultants 
played an important role in the implementation of a required employer 
recognition and exemption program by participating with State-funded 
consultants in 28 Safety and Health Achievement Recognition Program 
(SHARP) evaluation teams during the evaluation period.
    Oregon provides additional consultative services to public and 
private employers with 19 safety and 13 health consultants that are 
100% State-funded. (About 13% of OR-OSHA's annual consultations are 
conducted in the public sector.) This large State-funded consultation 
program does not make referrals to enforcement and does not require the 
posting of hazards and therefore the private sector aspect of this 
program is not considered part of the approved State plan. It is 
evaluated to assure that it does not have a negative impact on the 
mandated State program activities. The State believes that this program 
has added to the overall effectiveness of Oregon OSHA and, to date, no 
negative impact on the Oregon State plan has been identified. [18(e) 
Evaluation Report, p. 30]
    Oregon OSHA offers on its website an extensive inventory of 
training opportunities: on-line registration for a large variety of 
workshop classes, on-line training modules for Hispanic workers and for 
loggers, classes jointly developed with labor and the construction 
industry, and on-line interactive courses. On-line compliance 
assistance resources include a Spanish-English Dictionary of 
Occupational Safety and Health Terms, technical publications in 
Spanish, training materials, and an ergonomics web page. OR-OSHA also 
offers special assistance for small business, including ``brown bag'' 
safety and health program workshops and on-line resources. During FY 
2003 14,927 participants, including 6,286 from five targeted 
industries, attended OR-OSHA training sessions and conferences. [18(e) 
Evaluation Report, Appendix A, SOAR Report, p. 7]
    Oregon's employer recognition programs include Voluntary Protection 
Programs, with 7 certified sites; and its Safety and Health Achievement 
Recognition Program (SHARP), with 82 sites, and 84 additional employers 
working towards SHARP. OR-OSHA also has 20 partnerships, alliances and 
other cooperative agreements.
    In 1999, the Oregon legislature enacted legislation which affords 
employers the right to withhold the results of voluntary safety and 
health self-audits conducted by private sector consultants hired by 
employers from outside their organizations. Although Federal OSHA by 
policy (65 FR 46498) does not routinely seek disclosure of such self-
audits, it does retain the authority to gain access to voluntary self-
audits where necessary to fulfill its enforcement responsibility. 
However, the Oregon legislation allows access by OR-OSHA to self-audits 
that are in any way related to the investigation of an occupational 
accident or injury; audits that are done in fulfillment of any 
requirement of an OR-OSHA standard; and discussions between employees, 
which would include records of the meetings, inspections, evaluations 
and recommendations of the workplace safety committees required in 
Oregon.

[[Page 75444]]

In a letter dated August 26, 2004, Peter De Luca, Administrator of the 
Oregon OSHA program, has explained the narrow scope of this 
legislation, the fact that it has never been invoked, and that there 
has been no negative impact on the State's ability to identify and cite 
violations. Further, Oregon has pledged to seek legislative 
reconsideration of the law should it ever negatively impact the State 
plan and its required performance. For further discussion of this 
legislation, see ``Oregon State Plan; Approval of Plan Supplements; 
Revised State Plan'' published elsewhere in today's Federal Register. 
While OSHA and the U.S. Department of Labor continue to believe that a 
self-audit privilege is inappropriate and unnecessary, such a policy in 
Oregon, as limited, does not present a sufficient basis for finding the 
State plan deficient or for withholding final approval status.

Effect of Section 18(e) Determination

    If the Assistant Secretary, after review of the written comments 
received and the results of any informal hearing if requested and held, 
determines that the statutory and regulatory criteria for State plans 
are being applied in actual operations, final approval will be granted 
and Federal standards and enforcement authority will cease to be in 
effect with respect to all issues covered by the Oregon plan (with the 
exception of temporary labor camps in both agriculture and general 
industry, including construction and logging), as provided by section 
18(e) of the Act and 29 CFR 1902.42(c). Oregon has excluded private 
sector establishments on Indian reservations and tribal trust lands, 
including tribal and Indian-owned enterprises; the U.S. Postal Service 
and its contractors; contractors on U.S. military reservations, except 
those working on U.S. Army Corps of Engineers dam construction 
projects; and private sector maritime employment on or adjacent to 
navigable waters, including shipyard operations and marine terminals. 
In addition, the plan does not have jurisdiction over Federal agencies. 
Thus, Federal coverage of these areas would be unaffected by an 
affirmative section 18(e) determination.
    In the event an affirmative section 18(e) determination is made by 
the Assistant Secretary following the proceedings described in the 
present notice, a notice will be published in the Federal Register in 
accordance with 29 CFR 1902.43; the notice will specify the issues as 
to which Federal standards and enforcement authority is withdrawn and 
provide notice that Federal authority with respect to enforcement under 
section 5(a)(1) of the Act and discrimination complaints under section 
11(c) of the Act remains in effect. The notice would state that if 
continuing evaluations show that the State has failed to maintain a 
compliance staff which meets the revised fully effective benchmarks, or 
has failed to maintain a program which is at least as effective as the 
Federal, or that the State has failed to submit program change 
supplements as required by 29 CFR Part 1953, the Assistant Secretary 
may revoke or suspend final approval and reinstate Federal enforcement 
authority or, if the circumstances warrant, initiate action to withdraw 
approval of the State plan. At the same time, Subpart D of 29 CFR Part 
1952, which codifies OSHA decisions regarding approval of the Oregon 
plan, would be amended to reflect the section 18(e) determination if an 
affirmative determination is made.

Documents of Record

    All information and data presently available to OSHA relating to 
the Oregon section 18(e) proceeding have been made a part of the record 
in this proceeding and placed in the OSHA Docket Office. Most of these 
documents have been posted electronically on OSHA's Docket Office Home 
Page at http://dockets.osha.gov. The contents of the record are also 
available for inspection and copying at the following locations: OSHA 
Docket Office, Room N-2625, Docket No. T-027A, U.S. Department of 
Labor, 200 Constitution Avenue NW., Washington, DC 20210, (202) 693-
2350; Office of the Regional Administrator, U.S. Department of Labor--
OSHA, 1111 Third Avenue, Suite 715, Seattle, Washington 98101-3212, 
(206) 553-5930, fax (206) 553-6499; and Department of Consumer and 
Business Services, Oregon Occupational Safety and Health Division, 350 
Winter Street NE., Room 430, Salem, OR 97310, (503) 378-3272, fax (503) 
947-7461. To date, the record on final approval determination includes 
copies of all Federal Register documents regarding the plan (other than 
standards approvals), including notices of plan submission, initial 
Federal approval, certification of completion of developmental steps, 
codification of the State's operational status agreement, and other 
plan supplements. The record also includes: the State plan document 
(submitted September 2003 and updated through August 2004), which 
includes a plan narrative, State legislation, regulations and 
procedures, and an organizational chart for State staffing; the State's 
FY 2004 and FY 2005 Federal grants; and the October 1, 2002 through 
September 30, 2003 18(e) Evaluation Report and all previous, post-
certification evaluation reports (since 1983).

Public Participation

Request for Public Comment and Opportunity To Request Hearing

    The Assistant Secretary is directed under Sec.  1902.41 to make a 
decision whether an affirmative section 18(e) determination is 
warranted. As part of the Assistant Secretary's decision-making 
process, consideration must be given to the application and 
implementation by Oregon of the requirements of section 18(c) of the 
Act and all specified criteria and indices of effectiveness as 
presented in 29 CFR 1902.3 and 1902.4. These criteria and indices must 
be considered in light of the factors in 29 CFR 1902.37(b)(1) through 
(15). However, this action will be taken only after all the information 
contained in the record, including OSHA's evaluation of the actual 
operations of the State plan, and information presented in written 
submissions and during an informal public hearing, if held, is reviewed 
and analyzed. OSHA is soliciting public participation in this process 
so as to assure that all relevant information, views, data and 
arguments related to the indices, criteria and factors presented in 29 
CFR Part 1902, as they apply to Oregon's State plan, are available to 
the Assistant Secretary during this administrative proceeding.
    Interested persons are invited to submit written data, views, and 
comments with respect to this proposed section 18(e) determination. 
These comments must be received on or before January 18, 2005, and 
submitted in duplicate to the Docket Officer, Docket No. T-027A, U.S. 
Department of Labor, Room N-2625, 200 Constitution Avenue NW., 
Washington, DC 20210. Written submissions must clearly identify the 
issues which are addressed and the positions taken with respect to each 
issue. Comments limited to 10 pages or fewer may also be transmitted by 
FAX to: (202) 693-1648, provided that the original and one copy of the 
comment are sent to the Docket Office immediately thereafter. 
Electronic comments may be submitted through the Internet at http://dockets.osha.gov. The State of Oregon will be afforded the opportunity 
to respond to each submission.
    Pursuant to 29 CFR 1902.39(f), interested persons may request an 
informal hearing concerning the proposed section 18(e) determination. 
Such requests also must be received on

[[Page 75445]]

or before January 18, 2005, and should be submitted in duplicate to the 
Docket Officer, Docket No. T-027A, at the address noted above. Such 
requests must present particularized written objections to the proposed 
section 18(e) determination. The Assistant Secretary will decide within 
30 days of the last day for filing written views or comments and 
requests for a hearing whether the objections raised are substantial 
and, if so, will publish notice of the time and place of the scheduled 
hearing.
    The Assistant Secretary will, within a reasonable time after the 
close of the comment period or after the certification of the record if 
a hearing is held, publish his decisions in the Federal Register. All 
written and oral 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 requests for hearing and all 
materials submitted in response to this notice and at any subsequent 
hearing, will be available for 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.

Federalism

    Executive Order 13132, ``Federalism,'' emphasizes consultation 
between Federal agencies and the States and establishes specific review 
procedures the Federal government must follow as it carries out 
policies which affect State or local governments. OSHA has included in 
the Background section of today's request for public comments a 
detailed explanation of the relationship between Federal OSHA and the 
State plan States under the Occupational Safety and Health Act. 
Although it appears that the specific consultation procedures provided 
in section 6 of Executive Order 13132 are not mandatory for final 
approval decisions under the OSH Act, which neither impose a burden 
upon the State nor involve preemption of any State law, OSHA has 
nonetheless consulted extensively with Oregon throughout the period of 
18(e) evaluation. OSHA has reviewed the Oregon final approval decision 
proposed today, and believes it is consistent with the principles and 
criteria set forth in the Executive Order.

Regulatory Flexibility Act

    OSHA certifies pursuant to the Regulatory Flexibility Act of 1980 
(5 U.S.C. 601 et seq.) that this determination will not have a 
significant economic impact on a substantial number of small entities. 
Final approval would not place small employers in Oregon 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, Occupational Safety and Health Administration.

(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 65008, October 22, 2002).

    Signed at Washington, DC, this 10th day of December, 2004.
John L. Henshaw,
Assistant Secretary.
[FR Doc. 04-27565 Filed 12-15-04; 8:45 am]
BILLING CODE 4510-26-P