Oregon State Plan; Final Approval Determination | Occupational Safety and Health Administration

Publication Date:

05/12/2005
Publication Type:

Final Rule
Fed Register #:
70:24947-24955
Standard Number:

1902

1910

1915

1917

1918

1919

1926

1952

1953

1954.3(f)

1955
Title:

Oregon State Plan; Final Approval Determination

[Federal Register: May 12, 2005 (Volume 70, Number 91)][Rules and Regulations] [Page 24947-24955]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12my05-8]

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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; Final Approval Determination

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

ACTION: Final state plan approval.

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SUMMARY: This document amends OSHA's regulations to reflect the
Assistant Secretary's decision to grant final approval to the Oregon
State Plan. As a result of this affirmative determination under Section
18(e) of the Occupational Safety and Health Act of 1970, Federal OSHA's
standards and enforcement authority no longer apply and Federal
concurrent jurisdiction is relinquished with respect to occupational
safety and health issues covered by the Oregon plan (with the exception
of temporary labor camps). Federal enforcement jurisdiction is retained
over 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.

EFFECTIVE DATE: May 12, 2005.

FOR FURTHER INFORMATION CONTACT: For general information and press
inquiries, contact Kevin Ropp, Director, 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. An electronic copy of this Federal
Register notice is available on OSHA's Web site at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Introduction

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 29 CFR 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).
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, promulgated 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 applicable to those issues covered by the state plan if 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.
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)). Procedures for
Section 18(e) determinations are found at 29 CFR part 1902, subpart D.
In general, in order to be granted final approval, actual performance
by the state must be ``at least as effective'' overall 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 in AFL-CIO v. Marshall,
C.A. No.74-406, 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.
Another 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 necessary to continually evaluate whether the
state's performance meets the statutory and regulatory criteria for
final and continuing approval.

History of the Oregon Plan and of Its Compliance Staffing Benchmarks

A history of the Oregon State Plan, a description of its
provisions, and a discussion of the compliance staffing benchmarks
established for Oregon are contained in the December 16, 2004 Federal
Register notice (69 FR 75436) proposing that final approval under
section 18(e) of the Act be granted. The Oregon State Plan was
submitted on June 6, 1972, and initially approved on December 22, 1972
(37 FR 28628, Dec. 28, 1972). Concurrent Federal enforcement
jurisdiction was suspended on January 23, 1975 (40 FR 18427, April 28,
1975). The Oregon State Plan was certified as having completed all
developmental steps on September 15, 1982 (47 FR 42105, Sept. 24,
1982), and revised compliance staffing benchmarks for Oregon were
approved on August 11, 1994 (59 FR 42493, Aug. 18, 1994).

History of the Present Proceedings

Procedures for final approval of State plans are set forth at 29
CFR part 1902, subpart D. On December 16, 2004, OSHA published notice
(69 FR 75436) that the Oregon State Plan was eligible for a determination
as to whether final approval of the plan should be granted under Section
18(e) of the Act. The determination of eligibility was based on the monitoring
of state operations for at least one year following certification, state
participation in the Federal-state Integrated Management Information System,
and staffing in accordance with the revised state compliance staffing benchmarks.
The December 16, 2004, Federal Register notice set forth a general
description of the Oregon State Plan and summarized the results of
Federal OSHA's monitoring of state operations during the period from
October 1, 2002 through September 30, 2003. In addition to the
information set forth in the notice itself, OSHA made available as part
of the record extensive and detailed exhibits documenting the plan,
including copies of the state legislation, administrative regulations,
and procedural manuals under which Oregon operates its plan.
The most recent comprehensive evaluation report covering the period
of October 1, 2002, through September 30, 2003, which was extensively
summarized in the December 16, 2004, proposal and provided the
principal factual basis for the proposed 18(e) determination, was
included in the docket.
To assist and encourage public participation in the 18(e)
determination, copies of all docket materials were available
electronically at http://dockets.osha.gov, and were maintained in the

OSHA Docket Office in Washington, DC, in the OSHA Regional Office in
Seattle, and at the Oregon Occupational Safety and Health Division in
Salem, Oregon. A summary of the December 16, 2004, notice, with an
invitation for public comments, was published in Oregon on December 17,
2004, in The Oregonian.
The December 16, 2004, notice invited interested persons to submit,
by January 18, 2005, written comments and views regarding the Oregon
plan and whether final approval should be granted. An opportunity to
request an informal public hearing also was provided. Seven comments
were received in response to this proposal; none requested an informal
hearing.

Summary and Evaluation of Comments

OSHA has encouraged interested members of the public to provide
information and views regarding operations under the Oregon plan to
supplement the information already gathered during OSHA's monitoring
and evaluation of plan administration.
In response to the December 16, 2004, proposal, OSHA received
comments from: John Kirkpatrick, Business Representative, International
Union of Painters and Allied Trades, AFL-CIO [Ex. 5-1]; Jim Geisinger,
Executive Vice President, Associated Oregon Loggers, Inc. [Ex. 5-2];
Brian Clarke, Corporate Safety Director, Hoffman Construction Companies
[Ex.5-3]; Daniel J. Sabatino, Loss Control Consultant, Safety & Risk
Management Consulting [Ex. 5-4]; Steven F. Ramsey, Loss Control
Manager, Safeway, Inc.--Portland Division [Ex. 6-1]; Lynda Enos,
Ergonomics Consultant, Human Fit [Ex. 6-2]; and Patrick M. Bridges,
Oregon Home Builders Association [Ex. 6-3]. All seven comments
expressed unqualified support for final approval. All of these comments
indicated that Oregon has established and operates a safety and health
program that effectively protects employees.
Specifically, the commenters commended the Oregon State Plan for,
among other things: (1) Making significant progress in reducing work-
related injuries; (2) having proactive and competent leadership; (3)
maintaining a compliance, consultant and technical staff that is highly
trained, very professional, accommodating, fair and technically
accurate; (4) providing excellent web-based and classroom safety
training (including for small businesses); (5) making extensive efforts
to address ergonomics and safety issues in health care facilities; (6)
developing partnerships with businesses and professional associations
to provide high quality safety and health education and injury
prevention activities and programs to employers, employees and safety
and health professionals; (7) adopting an exemplary logging code which
recognizes the unique and site-specific characteristics of the Pacific
Northwest logging industry; and (8) creating innovative committees that
provide grants to identify and create training programs for workplace
safety and health, scholarships for dependents of workers killed or
permanently disabled in workplace accidents, and funding to make
workplace modifications to improve safety.

Findings and Conclusions

As required by 29 CFR 1902.41, in considering the granting of final
approval to a state plan, OSHA has carefully and thoroughly reviewed
all information available to it on the actual operation of the Oregon
State Plan. This information has included all previous evaluation
findings since certification of completion of the state plan's
developmental steps, especially data for the period October 1, 2002
through September 30, 2003, and information presented in written
submissions. Findings and conclusions in each of the areas of
performance are as follows:
(1) Standards. 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. See also 29 CFR 1902.3(c)(1) and
1902.4(b)(2)(i)-(ii). If the state adopts standards that are not
identical to corresponding Federal standards, they must be promulgated
through a procedure allowing for the consideration of all pertinent
factual information and the participation of all interested persons (29
CFR 1902.4(b)(2)(iii)). Additionally, the state program must provide
for prompt and effective standards setting actions when necessary to
protect workers from new and unforeseen hazards, e.g., via the
authority to promulgate emergency temporary standards (29 CFR
1902.4(b)(2)(v)). State standards must protect employees from exposure
to hazards, e.g., by requiring the use of suitable protective equipment
or technological controls (29 CFR 1902.4(b)(2)(vii)). Standards dealing
with toxic materials or harmful physical agents must assure that each
exposed employee will be protected throughout his or her working life
(29 CFR 1902.4(b)(2)(i)). In addition, state standards generally must
provide for furnishing employees with appropriate information regarding
hazards in their workplaces, e.g., through labels, postings, and
medical examinations (29 CFR 1902.4(b)(2)(vi)). Where applicable to
products distributed or used in interstate commerce, state standards
that differ from Federal standards must be required by compelling local
conditions and not pose an undue burden on interstate commerce (29 CFR
1902.3(c)(2)).
In order to qualify for final state plan approval, a state program
must be found to have adhered to its approved procedures (29 CFR
1902.37(b)(2)), to have timely adopted all Federal standards or
standards that are at least as effective (29 CFR 1902.37(b)(3)), to
have interpreted and applied its standards in a manner consistent with
the Federal program (29 CFR 1902.37(b)(4)), and to have corrected any
deficiencies resulting from administrative or judicial challenges to
the state standards (29 CFR 1902.37(b)(5)).
Oregon's laws and regulations, previously approved by OSHA and made
a part of the record in this proceeding, as written and applied, are in
accord with all of the requirements for state standards set out above and
in 29 CFR part 1902. As documented in the approved Oregon State Plan and
OSHA's evaluation findings made a part of the record in this 18(e) determination
proceeding, and as discussed in the December 16, 2004, notice, the
Oregon plan provides for the adoption of standards and amendments
thereto which are either identical or equivalent to Federal standards.
And as noted in the 18(e) Evaluation Report and summarized in the
December 16, 2004 Federal Register notice, in actual operation Oregon
has adopted standards in a timely manner which are either identical to
or at least as effective as Federal standards.
Although Oregon does not automatically adopt standards which are
identical to the Federal standards, it usually adopts Federal standards
by reference and sometimes adds state-initiated provisions under its
own regulatory numbering system. Oregon OSHA (``OR-OSHA'') adopts
standards through a promulgation process that provides notification to
the public of its intent to adopt a standard. OR-OSHA publishes the
proposed standard in the Secretary of State's Bulletin, asks for
comments, and may hold hearings. After review of all comments,
appropriate revisions are made and the standard is formally adopted and
its effective date established. When OR-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
their Federal counterparts, 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 those relating to workplace
safety committees, crane operator training, thiram, reinforced plastics
manufacturing, ornamental tree and shrub services, and some forest
activities (logging) requirements.
OSHA's monitoring has found that OR-OSHA has interpreted and
applied its standards in a manner comparable to the Federal program.
There have been administrative and judicial challenges to the standards
in Oregon, but they have all been satisfactorily resolved.
Therefore, in accordance with Section 18(c)(2) of the Act and the
pertinent provisions of 29 CFR 1902.3, 1902.4 and 1902.37, OSHA finds
that the Oregon program, in actual operation, provides for standards
adoption, correction (when found deficient), interpretation, and
application at least as effective as the Federal program.
(2) Variances. A state plan is expected to have authority and
procedures for granting variances comparable to the Federal program (29
CFR 1902.4(b)(2)(iv)). The Oregon State Plan contains such provisions
in laws and regulations which have been previously approved by OSHA. In
order to qualify for final state plan approval, permanent variances
granted must assure employment equally as safe and healthful as would
be provided by compliance with the standard (29 CFR 1902.37(b)(6)).
Temporary variances granted must assure compliance as early as possible
(29 CFR 1902.37(b)(7)). As noted in the 18(e) Evaluation Report and the
December 16, 2004 notice, Oregon granted three permanent variances
during the 18(e) evaluation period, and all were processed in
accordance with state procedures and the criteria in 29 CFR part 1902.
During the Section 18(e) evaluation period, no temporary variances were
granted.
Accordingly, OSHA finds that the Oregon program is able to
effectively grant variances from its occupational safety and health
standards.
(3) Enforcement. Section 18(c)(2) of the Act and 29 CFR
1902.3(d)(1) require state programs to enforce standards in a manner
that is and will continue to be at least as effective in providing safe
and healthful employment and places of employment as the Federal
program. See also Section 18(c)(4) of the Act and 29 CFR 1902.3(g). The
state must require employer and employee compliance with all applicable
standards, rules and orders (29 CFR 1902.3(d)(2)) and must have the
legal authority for standards enforcement, including compulsory process
(29 CFR 1902.4(c)(2)).
The Oregon occupational safety and health statutes and implementing
regulations, previously approved by OSHA, establish employer and
employee compliance responsibility and contain legal authority for
standards enforcement in terms at least as effective as those in the
Federal Act. In order to be qualified for final approval, the state
must have adhered to all approved procedures to ensure an at least as
effective compliance program (29 CFR 1902.37(b)(2)). The 18(e)
Evaluation Report indicates no significant lack of adherence to such
procedures.
(a) Inspections. In order to qualify for final approval, the state
program, as implemented, must allocate sufficient resources toward
high-hazard workplaces while providing adequate attention to other
covered workplaces (29 CFR 1902.37(b)(8)). See also 29 CFR
1902.4(c)(2)(i). Data contained in the 18(e) Evaluation Report noted
that 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 is
focused on reducing silica exposures, lead in construction exposures,
and fall hazards. The state has targeted inspections in the following
industries with high rates of injuries and illnesses: Agriculture,
construction, lumber/wood, food/kindred products, and health care.
During the period from October 2002 through September 2003, 76% of
Oregon's safety inspections and 44% of health inspections were
programmed. During this period, 40% of programmed safety inspections
and 25% of programmed health inspections uncovered serious, willful, or
repeat violations. This is less than the percentage of Federal
programmed inspections with serious violations; however, 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. Therefore, OSHA has
concluded that the state's inspection targeting system is satisfactory.
(b) Employee Notice and Participation in Inspections. State plans
must provide for inspections in response to employee complaints and
must provide an opportunity for employees and their representatives to
point out possible violations through such means as employee
participation during the inspection (29 CFR 1902.4(c)(2)(i)-(iii)).
Oregon has procedures similar to those used by Federal OSHA for
processing and responding to complaints and providing for employee
participation in inspections. The data indicate that during the
evaluation responding to 95% of serious safety and health complaints
by inspection within the prescribed time frame of 5 working days. In
addition, OR- OSHA provided complainants with timely response letters
94% of the time. During FY 2003, Oregon responded to 729 safety and health
complaints.
Like Federal OSHA, the state has procedures which require that
employees have an opportunity to participate in inspections, either
through representation on the walkaround or through a reasonable number
of employee interviews. No problems have been noted concerning employee
participation in Oregon inspections.
In addition, the state plan must provide that employees be informed
of their protections and obligations under the Act by such means as the
posting of notices (29 CFR 1902.4(c)(2)(iv)). Also, the state plan must
ensure that employees have access to information about their exposure
to regulated agents (29 CFR 1902.4(c)(vi)).
To inform employees and employers of their protections and
obligations, Oregon requires that a poster approved by OSHA be
displayed in all covered workplaces. Requirements for the posting of
the poster and other notices such as citations, contests, hearings and
variance applications are set forth in the previously approved state
law and regulations which are at least as effective as Federal
requirements. Information about employee exposure to regulated agents
is provided through state standards which are identical to or at least
as effective as the Federal. No problems have been noted regarding
notice of these actions to employers and employees. Therefore, OSHA has
concluded that the state's performance in this area is effective.
(c) Nondiscrimination. State plans are expected to protect
employees against discharge or discrimination for exercising their
rights under the state's program. The state program must include
provisions providing for employer sanctions and employee
confidentiality (29 CFR 1902.4(c)(2)(v)). Section 654.062(5) of the
Oregon Safe Employment Act and state regulations provide 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. OR-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. OR-OSHA is actively working with BOLI to improve case
determination timeliness, to ensure that a review of the ``prima
facie'' elements is conducted for every discrimination complaint, and
to create case file documentation whenever a decision is made not to
conduct an investigation. The administrator of the Civil Rights
Division of BOLI has expressed BOLI's commitment to addressing OSHA's
concerns. BOLI's investigations showed substantial improvement in FY
2004, when 21 of 23 cases reviewed contained ``prima facie'' analysis.
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. Therefore, OSHA concludes that
Oregon's performance in this area is satisfactory.
(d) Restraint of Imminent Danger; Protection of Trade Secrets. A
state plan is required to provide for the prompt restraint of imminent
danger situations (29 CFR 1902.4(c)(2)(vii)) and to provide adequate
safeguards for the protection of trade secrets (29 CFR
1902.4(c)(2)(viii)). The state has provisions concerning imminent
danger and protection of trade secrets in its law, regulations, and
operations manual which are at least as effective as the corresponding
federal provisions. Oregon has authority to issue a red warning notice
to prohibit the use of a machine, piece of equipment, or place of
employment in imminent danger and other situations. Oregon responded to
59 imminent danger complaints during the evaluation period, 98% of the
time within 24 hours. There were no Complaints About State Program
Administration (CASPAs) filed concerning the protection of trade
secrets during the report period.
(e) Right of Entry; Advance Notice. A state program must have a
right to enter and inspect all covered workplaces, and a compulsory
process to enforce those rights, such that its inspection authority is
equivalent to that of Federal OSHA (Section 18(c)(3) of the Act and 29
CFR 1902.3(e)). In addition, the state is expected to prohibit advance
notice of inspection, allowing exceptions thereto no broader than those
provided for under the Federal program (29 CFR 1902.3(f)). Section
654.067 of the Oregon Safe Employment Act provides for an inspector's
right to enter and inspect all covered workplaces in terms
substantially identical to those in the Federal Act. The Oregon law
also prohibits advance notice, and implementing procedures for
exceptions to this prohibition are substantially identical to the
Federal procedures.
In order to be found qualified for final approval, a state is
expected to take action to enforce its right of entry when denied (29
CFR 1902.37(b)(9)) and to adhere to its advance notice procedures.
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.
During the evaluation period, no advance notice of inspections was
given.
(f) Citations, Penalties, and Abatement. A state plan is expected
to have authority and procedures for promptly notifying employers and
employees of violations identified during inspections, for issuing
first-instance and other sanctions against employers found in violation
of standards, and for promptly notifying employers of penalties (29 CFR
1902.4(c)(2)(x) and (xi)).
In order to be qualified for final approval, the state, in actual
operation, must be found to conduct competent inspections in accordance
with approved procedures and to obtain adequate information to support
resulting citations (29 CFR 1902.37(b)(10)). The state must issue
citations, proposed penalties and failure-to-abate notifications in a
timely manner (29 CFR 1902.37(b)(11)), propose penalties for first-
instance and other violations in a manner that is at least as effective
as the Federal program (29 CFR 1902.37(b)(12)), and ensure the
abatement of hazards (including via the issuance of failure-to-abate
notices and appropriate penalties) (29 CFR 1902.37(b)(13)).
The Oregon plan, through its law, regulations, and operations
manual, has established a system, similar to the Federal program, that
provides for the prompt issuance of citations delineating violations
and establishing reasonable abatement periods, requires the posting of
such citations for employee information, and allows for the proposal of
appropriate penalties. In addition to issuing citations, the state
issues ``Orders to Correct.'' The Order to Correct carries no penalty
but requires abatement and may serve as the basis for repeated and
failure-to-abate violations. Its use is limited and occurs primarily
when a small construction employer who has failed to establish a
required safety committee agrees to implement an ``innovative'' safety
committee. It is also used to require the correction of safety and
health hazards in the rare situation when a citation cannot be issued
within 180 days and when legal estoppel issues interfere with issuing a
citation. Procedures for the Oregon occupational safety and health compliance
program are set out in the Oregon Field Inspection Reference Manual, which
has been determined to contain policies and procedures at least as effective
as those in the Federal compliance manual.
The 18(e) Evaluation Report notes overall adherence by Oregon to
its inspection procedures. Oregon cited an average of 2.9 violations
per inspection. 40% of safety and 25% of health violations were cited
as serious, willful, or repeat. The percentages of serious safety and
health violations were lower than the comparable Federal percentages,
but 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. No systemic problems
relating to violation classification have been found. The state
continues to provide compliance officers with specific training and
direction to ensure that violations are properly classified. Oregon's
lapse time from the opening conference to issuance of a citation
averaged 38 days for safety and 74 days for health. Though the state's
health citations lapse time was greater than the national average of 63
days, it dropped to 69 days by the middle of FY 2004.
Oregon's procedures for calculating penalties are different than
OSHA's. The state uses lower base penalty amounts to calculate the
probability/severity-based (gravity-based) penalty, applies different
calculations to combined or grouped violations, and applies different
calculations for penalty adjustment factors. Although these differences
result in lower average penalties in Oregon ($365 for serious
violations in FY 2003), no deficiencies in program operations
attributable to these differences were noted.
Ninety-six percent (96%) of safety violations in Oregon had
abatement periods of fewer than 30 days, and 97% of health violations
had abatement periods of fewer than 60 days. This surpasses Federal
performance.
Although an Oregon statute affords employers the right to withhold
the results of voluntary safety and health self-audits conducted by
private consultants, this self-audit privilege is very limited, has
never been invoked by employers, and has had no negative impact on the
state's ability to identify and cite violations. While OSHA and the
U.S. Department of Labor 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. See 69 FR 75446
(Dec. 16, 2004).
(g) Contested Cases. A state plan must have procedures for
employers to contest citations, penalties and abatement requirements at
full administrative or judicial hearings. Employees must have an
opportunity to participate as parties in proceedings resulting from an
employer's contest (29 CFR 1902.4(c)(2)(xii)). Oregon's contest
procedures and procedures for ensuring employees' participation rights
are contained in the law, regulations, and operations manual that have
been made a part of the record in this proceeding. The Oregon plan
provides for the review of contested cases by the Workers' Compensation
Board, an independent administrative board. Decisions of the Board may
be appealed to the Oregon Court of Appeals. OR-OSHA had fewer
violations vacated, fewer serious violations reclassified, and smaller
penalty reductions after appeal than Federal OSHA during the same
period.
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 29 CFR 1902.37(b)(14). There was no OR-OSHA
appellate level contested case activity during the evaluation 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).
(h) Enforcement Conclusion. In summary, OSHA finds that enforcement
operations provided under the Oregon plan are competently planned and
conducted, and are overall at least as effective as Federal OSHA
enforcement.
(4) Public Employee Program. Section 18(c)(6) of the Act requires
that a state with an approved plan maintain an effective and
comprehensive safety and health program applicable to all employees of
public agencies of the state and its political subdivisions. That
program must be as effective as the standards contained in an approved
plan. 29 CFR 1902.3(j) requires that a state's program for public
employees be as effective as its program for private employees covered
by the plan. The Oregon plan provides a program in the public sector
which is comparable to the private sector program, including with
respect to the assessment of penalties for serious violations. In
Oregon, injury and illness rates in the public sector are comparable to
private sector rates.
During the 18(e) evaluation period, the state conducted 4.9% of its
total inspections in the public sector, and results were comparable to
the private sector. Because Oregon's performance in the public sector
is comparable to that in the private sector, OSHA concludes that the
Oregon program meets the criteria in 29 CFR 1902.3(j).
(5) Staffing and Resources. Section 18(c)(4) of the Act requires
state plans to provide the qualified personnel necessary for the
enforcement of standards. See also 29 CFR 1902.3(h). In accordance with
29 CFR 1902.37(b)(1), one factor which OSHA must consider in evaluating
a plan for final approval is whether the state has a sufficient number
of adequately trained and competent personnel to discharge its
responsibilities under the plan.
The Oregon plan provides for 52 safety compliance officers and 28
industrial hygienists as set forth in the Oregon FY 2003 and FY 2004
grant applications. This staffing level exceeds the revised ``fully
effective'' health and safety staffing benchmarks for Oregon of 47
safety compliance officers and meets the benchmark of 28 industrial
hygienists approved by OSHA on August 11, 1994 (59 FR 42493, Aug. 18,
1994). At the close of the evaluation period, the state had 98% of
safety and 96% of health compliance officer positions filled.
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 to provide a process through which major rule
changes and shifts in technology can be addressed division-wide.
Because Oregon has allocated sufficient enforcement staff to meet
the revised benchmarks, and personnel are trained and competent, the
requirements for final approval set forth in 29 CFR 1902.37(b)(1) and
in the court order in AFL-CIO v. Marshall are being met by the Oregon
plan.
Section 18(c)(5) of the Act requires that the state devote adequate
funds to administration and enforcement of its standards. See also 29
CFR 1902.3(i). 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 initial funding for the state program in
Fiscal Year 2005 is $18,604,237. ($5,105,000 Federal, $13,499,237 state).
As noted in the 18(e) Evaluation Report, Oregon's funding exceeds
Federal requirements in absolute terms; moreover, the state allocates
its resources to the various aspects of the program in an effective
manner. On this basis, OSHA finds that Oregon has provided sufficient
funding and resources for the various activities carried out under the
plan.
(6) Records and Reports. State plans must assure that employers
submit reports to the Secretary in the same manner as if the plan were
not in effect (Section 18(c)(7) of the Act and 29 CFR 1902.3(k)). The
plan must also provide assurance that the designated agency will make
reports to the Secretary in such form and containing such information
as the Secretary may from time to time require (section 18(c)(8) of the
Act and 29 CFR 1902.3(1)).
Oregon employer recordkeeping requirements are identical to those
of Federal OSHA (including all recent Federal revisions) with regard to
the recording and reporting of injuries, illnesses and fatalities,
although they differ in other areas. The state participates in the BLS
Annual Survey of Occupational Injuries and Illnesses 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. The
state participates and 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.
For the foregoing reasons, OSHA finds that Oregon has met the
requirements of sections 18(c)(7) and (8) of the Act on employer and
state reports to the Secretary.
(7) Voluntary Compliance. A state plan is required to undertake
programs to encourage voluntary compliance by employers and employees
(29 CFR 1902.4(c)(2)(xiii)). Oregon operates an on-site consultation
program funded under Section 21(d) of the 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 OR-OSHA and, to date, no
negative impact on the Oregon State Plan has been identified.
OR-OSHA's Web site offers 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
businesses, 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.
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.
Accordingly, OSHA finds that Oregon has established and is
administering an effective voluntary compliance program.
(8) 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 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 29 CFR 1902.37(b)(15). 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), but in 2003 moved closer to the national
rate when Oregon's rate declined 6.7% (5.6 vs. 5.0 national). (Injury-
illness data for 2002 and 2003 are not directly comparable to 2001 or
prior years due to a change in OSHA's recordkeeping requirements.)
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. 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, and the accepted disabling
claims rate declined from 1.7 in 1998 to 1.5 in 2002.
OSHA finds that during the evaluation period trends in worker
injury and illness in Oregon were comparable to those in states with
federal enforcement.

Decision

OSHA has carefully reviewed the record developed during the above
described proceedings, including all comments received thereon. The
present Federal Register document sets forth the findings and
conclusions resulting from this review.

In light of all the facts presented on the record, the Assistant
Secretary has determined that, with the exception of the issue of
temporary labor camps in agriculture, general industry, construction
and logging, the Oregon State Plan for occupational safety and health,
which has been monitored for at least one year subsequent to
certification, is in actual operation at least as effective as the
Federal program and meets the statutory criteria for state plans in
Section 18(e) of the Act and implementing regulations at 29 CFR part
1902. Accordingly, the Oregon State Plan, with the exception of
temporary labor camps, is hereby granted final approval under Section
18(e) of the Act and implementing regulations at 29 CFR part 1902,
effective May 12, 2005.
Under this 18(e) determination, Oregon will be expected to maintain
a state program which will continue to be at least as effective as
operations under the Federal program in protecting employee safety and
health at covered workplaces. This requirement includes submitting all
required reports to the Assistant Secretary as well as submitting plan
supplements documenting state-initiated program changes, changes
required in response to adverse evaluation findings, and responses to
mandatory Federal program changes. In addition, Oregon must continue to
allocate sufficient safety and health enforcement staff to meet the
benchmarks for state compliance staffing established by the Department
of Labor, or any revision to those benchmarks.

Effect of Decision

The determination that the criteria set forth in Section 18(c) of
the Act and 29 CFR part 1902 are being applied in actual operations
under the Oregon plan terminates OSHA authority for federal enforcement
of its standards in Oregon with respect to those issues covered under
the state plan (with the exception of temporary labor camps in
agriculture, general industry, construction and logging). Section 18(e)
provides that upon making this determination ``the provisions of
sections 5(a)(2), 8 (except for the purpose of carrying out subsection
(f) of this section), 9, 10, 13, and 17 * * * shall not apply with
respect to any occupational safety and health issues covered under the
plan, but the Secretary may retain jurisdiction under the above
provisions in any proceeding commenced under section 9 or 10 before the
date of determination.''
Accordingly, with the exception of temporary labor camps, Federal
authority over worksites covered by the Oregon State Plan is
relinquished, as of the effective date of this determination, with
respect to the issuance of citations for violations of OSHA standards
(Sections 5(a)(2) and 9); the conduct of inspections (except those
necessary to conduct evaluations of the plan under Section 18(f), and
other inspections, investigations or proceedings necessary to carry out
Federal responsibilities which are not specifically preempted by
section 18(e)) (Section 8); the conduct of enforcement proceedings in
contested cases (Section 10); proceedings to correct imminent dangers
(Section 13); and the proposal of civil penalties and the initiation of
criminal proceedings for violations of the Act (Section 17). Because
this 18(e) determination does not cover temporary labor camps, this
action will not result in any change to present Federal enforcement
authority at those sites.
Federal authority under provisions of the Act not listed in section
18(e) is unaffected by this determination. Thus, for example, the
Assistant Secretary retains authority under section 11(c) of the Act
with regard to complaints alleging discrimination against employees
because of the exercise of any right afforded to the employee by the
Act, although such complaints may be initially referred to the state
for investigation. Any proceeding initiated by OSHA under sections 9
and 10 of the Act prior to the date of this final determination remain
under Federal jurisdiction. The Assistant Secretary also retains
authority under section 6 of the Act to promulgate, modify or revoke
occupational safety and health standards which address the working
conditions of all employees, including those in states which have
received an affirmative 18(e) determination. In the event that a
state's 18(e) status is subsequently withdrawn and Federal authority
reinstated, all Federal standards, including any standards promulgated
or modified during the 18(e) period, would be federally enforceable in
the state.
In accordance with section 18(e), this determination relinquishes
Federal OSHA authority with regard to occupational safety and health
issues covered by the Oregon plan (except for temporary labor camps),
but OSHA retains full authority over issues which are not subject to
state enforcement under the plan. Thus, for example, Federal OSHA
retains its authority to enforce all provisions of the Act, and all
Federal standards, rules or orders, as applicable to the safety or
health of employees in 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. These employers
remain subject to Federal OSHA jurisdiction. In addition, Federal OSHA
may subsequently initiate the exercise of jurisdiction over any issue
(hazard, industry, geographical area, operation or facility) for which
the state is unable to provide effective coverage for reasons which
OSHA determines are not related to the required performance or
structure of the state plan.
As provided by section 18(f) of the Act, the Assistant Secretary
will continue to evaluate the manner in which the state is carrying out
its plan. Section 18(f) and regulations at 29 CFR part 1955 provide
procedures for the withdrawal of Federal approval should the Assistant
Secretary find that the state has subsequently failed to comply with
any provision or assurance contained in the plan. Additionally, the
Assistant Secretary may initiate proceedings to revoke an 18(e)
determination and reinstate concurrent Federal authority under
procedures set forth in 29 CFR 1902.47, et seq., if the Assistant
Secretary's evaluations show that the state has substantially failed to
maintain a program which is at least as effective as operations under
the Federal program, or if the state does not submit program change
supplements to the Assistant Secretary as required by 29 CFR part 1953.
See 29 CFR 1902.43(a)(4).

Explanation of Changes to 29 CFR Part 1952

29 CFR part 1952 contains, for each state having an approved plan,
a Subpart generally describing the plan and setting forth the Federal
approval status of the plan. 29 CFR 1902.43(a)(3) requires that notices
of affirmative 18(e) determinations be accompanied by changes to part
1952 reflecting the final approval decision. This notice makes changes
to subpart D of part 1952 to reflect the final approval of the Oregon
plan.
The table of contents for part 1952, subpart D, has been revised to
reflect the following changes:
A new Section 1952.104, Final approval determination, which
formerly was reserved, has been added to reflect the determination
granting final approval of the plan. This section contains a more
accurate description of the current scope of the plan than the one contained
in the initial approval decision.
Section 1952.105, Level of Federal enforcement, has been revised to
reflect the state's 18(e) status. This replaces the former description
of the relationship of state and Federal enforcement under an
Operational Status Agreement voluntarily suspending Federal enforcement
authority, which was entered into on January 23, 1975. Section 1952.105
describes the issues over which Federal authority has been terminated,
and the issues for which it has been retained in accordance with the
discussion of the effects of the 18(e) determination set forth earlier
in the present Federal Register notice.

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.

Federalism

Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
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 Supplementary Information section
of today's final approval decision 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
Act because they 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.
This document was prepared under the direction of Jonathan L.
Snare, Acting Assistant Secretary of Labor for Occupational Safety and
Health. It is issued under Section 18 of the Occupational Safety and
Health Act of 1970, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR part 1902;
and Secretary of Labor's Order No. 5-2002 (67 FR 65008, Oct. 22, 2002).

List of Subjects in 29 CFR Part 1952

Intergovernmental relations, Law enforcement, Occupational safety
and health, Occupational Safety and Health Administration, Reporting
and recordkeeping requirements.

Signed at Washington, DC, this 2nd day of May, 2005.
Jonathan L. Snare,
Acting Assistant Secretary.

0
Part 1952 of 29 CFR is hereby amended as follows:

PART 1952--[AMENDED]

0
1. The authority citation of part 1952 is revised to read as follows:

Authority: Section 18 of the OSH Act (29 U.S.C. 667), 29 CFR
part 1902, and Secretary of Labor's Order No. 5-2002 (67 FR 65008).

Subpart D--Oregon

0
2. A new Sec. 1952.104 is added to read as follows:

Sec. 1952.104 Final approval determination.

(a) In accordance with Section 18(e) of the Act and procedures in
29 CFR Part 1902, and after determination that the state met the
``fully effective'' compliance staffing benchmarks as revised in 1994
in response to a court order of the United States District Court for
the District of Columbia in AFL-CIO v. Marshall, (C.A. No. 74-406), and
was satisfactorily providing reports to OSHA through participation in
the Federal-state Integrated Management Information System, the
Assistant Secretary evaluated actual operations under the Oregon State
Plan for a period of at least one year following certification of
completion of developmental steps. Based on an 18(e) Evaluation Report
covering the period October 1, 2002 through September 30, 2003, and
after opportunity for public comment, the Assistant Secretary
determined that, in operation, Oregon's occupational safety and health
program (with the exception of temporary labor camps in agriculture,
general industry, construction and logging) is at least as effective as
the Federal program in providing safe and healthful employment and
places of employment and meets the criteria for final state plan
approval in Section 18(e) of the Act and implementing regulations at 29
CFR part 1902. Accordingly, under Section 18(e) of the Act, the Oregon
State Plan was granted final approval and concurrent Federal
enforcement authority was relinquished for all worksites covered by the
plan (with the exception of temporary labor camps in agriculture,
general industry, construction and logging), effective May 12, 2005.
(b) Except as otherwise noted, the plan which has received final
approval covers all activities of employers and all places of
employment in Oregon. The plan does not cover 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.
(c) Oregon is required to maintain a state program which is at
least as effective as operations under the Federal program; to submit
plan supplements in accordance with 29 CFR part 1953; to allocate
sufficient safety and health enforcement staff to meet the benchmarks
for state staffing established by the U.S. Department of Labor, or any
revisions to those benchmarks; and, to furnish such reports in such
form as the Assistant Secretary may from time to time require.

0
3. Section 1952.105 is revised to read as follows:

Sec. 1952.105 Level of Federal enforcement.

(a) As a result of the Assistant Secretary's determination granting
final approval to the Oregon State Plan under Section 18(e) of the Act,
effective May 12, 2005, occupational safety and health standards which
have been promulgated under Section 6 of the Act (with the exception of
those applicable to temporary labor camps in agriculture, general
industry, construction and logging) do not apply with respect to issues
covered under the Oregon plan. This determination also relinquishes
concurrent Federal OSHA authority to issue citations for violations of
such standards under Sections 5(a)(2) and 9 of the Act; to conduct
inspections and investigations under Section 8 (except those necessary
to evaluate the plan under Section 18(f) and other inspections,
investigations, or proceedings necessary to carry out Federal
responsibilities not specifically preempted by Section 18(e)); to
conduct enforcement proceedings in contested cases under Section 10; to
institute proceedings to correct imminent dangers under Section 13; and
to propose civil penalties or initiate criminal proceedings for
violations of the Act under Section 17. The Assistant Secretary retains
jurisdiction under the above provisions in any proceeding commenced under
Section 9 or 10 before the effective date of the 18(e) determination. The
Operational Status Agreement, effective January 23, 1975, and as
amended, effective December 12, 1983 and November 27, 1991, is
superseded by this action, except that it will continue to apply to
temporary labor camps in agriculture, general industry, construction
and logging.
(b)(1) In accordance with Section 18(e), final approval
relinquishes Federal OSHA authority with regard to occupational safety
and health issues covered by the Oregon plan (with the exception of
temporary labor camps in agriculture, general industry, construction
and logging). OSHA retains full authority over issues which are not
subject to state enforcement under the plan. Thus, Federal OSHA retains
its authority relative to:
(i) Standards in the maritime issues covered by 29 CFR parts 1915,
1917, 1918, and 1919 (shipyards, marine terminals, longshoring, and
gear certification), and enforcement of general industry and
construction standards (29 CFR parts 1910 and 1926) appropriate to
hazards found in these employments, which have been specifically
excluded from coverage under the plan. This includes: Employment on the
navigable waters of the U.S.; shipyard and boatyard employment on or
immediately adjacent to the navigable waters--including floating
vessels, dry docks, graving docks and marine railways--from the front
gate of the work site to the U.S. statutory limits; longshoring, marine
terminal and marine grain terminal operations, except production or
manufacturing areas and their storage facilities; construction
activities emanating from or on floating vessels on the navigable
waters of the U.S.; commercial diving originating from an object afloat
a navigable waterway; and all other private sector places of employment
on or adjacent to navigable waters whenever the activity occurs on or
from the water;
(ii) Enforcement of occupational safety and health standards at all
private sector establishments, including tribal and Indian-owned
enterprises, on all Indian and non-Indian lands within the currently
established boundaries of all Indian reservations, including the Warm
Springs and Umatilla reservations, and on lands outside these
reservations that are held in trust by the Federal government for these
tribes. (Businesses owned by Indians or Indian tribes that conduct work
activities outside the tribal reservation or trust lands are subject to
the same jurisdiction as non-Indian owned businesses.);
(iii) Enforcement of occupational safety and health standards at
worksites located within Federal military reservations, except private
contractors working on U.S. Army Corps of Engineers dam construction
projects, including reconstruction of docks or other appurtenances;
(iv) Enforcement of occupational safety and health standards with
regard to all Federal government employers and employees; and the U.S.
Postal Service (USPS), including USPS employees, and contract employees
and contractor-operated facilities engaged in USPS mail operations.
(2) In addition, any hazard, industry, geographical area, operation
or facility over which the state is unable to effectively exercise
jurisdiction for reasons which OSHA determines are not related to the
required performance or structure of the plan shall be deemed to be an
issue not covered by the state plan which has received final approval,
and shall be subject to Federal enforcement. Where enforcement
jurisdiction is shared between Federal and state authorities for a
particular area, project, or facility, in the interest of
administrative practicability Federal jurisdiction may be assumed over
the entire project or facility. In any of the aforementioned
circumstances, Federal enforcement authority may be exercised after
consultation with the state designated agency.
(c) Federal authority under provisions of the Act not listed in
Section 18(e) is unaffected by final approval of the Oregon State Plan.
Thus, for example, the Assistant Secretary retains authority under
Section 11(c) of the Act with regard to complaints alleging
discrimination against employees because of the exercise of any right
afforded to the employee by the Act, although such complaints may be
referred to the state for investigation. The Assistant Secretary also
retains authority under Section 6 of the Act to promulgate, modify or
revoke occupational safety and health standards which address the
working conditions of all employees, including those in states which
have received an affirmative 18(e) determination, although such
standards may not be federally applied. In the event that the state's
18(e) status is subsequently withdrawn and Federal authority
reinstated, all Federal standards, including any standards promulgated
or modified during the 18(e) period, would be federally enforceable in
that state.
(d) As required by Section 18(f) of the Act, OSHA will continue to
monitor the operations of the Oregon state program to assure that the
provisions of the state plan are substantially complied with and that
the program remains at least as effective as the Federal program.
Failure by the state to comply with its obligations may result in the
suspension or revocation of the final approval determination under
Section 18(e), resumption of Federal enforcement, and/or proceedings
for withdrawal of plan approval.

[FR Doc. 05-9321 Filed 5-11-05; 8:45 am]

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