[Federal Register Volume 69, Number 241 (Thursday, December 16, 2004)]
[Notices]
[Pages 75446-75450]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27566]



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

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration


Oregon State Plan; Approval of Plan Supplements; Revised State 
Plan

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Approval; supplements to Oregon occupational safety and health 
state plan.

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SUMMARY: This document gives notice of OSHA's approval of supplements 
to Oregon's occupational safety and health state plan. These 
supplements were submitted in September 2003 as a revised state plan 
and later updated through August 2004. OSHA is approving the revised 
state plan, which updates and documents all structural components of 
the Oregon program. This includes a revised narrative description of 
the current program, legislation, administrative rules, interagency 
jurisdictional agreements, a compliance manual, policy directives, a 
consultation manual, and a technical manual relating to the Oregon 
state plan. (Oregon's safety and health standards are approved in 
separate notices.)

DATES: Effective Date: December 16, 2004.

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, OSHA, U.S. Department of 
Labor, 200 Constitution Avenue, NW., Room N-3700, Washington, DC 20210; 
telephone (202) 693-2244. You may access many of Oregon's documents 
referenced in this Federal Register notice by visiting the state's Web 
site at www.cbs.state.or.us/external/osha. Electronic copies of this 
Federal Register notice, as well as all OSHA Federal Register notices 
and related press releases mentioned in this document, are available on 
OSHA's Web site at www.osha.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    The Oregon Occupational Safety and Health State Plan was initially 
approved under section 18(b) of the Occupational Safety and Health Act 
of 1970 (29 U.S.C. 667(b)) (hereinafter referred to as the OSH Act) and 
29 CFR Part 1902 on December 22, 1972 (37 FR 28628). The exercise of 
concurrent federal enforcement jurisdiction was suspended on January 
23, 1975 (40 FR 18427). The program was subsequently certified as 
having completed all its developmental steps and being structurally 
complete on September 15, 1982 (47 FR 42105). 29 CFR Part 1953 provides 
procedures for the review and approval of state plan change supplements 
by the Assistant Secretary of Labor for Occupational Safety and Health 
(hereinafter referred to as the Assistant Secretary).

II. Description of Revised State Plan

    Oregon submitted a revised state plan document on September 17, 
2003, and later updated it through August, 2004. The revised state plan 
includes a program narrative and current copies of all key documents 
relating to Oregon's occupational safety and health program. All these 
documents are described below and are being approved in this notice, 
with the exception of Oregon's safety and health standards, which are 
addressed in separate Federal Register approval notices--the most 
recent being March 1, 2004 (69 FR 9643).

A. Plan Narrative

    The Oregon state plan is administered by the Oregon Division of 
Occupational Safety and Health (OR-OSHA) of the Department of Consumer 
and Business Services. OR-OSHA was established in 1973 by the Oregon 
Safe Employment Act (Oregon Act). OR-OSHA adopts and enforces 
occupational safety and health standards under authority of the Oregon 
Act that are at least as effective as Federal OSHA's, and covers both 
private sector and state and local government employees. The plan 
narrative provides a general overview of OR-OSHA's legal authority 
(including interagency and jurisdictional agreements), standards and 
variances, enforcement policies and procedures, management systems, 
voluntary compliance activities (including compliance assistance 
programs, expanded consultative services, and training and education), 
an occupational safety and health laboratory, personnel policies and 
procedures, recordkeeping and reporting requirements, budget, staffing 
and funding, and programs and services for which there is no direct 
federal parallel.

B. Legislation

    The Oregon Safe Employment Act, Oregon Revised Statutes (ORS) 
section 654, 2001 Edition, was most recently amended at ORS 654.035 in 
2003 by House Bill 3010 concerning fall protection in steel erection. 
The Oregon Act contains authority for inspections, right of entry, 
citations and proposed penalties for first instance violations, 
employee rights, non-discrimination, compliance assistance, etc., all 
of which have been determined to provide authority equivalent to that 
of the OSH Act and to meet the criteria and indices for plan approval 
contained in 29 CFR part 1902.
    The Oregon Safe Employment Act contains a number of differences or 
additional requirements from the OSH Act. The more significant of these 
are listed below. Items 1, 3, 5 and 9 contain differences from federal 
statute or policy; the remaining items (2, 4, 6-8 and 10-13) reflect 
additional state requirements.
    1. Private Right of Action for Discrimination. An employee who 
files a discrimination complaint for protected safety and health 
activities may also file a suit in any circuit court in Oregon under 
certain circumstances, per ORS 654.062(5)(b). (See discussion of 
discrimination program differences in section II.C, Regulations.)
    2. Red Warning Notice. A red warning notice provision at ORS 
654.082 allows OR-OSHA to prohibit use of a machine, equipment or place 
of employment in imminent danger or other situations if use would 
violate a statute, rule or standard, with a civil penalty up to $5,000 
against any person who violates this provision (ORS 654.086(g)). 
Federal OSHA does not have red warning notice authority, but can obtain 
a temporary restraining order from U.S. district court in an imminent 
danger situation.
    3. Failure to Post Penalty. The civil penalties section provides 
for a discretionary posting requirements penalty of up to $1,000 (ORS 
654.086(f)), compared to federal statutory authority for a mandatory 
posting penalty of up to $7,000. In practice, federal OSHA cites for 
not posting a citation or annual summary of injuries and illnesses, but 
usually does not issue a citation for failure to post the OSHA poster. 
OSHA's average initial penalties for posting violations range from $51 
to $1200. Oregon has established minimum penalties for such violations 
which in some cases exceed the federal. (See penalties discussion in 
section II.C, Regulations.) Although Oregon lacks the parallel 
statutory authority, in practice it does not appear that this 
negatively impacts the Oregon program.
    4. Loss Control Programs. All insurers for workers' compensation 
must provide free safety and health loss control consultative services. 
Self-insured employers must implement safety and

[[Page 75447]]

health loss control programs (ORS 654.097).
    5. Self-Audits. The Oregon Act was amended in 1999 to include, for 
the first time, a provision permitting employers to withhold from OR-
OSHA certain voluntary safety and health consultation reports (ORS 
654.101). The federal statute does not have a corresponding provision, 
although federal OSHA has adopted a policy (65 FR 46498) under which 
it, like Oregon OSHA, does not routinely request self-audit reports and 
does not use such reports to identify hazards for purposes of an 
inspection. Federal OSHA does, however, retain the authority to gain 
access to voluntary self-audits when necessary to fulfill its 
enforcement responsibilities.
    The Oregon statute generally permits an employer to refuse to 
disclose, and to prevent other persons from disclosing, safety and 
health consultation reports. However, the employer may disclose such a 
report voluntarily. The law also contains some expansive exceptions to 
the employer's right to refuse. First, reports that an employer is 
required to prepare under an OR-OSHA rule or standard or as a matter of 
law, e.g., PSM process hazard analyses, construction accident 
prevention program evaluations, medical monitoring records, and many 
others, are not protected and are available to OR-OSHA. Second, OR-OSHA 
has access, under the statute, to any reports that stem from the 
investigation of occupational accidents, illnesses, or diseases. OR-
OSHA interprets this exception to apply even if the scope of the 
investigation or report is broader than the particular circumstances of 
the accident, illness or disease that generated the audit in the first 
place. Third, the privilege afforded by the statute is limited to 
reports prepared by private outside consultants; any reports or 
discussions generated by an employer's own employees are subject to 
disclosure to OR-OSHA. And fourth, Oregon's self-audit provision does 
not apply in the context of criminal investigations or prosecutions for 
alleged violations of the Oregon Act. Notably, in an August 26, 2004 
letter from Peter De Luca, Administrator, to Richard Terrill, Regional 
Administrator--X, which has been incorporated into the revised state 
plan being approved today, OR-OSHA adopted broad interpretations of 
each of these four exemptions. The state plan explained that because of 
the broad exemptions in the self-audit provision, the privilege 
afforded by the law has only very limited practical application.
    Moreover, Oregon requires most employers to establish and maintain 
safety committees, and those committees are required by law and by 
regulation to keep minutes of their meetings and to include, in those 
minutes, information about workplace hazard assessments. See ORS 
654.176 and 182, and OAR 437-001-0765. So even if a particular 
consultant's report is protected by the self-audit privilege, OR-OSHA 
can generally obtain all of the information it needs about that report 
through the agency's rights to interview employees and to access 
records of the company's safety committee meetings, inspections, 
evaluations and recommendations.
    The state plan has represented to federal OSHA that because of the 
law's broad exemptions, and because of Oregon's unique safety committee 
rules, the self-audit provision has not in any way impeded OR-OSHA's 
ability to effectively enforce the Oregon Act. Indeed, in the five 
years since the self-audit provision was added to the Oregon statute, 
not a single employer has invoked its protections--and no willful 
violations have been jeopardized. OR-OSHA estimates that most self-
audits are available to the agency. Therefore, while federal OSHA 
continues to believe that a self-audit privilege is inappropriate and 
unnecessary, Oregon's very limited privilege does not present a 
sufficient basis for finding that the right of entry and inspection 
under the state plan is any less effective than what is provided for in 
section 8 of the federal OSH Act. OR-OSHA has pledged to seek 
legislative reconsideration of the law if it is found, in the future, 
to have a negative impact on the state plan or its required 
performance.
    6. Toilets. Flushable toilets plus washing facilities must be 
provided at large construction projects costing $1 million or more (ORS 
654.150 and 160).
    7. High Voltage Lines. No employer shall require an employee to 
work bare-handed or rubber-gloved on high voltage lines (ORS 654.165).
    8. Safety Committees. Every public or private employer of more than 
10 employees must establish and administer a safety committee. 
Employers with 10 or fewer employees with a high lost workday case rate 
or high workers' compensation premium rate must also establish safety 
committees (ORS 654.176 and 182). Although Oregon does not have a 
standard mandating safety and health programs, the committees are 
expected to evaluate accident and illness prevention programs.
    9. Grants. OR-OSHA administers an occupational safety and health 
grant program that awards grants, funded from civil penalties, to 
employer or employee organizations to develop employee training 
programs and promote the development of employer-sponsored safety and 
health programs (ORS 654.189 and 191).
    10. Hazard Communication. Piping systems must be labeled about 
hazardous chemicals contained in the system or about asbestos used as a 
pipe insulation material, and every employer must post a sign informing 
employees about their right to information on hazardous substances in 
their workplace (ORS 654.196).
    11. Scholarships. OR-OSHA provides Workers' Memorial Scholarships 
for the education of spouses and children of fatally or seriously 
injured workers. These scholarships are funded from the interest earned 
on a special account established by statute using $250,000 from civil 
penalties (ORS 654.200).
    12. Agricultural Workers. Agricultural employers must give their 
employees basic safety and health information developed by OR-OSHA in a 
variety of languages (ORS 654.770 and 780.)
    13. Criminal Willful Penalties. Oregon's criminal willful penalties 
provisions contain two provisions in addition to those found in the OSH 
Act. A willful violation in Oregon that ``materially contributed to the 
death of any employee'' may also be subject to criminal prosecution, as 
well as a willful violation that results in death. Oregon also includes 
a definition of a ``willful'' violation at ORS 654.991(1) as one 
committed ``* * * knowingly by an employer or supervisory employee who, 
having a free will or choice, intentionally or knowingly disobeys or 
recklessly disregards the requirements of a regulation, rule, standard 
or order.''

C. Regulations

    1. General Administration. OR-OSHA's General Administrative Rules, 
Oregon Administrative Rules (OAR) section 437 Division 1, were most 
recently amended by OR-OSHA Administrative Order 6-2003, adopted and 
effective November 26, 2003. They parallel federal OSHA regulations at 
29 CFR part 1903 on inspections, citations and proposed penalties; 29 
CFR part 1904 on injury/illness recordkeeping and reporting; and 29 CFR 
part 1905 on variances. These Oregon rules have been determined to be 
at least as effective as OSHA's and continue to meet the indices and 
criteria of plan approval contained in 29 CFR part 1902. The main 
differences concern penalties and recordkeeping. In addition, Oregon's 
administrative rules contain requirements for workplace safety 
committees and for loss prevention

[[Page 75448]]

activities by workers' compensation insurers and self-insured employers 
that federal OSHA does not have, as well as a training grant program 
funded by civil penalty money.
     Penalties. Unlike OSHA's rules or policies, Oregon's 
penalties rules at OAR 437-001-0135 to 0203 establish a mandatory 
minimum proposed penalty for repeat violations ($200) as well as 
optional minimum penalties of $200 for failure to post a citation or 
annual summary and $100 for failure to post the OSHA poster. (Both 
agencies have a $100 minimum penalty for serious violations.) Unlike 
OSHA, OR-OSHA's rules also require penalties of $100-$5,000 for red tag 
violations, $250-$2,500 for field sanitation violations, and a civil 
penalty of $100-$2,500 for making false statements (in addition to 
criminal penalties identical to OSHA's). Penalty calculation methods 
are addressed in detail in Oregon's compliance policy manual. (See 
discussion in section II.E.)
     Recordkeeping. As required by 29 CFR 1904.37, Oregon's 
recordkeeping requirements at OAR 437-001-0700 through 0742 are the 
same as federal OSHA's concerning which injuries and illnesses are 
recordable and how they are recorded. Oregon's rules contain slight 
differences in wording, do not employ the federal question/answer 
format, and include two non-mandatory appendices concerning hearing 
loss recording criteria. 1904.37 also provides that other state 
recordkeeping provisions may be more stringent or include supplemental 
requirements. In addition to the federal requirements for reporting a 
fatality or the hospitalization of three or more employees within 8 
hours, Oregon requires the reporting of any overnight hospitalization 
within 24 hours. In conjunction with its bloodborne pathogens standard 
(OAR 437-002-1035), Oregon requires all employers to maintain a 
needlestick sharps injury log. (Federal OSHA does not require a sharps 
log for employers who are otherwise partially exempt from the 1904 
recordkeeping requirements due to small size or type of industry.)
    2. Settlement and Abatement. Oregon's rules for Contested Cases, at 
OAR 438-085, have been amended through WCB 3-1997, adopted December 12, 
1997, effective March 1, 1998. These rules are administered by the 
Workers' Compensation Board, which handles appeals of Oregon OSHA 
citations and penalties. This regulation parallels 29 CFR parts 2200-
2499, ``Occupational Safety and Health Review Commission'', and has 
been determined to provide at least as effective procedures for review 
and adjudication of contested cases. There are two differences. Under 
OAR 438-085-0305, the Workers' Compensation Board defers action on a 
Request for Hearing for 90 days while OR-OSHA continues to seek 
informal settlement--unless there is an express waiver of participation 
in OR-OSHA's informal settlement conference process. Like Oregon, 
federal OSHA continues to seek an informal settlement after an appeal 
is filed before the Review Commission, but there is no specified 
deferral period to encourage settlement before the case is reviewed by 
an administrative law judge. In addition, for serious or willful 
violations, the filing of an appeal in Oregon (unlike OSHA) has no 
effect upon the start of the abatement period. The employer must begin 
abating the alleged violation during this 90 day period.
    3. Non-discrimination. Discrimination Rules at OAR 839 Division 3 
(``Civil Rights Complaint Procedures''), Division 4 (``Retaliation for 
Opposition to Health and Safety Hazards''), and Division 50 
(``Contested Case Hearing Rules''), adopted by the Oregon Bureau of 
Labor and Industries (BOLI), were last revised by BLI Administrative 
Order 10-2002, adopted and effective May 17, 2002 (Divisions 3 & 4) and 
by BLI Administrative Order 2-2000, adopted and effective January 27, 
2000 (Division 50). These rules to protect workers from discrimination 
for engaging in protected safety and health activities under the Oregon 
Act are administered by the Civil Rights Division of the Bureau of 
Labor and Industries through an agreement with Oregon OSHA. (BOLI 
investigates complaints under all of Oregon's civil rights laws.) If 
BOLI is unable to reach a settlement in a merit (``substantial 
evidence'') case, it issues formal charges and presents the case before 
a BOLI hearing examiner (administrative law judge) who prepares a final 
order issued by the Commissioner of Labor. BOLI can enforce a 
settlement agreement or Commissioner's order through the courts if the 
employer does not voluntarily comply. These discrimination rules 
parallel OSHA's rules at 29 CFR 1977 and have been determined to 
provide at least as effective procedures for review and adjudication of 
safety and health discrimination complaints. There are, however, 
several differences. All BOLI settlements are required to be no-fault 
(OAR 839-003-0055(2)(a)). In addition, BOLI lacks the authority to 
settle cases unilaterally (e.g., with just the employer). BOLI 
dismisses the complaint if the employer is willing to settle but the 
complainant is not (OAR 839-003-0050(3) and -0055(2)). However, the 
complainant can then invoke a private right of action and file a civil 
suit in state court (OAR 839-003-0020(2)). A civil suit may be filed 
subsequent to a complaint being filed with BOLI. However, under Oregon 
law, a person filing a civil suit initially waives the right to later 
file an administrative complaint with BOLI. Under OSHA, there is no 
private right of action in federal court for alleged discrimination.

D. Interagency Agreements

    Oregon OSHA currently has 11 jurisdictional agreements with other 
state and federal agencies. The latest is an April 9, 2004 interagency 
agreement with federal OSHA Region X on emergency response in the event 
of a natural disaster or terrorist event. Other agreements with OSHA 
are Oregon's Operational Status Agreement, which delineates the areas 
of federal enforcement in the state; and an agreement concerning the 
Umatilla Chemical Agent Disposal Facility. Oregon OSHA also has chosen 
to implement national agreements signed by federal OSHA with various 
other federal agencies. In addition, Oregon OSHA has signed agreements 
for coordination of enforcement with the U.S. Environmental Protection 
Agency (worker protection standard, Clean Air Act) and with these state 
agencies: Bureau of Labor and Industries (discrimination and farm 
worker camps), Department of Environmental Quality (asbestos), Fire 
Marshall (fire and hazardous materials), Department of Agriculture 
(pesticides), and the Oregon Health Division (ionizing radiation).

    Note: Two interagency agreements with the Oregon Department of 
Agriculture and with the U.S. Environmental Protection Agency 
concern pesticides enforcement and are considered by OSHA to be 
outside of the Oregon state plan. OSHA's section 23(g) grant 
restrictions prohibit the expenditure of federal or matching state 
funds for programs coming within the jurisdiction of and/or funded 
by another federal agency, including pesticides enforcement in 
agriculture.

E. Manuals and Directives

    1. Compliance Manual. OR-OSHA's Field Inspection Reference Manual 
(FIRM) was issued July 1, 1995, re-issued January 1, 2003, and revised 
through Change 1, September 1, 2003. Oregon's compliance manual 
parallels federal OSHA's current FIRM, issued September 26, 1994, and 
other federal implementing compliance policy directives. It has been 
determined to

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provide at least as effective policy and procedures for the conduct of 
OR-OSHA's enforcement program and continues to meet the criteria and 
indices for plan approval contained in 29 CFR 1902. The Oregon FIRM 
provides guidance to the OR-OSHA compliance staff concerning pre-
inspection procedures (inspection scheduling and priorities, complaints 
and other unprogrammed inspections, inspection preparation), inspection 
procedures (conduct of the inspection, opening conference, physical 
examination of the workplace, follow-up inspections, fatality/
catastrophe investigations, imminent danger investigations, 
construction inspections), inspection documentation (types of 
violations, violation of general duty clause, writing citations, 
grouping and combining of violations), post-inspection procedures 
(abatement, citations, penalties, post-citation process), and 
disclosure (policy and procedures, specific guidelines). In addition, 
program directives establish detailed compliance procedures on a number 
of issues. (See section II.E.2.)
     Penalty calculation. 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 (from $300 to $1,250 for a 
serious violation, vs. federal $1,500 to $5,000), 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 and other 
differences in penalty calculation result in lower average penalties in 
Oregon, no deficiencies in program operations attributable to these 
differences have been noted. Oregon believes that its practice of 
conducting much more frequent inspections 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.
     Orders to Correct. In addition to issuing citations, 
Oregon issues ``Orders to Correct'' to require correction of safety and 
health hazards 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. Oregon's use 
of Orders to Correct in most circumstances is comparable to OSHA's De 
Minimis Violations, where the employer complies with the clear intent 
of a standard but deviates from its particular requirements in a manner 
that has no direct or immediate relationship to employee safety or 
health.
     Multi-employer guidelines. Oregon's different Multi-
Employer Workplace Citation Guidelines, effective January 1, 2003 and 
re-issued March 8, 2004, are referenced in OR-OSHA's FIRM but are 
contained in a stand-alone enforcement guidance document posted on the 
OR-OSHA website that has been determined to be at least as effective as 
OSHA's policy (OSHA Instruction CPL 2-0.124, December 10, 1999). Under 
OR-OSHA's guidelines, only employers that have direct knowledge of the 
hazardous conditions and exercise, or have the right to exercise, 
direct control over the work practices of employees who could 
reasonably have been exposed to such conditions may be cited. The 
federal policy is broader and also allows citations for employers 
responsible for correcting a hazard. However, Oregon's guidelines 
encourage the use of Orders to Correct for employers who are not cited.
    2. Program Directives. OR-OSHA Program Directives, as updated 
through May, 2004, provide guidance to Oregon compliance officers to 
enforce and interpret standards and administrative rules, and have been 
found to be at least as effective as OSHA's program guidance documents 
and continue to meet the indices and criteria of 29 CFR part 1902. 
While most Oregon program directives concern the enforcement of 
individual standards, 26 directives provide broader compliance guidance 
for the operation of the Oregon state plan, covering issues such as 
citing corporate officers; egregious violations; paperwork and written 
program violations; process for splitting violations; complaint 
policies and procedures; inspection criteria (for construction and 
logging safety inspections, for random construction inspections and for 
temporary employment and leasing agencies); inspection exemptions for 
small agricultural employers; scheduling lists for safety and health 
inspections; state-wide settlement agreements; video and audio tapes 
case file documentation guidelines; independent contractors, LLCs, 
partnerships and corporate officers; jurisdictional issues and 
agreements; local emphasis programs (agriculture and reforestation 
worker housing, falls in construction, field sanitation, and struck-by 
hazards in logging); special emphasis programs (silicosis, lead in 
construction); safety and health program review; and tuberculosis.
    3. Consultation Manual. OR-OSHA's Consultative Services Reference 
Guide, dated February 5, 2002, parallels OSHA's Consultation Policies 
and Procedures Manual issued August 6, 2001 and contains provisions as 
established by 29 CFR part 1908. Oregon's consultation manual has been 
found to be at least as effective as OSHA's and meets the indices and 
criteria of 29 CFR part 1902. Oregon operates an on-site consultation 
program for small private sector employers pursuant to section 21(d) of 
the federal OSH Act which is staffed by 4 consultants and is separate 
from its OSHA-approved state plan. In addition, as also documented in 
OR-OSHA's consultation manual, Oregon operates a separate consultation 
program funded with 100% state funds and staffed by 32 consultants 
which provides similar services to both private and public sector 
employers but does not conform to all of the requirements of the 
federal program, including required abatement of serious hazards. 
Because of these differences, the private sector aspect of this program 
is not considered a part of the approved state plan but is evaluated to 
the extent appropriate to assure it has no negative impact on the 
effectiveness of the approved state plan.
    4. Technical Manual. The Oregon Technical Manual, updated through 
April, 2001, is a reference document that is also part of Oregon's 
revised state plan. It is identical to the OSHA Technical Manual (OSHA 
Instruction TED 1-0.15A, January 20, 1999) except for section 1, 
sampling, which was updated by the state in 2001 to reflect

[[Page 75450]]

its current laboratory practices. The Technical Manual provides 
technical information to OR-OSHA compliance officers on occupational 
safety and health topics to assist them in hazard recognition and to 
provide guidance in accident prevention. Topics addressed include 
sampling and measurement methods, health hazards (polymers, indoor air, 
ventilation, heat stress, noise, lasers), safety hazards (oil well 
derricks, petroleum refining, pressure vessel guidelines, industrial 
robots), construction operations (demolition, excavations, lead 
exposure), health care facilities, ergonomics, and chemical protective 
clothing.

F. Budget and Personnel

    The revised Oregon state plan contains the current FY 2005 grant 
application for the Oregon program which includes an organization chart 
and detailed information on staffing and funding. The Oregon plan is 
currently funded at $5,105,000 in initial federal section 23(g) funds, 
$5,105,000 in matching state funds, and $8,394,237 in 100% state funds, 
for a total initial federal and state award of $18,604,237. OR-OSHA has 
a staff of 184 with 52 safety and 28 health compliance officers, 2 
safety and 2 health consultants funded under 21(d), and 19 safety and 
13 health consultants in a 100% state-funded program. The approved 
compliance staffing benchmarks for the Oregon program pursuant to a 
1978 court order in AFL-CIO v. Marshall (C.A. No. 74-406) are 47 safety 
and 28 health. OR-OSHA personnel are employed under a merit system in 
compliance with Oregon law, personnel rules, and the state's collective 
bargaining contract with the Oregon Public Employees Union.

III. Decision

    After careful review and consideration, the Oregon revised state 
plan and its components described above are found to be in substantial 
conformance with comparable federal provisions and in some cases to go 
beyond federal requirements and are hereby approved under 29 CFR Part 
1953 as providing a revised state plan for the development and 
enforcement of standards which continues to be ``at least as effective 
as'' the federal program, as required by section 18(b) of the OSH Act. 
The right to reconsider this approval is reserved should substantial 
objections or other information become available to the Assistant 
Secretary regarding any of the plan change's components. OSHA's 
decision today incorporates the requirements and implementing 
regulations applicable to state plans generally.

IV. Location of Basic State Plan Documentation

    Copies of the revised Oregon state plan are maintained at the 
following locations; specific documents are available upon request. 
Contact the 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; Oregon 
Occupational Safety and Health Division, Department of Consumer and 
Business Services, Salem, Oregon 97310, (503) 378-3272, fax (503) 947-
7461; and the Office of State Programs, Directorate of Cooperative and 
State Programs, Occupational Safety and Health Administration, 200 
Constitution Avenue, NW, Room N3700, Washington, D.C. 20210, (202) 693-
2244, fax (202) 693-1671.
    Most of the Oregon revised state plan documents referenced above 
are posted on the state's Web site at www.cbs.state.or.us/external/osha. Oregon's contested cases rules at OAR 438-085 are posted on the 
state of Oregon's rules Web site at http://arcweb.sos.state.or.us/rules/alpha_index.html, under Department of Consumer and Business 
Services, Workers' Compensation Board. The Bureau of Labor and 
Industries' discrimination rules at OAR 839-003, 839-004 and 839-050 
may be accessed through the same Web site.
    An electronic copy of this Federal Register notice and related 
press release are available on OSHA's Web site, www.osha.gov.

V. Public Participation

    Under 29 CFR 1953.6(c), OSHA generally ``will seek public comment 
if a State program component differs significantly from the comparable 
Federal program component and OSHA needs additional information on its 
compliance with the criteria in section 18(c) of the Act, including 
whether it is at least as effective as the Federal program * * *''. 
Based on the information presently available, the Assistant Secretary 
finds that the Oregon revised state plan described above is consistent 
with federal requirements and with commitments contained in the plan 
and previously made available for public comment. Public participation 
for the purpose of providing additional information about the 
effectiveness of the Oregon state plan is therefore unnecessary. 
Moreover, all legislative and regulatory components of the revised plan 
as well as many of the policy documents were adopted under procedural 
requirements of state law, which included appropriate opportunity for 
public participation. Good cause is therefore found for approval of 
these supplements (which constitute the revised state plan), and 
further public participation would be repetitious and unnecessary.

    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 65008, October 22, 2002).

    Signed in Washington, DC, this 10th day of December, 2004.
John L. Henshaw,
Assistant Secretary.
[FR Doc. 04-27566 Filed 12-15-04; 8:45 am]
BILLING CODE 4510-26-P