[Federal Register Volume 88, Number 48 (Monday, March 13, 2023)]
[Notices]
[Pages 15458-15462]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05075]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
[Docket No. OSHA-2023-005]
Oregon State Plan for Occupational Safety and Health; Proposed
Final Approval, Request for Public Comment, and Notice of Opportunity
To Request Informal Public Hearing
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Proposed final approval for separable portion of State Plan;
request for written comments; notice of opportunity to request informal
public hearing.
-----------------------------------------------------------------------
SUMMARY: This document gives notice of the eligibility of the Oregon
State occupational safety and health plan (State Plan) for
determination under Section 18(e) of the Occupational Safety and Health
Act of 1970 as to whether final approval of the State Plan over
temporary labor camps should be granted. This notice of eligibility for
an 18(e) determination applies only to coverage of temporary labor
camps and does not affect or disturb the previous grant of final
approval in 2005 as to all other issues covered by the Oregon State
Plan. If an affirmative determination under section 18(e) is made, the
Federal standard and enforcement authority will no longer apply to
temporary labor camps.
DATES:
Written comments: Comments and requests for an informal hearing
must be received by April 17, 2023.
Informal public hearing: Any interested person may request an
informal hearing concerning the final approval of the State Plan over
temporary labor camps. OSHA will hold such a hearing if the Assistant
Secretary of Labor for Occupational Safety and Health (Assistant
Secretary) finds that substantial objections have been filed. After the
close of the comment period, the Assistant Secretary will review all
comments submitted; will review all hearing requests; and will schedule
an informal hearing if a hearing is required.
Publication in Oregon: No later than 10 days following the date of
publication of this notice in the Federal Register, Oregon shall
publish, or cause to be published, reasonable notice within the State
containing the same information contained herein.
ADDRESSES:
Written comments: You may submit written comments or requests for
an informal hearing, identified by Docket No. OSHA-2023-005,\1\
electronically at www.regulations.gov, which is the Federal e-
Rulemaking Portal. Follow the online instructions for making electronic
submissions.
---------------------------------------------------------------------------
\1\ Documents submitted to the docket by OSHA or stakeholders
are assigned document identification numbers (Document ID) for easy
identification and retrieval. The full Document ID is the docket
number plus a unique four-digit code.
---------------------------------------------------------------------------
Instructions: All submissions must include the agency's name and
the docket number for this rulemaking (Docket No. OSHA 2023-005). All
comments, including any personal information you provide, are placed in
the public docket without change and may be made available online at
www.regulations.gov. Therefore, OSHA cautions commenters about
submitting information they do not want made available to the public or
submitting materials that contain personal information (either about
themselves or others), such as Social Security Numbers and birthdates.
Submissions must clearly identify the issues addressed and the
positions taken.
Docket: To read or download comments or other material in the
docket, go to Docket No. OSHA-2023-005 at www.regulations.gov. All
comments and submissions are listed in the www.regulations.gov index;
however, some information (e.g., copyrighted material) is not publicly
available to read or download through that website. All comments and
submissions are available for inspection and, where permissible,
copying, by appointment, at the OSHA Docket Office. Contact the OSHA
Docket Office, U.S. Department of Labor; telephone: (202) 693-2350 (TTY
number: (877) 889-5627).
Electronic copies of this Federal Register document are available
at www.regulations.gov. Other information about the Oregon State Plan
is posted on the State's website at https://osha.oregon.gov.
FOR FURTHER INFORMATION CONTACT:
For press inquiries: Contact Frank Meilinger, Director, Office of
Communications, U.S. Department of Labor; telephone (202) 693-1999;
email: Meilinger.Francis2@dol.gov.
For general and technical information: Contact Douglas J.
Kalinowski, Director, OSHA Directorate of Cooperative and State
Programs, U.S. Department of Labor; telephone (202) 693-2200; email:
Kalinowski.Doug@dol.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Section 18 of the Occupational Safety and Health Act of 1970, 29
U.S.C. 651 et seq. (``OSH Act'' or ``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 (``State Plan'' or
``Plan''). Procedures for State Plan submission and approval are set
forth in regulations at 29 CFR part 1902. If the Assistant Secretary of
Labor for Occupational Safety and Health (``Assistant Secretary'')
finds that the State Plan satisfies, or will satisfy, the criteria set
forth in Section 18(e) of the Act and 29 CFR 1902.3 and 1902.4,
``initial approval'' is granted.\2\
---------------------------------------------------------------------------
\2\ Section 18(c) provides: The Secretary shall approve the plan
submitted by a State under subsection (b), or any modification
thereof, if such plan in his judgement--(1) designates a State
agency or agencies as the agency or agencies responsible for
administering the plan throughout the State, (2) provides for the
development and enforcement of safety and health standards relating
to one or more safety or health issues, which standards (and the
enforcement of which standards) are or will be at least as effective
in providing safe and healthful employment and places of employment
as the standards promulgated under section 6 which relate to the
same issues, and which standards, when applicable to products which
are distributed or used in interstate commerce, are required by
compelling local conditions and do not unduly burden interstate
commerce, (3) provides for a right of entry and inspection of all
workplaces subject to the Act which is at least as effective as that
provided in section 8, and includes a prohibition on advance notice
of inspections, (4) contains satisfactory assurances that such
agency or agencies have or will have the legal authority and
qualified personnel necessary for the enforcement of such standards,
(5) gives satisfactory assurances that such State will devote
adequate funds to the administration and enforcement of such
standards, (6) contains satisfactory assurances that such State
will, to the extent permitted by its law, establish and maintain an
effective and comprehensive occupational safety and health program
applicable to all employees of public agencies of the State and its
political subdivisions, which program is as effective as the
standards contained in an approved plan, (7) requires employers in
the State to make reports to the Secretary in the same manner and to
the same extent as if the plan were not in effect, and (8) provides
that the State agency will make such reports to the Secretary in
such form and containing such information, as the Secretary shall
from time to time require (29 U.S.C. 667(c)).
---------------------------------------------------------------------------
A state may commence operations under its Plan after the initial
approval determination is made, but the Assistant Secretary retains
discretionary concurrent Federal authority over occupational safety and
health issues covered by the Plan during the initial approval period as
provided by Section 18(e) of the Act. OSHA regulations provide that in
states with initially-approved Plans, OSHA and the state enter into an
operational status agreement describing the division of
responsibilities between them and suspending concurrent Federal
authority, as deemed appropriate (29 CFR 1954.3).
If, after a period of no less than three years, the Assistant
Secretary determines that the State Plan has satisfied and continues to
meet all criteria in Section 18(e) of the OSH Act, the Assistant
Secretary may make an affirmative determination under Section 18(e) of
the Act (referred to as ``final approval'' of the State Plan), which
results in the relinquishment of concurrent Federal authority 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 in 29 CFR part 1902, subpart D. In general, to
be granted final approval, actual operation of the occupational safety
and health Plan by the state must be at least as effective as the
Federal OSHA program in all areas covered under the State Plan.
II. History of the Present Proceedings
A. Final Approval of the Oregon State Plan Except as to Temporary Labor
Camps
The Oregon State Plan, administered by the Oregon Department of
Consumer and Business Services, received initial approval on December
28, 1972 (37 FR 28628). On January 23, 1975, OSHA and the State of
Oregon entered into an Operational Status Agreement (OSA), which
suspended the exercise of concurrent Federal authority in Oregon
in all except specifically identified areas (40 FR 18427). 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 for all
issues covered by the Plan, with the exception of temporary labor camps
in agriculture, general industry, construction, and logging. The notice
stated that the issue of temporary labor camps was being excluded from
final approval at that time pending resolution of OSHA's concerns
regarding the effectiveness of Oregon's temporary labor camps
standards.
After allowing a period for comment, the Assistant Secretary
subsequently granted the Oregon State Plan final approval on May 12,
2005, with respect to all issues covered by the Plan except temporary
labor camps (70 FR 24947). In granting final approval, the Assistant
Secretary made an affirmative determination that the Oregon State Plan
had applied and implemented, in actual operations, each of the criteria
set forth in Section 18(e) of the Act and 29 CFR 1902.37 as to all
portions of the State Plan except temporary labor camps. The Assistant
Secretary's findings discussed, among other things, standards,
variances, enforcement, the public employee program, staffing and
resources, records and reports, voluntary compliance, and injury/
illness rates. The Assistant Secretary determined that as to each
matter, the State Plan was at least as effective as the Federal program
and met the statutory and regulatory requirements for final approval.
As a result of this affirmative determination under Section 18(e)
of the Act, OSHA's standards and enforcement authority over all
worksites covered by the Oregon State Plan (except temporary labor
camps) was relinquished. The OSA, effective January 23, 1975, and as
amended, effective December 12, 1983 and November 27, 1991, was
superseded by the grant of final approval, except that it continued to
apply to temporary labor camps in agriculture, general industry,
construction, and logging.
B. Oregon's Temporary Labor Camps Standards
OSHA had originally approved the Oregon State Plan's Temporary
Labor Camps standard on October 1, 1976 (41 FR 43485), concluding that
the standard was at least as effective as the comparable Federal
standard. The standard remained substantively unchanged until 2000,
when the Oregon State Plan, on its own initiative through
Administrative Order 5-2000, adopted revisions to the State's
Agricultural Labor Housing (ALH) and Related Facilities standard
(Division 4/J, OAR 437-004-1120) and the Labor Camps standard (Division
2/J, OAR 437-002-0142). Some of the updates to the rules included
regrouping subjects into more logical categories, synchronizing with
the Oregon Building Codes Division, and changing requirements for
garbage and refuse, emergency exits, bedding, and ratios of toilet,
handwashing, and bathing facilities.
OSHA responded to the Oregon State Plan on February 28, 2001,
identifying instances in which OSHA had concerns that the State's
standards were less effective than the comparable Federal rules. Over
the next several years, OSHA, the Wage and Hour Division (WHD),\3\ and
the Oregon State Plan continued to engage on this matter in order to
resolve the identified concerns.
---------------------------------------------------------------------------
\3\ In January 1997, the Secretary of the Department of Labor
issued Secretary's Orders 5-96 (62 FR 107) and 6-96 (62 FR 111),
transferring some of OSHA's authority to enforce the Federal Field
Sanitation standard (29 CFR 1928.110) and Temporary Labor Camps
standard (29 CFR 1910.142) to what would later become WHD (see 74 FR
58836). Accordingly, WHD had an interest in the Oregon State Plan's
temporary labor camps enforcement activity and OSHA consequently
sought WHD's input in evaluating the standards.
---------------------------------------------------------------------------
While those conversations were ongoing, OSHA and the Oregon State
Plan began the separate process of Section 18(e) final approval with
the issuance of a Federal Register notice on December 16, 2004 (69 FR
75436). However, as noted above, the proposed grant of final approval
excluded temporary labor camps due to OSHA's then-unresolved concerns
regarding the effectiveness of Oregon's temporary labor camps
standards. The 2004 notice of eligibility for final approval provided
that OSHA intended to work with Oregon to resolve all effectiveness
issues with regard to its two temporary labor camps standards so that
final approval could be extended to all covered issues (69 FR 75438).
After further informal discussions with OSHA and WHD, along with
feedback from its stakeholders, the Oregon State Plan subsequently
filed changes to its ALH and Related Facilities and Temporary Labor
Camps standards on March 24, 2008 (Administrative Order 4-2008), to
make the rules as effective as Federal OSHA's. Some of the major
changes to the ALH and Related Facilities rule (OAR 437-004-1120)
included updated requirements for: space and ceiling heights (with
effective dates of 2018 in some cases); screens; minimum window area;
shower and sink ratios; nearby livestock operations; ground clearance;
heating equipment; water pressure; laundry facilities; garbage pickup;
and privy distance from housing. References to tents were also removed.
For the Temporary Labor Camps rule (OAR 437-002-0142), Oregon removed
the entire text of the rule and added new language stating that the ALH
and Related Facilities rule at OAR 437-004-1120 applies to general
industry, construction, and forest activities as well as agriculture,
except for a few limited paragraphs that address certain camp
registration and closure requirements. Following further communication
with OSHA, Oregon subsequently made additional changes to the ALH and
Related Facilities rule on January 26, 2009 (Administrative Order 1-
2009), to reflect changes in heater technology, clarify effective
dates, and to require enclosed, screened shelters for cooking and
eating facilities.
All changes promulgated by Oregon Administrative Orders 4-2008 and
1-2009 were effective as of January 1, 2018. On August 21, 2018, at the
quarterly monitoring meeting, the Oregon State Plan Administrator
requested that OSHA review and consider removal of the temporary labor
camps exception to the State Plan's 18(e) final approval status. WHD
approved the changes on December 3, 2020, and the OSHA X regional
office approved the rule and recommended removal of the temporary labor
camps exception to Oregon's 18(e) final approval status on December 18,
2020.\4\
---------------------------------------------------------------------------
\4\ OSHA's December 18, 2020 approval letter referenced only
Oregon's ALH and Related Facilities standard, OAR 437-004-1120.
However, OSHA intended to also approve the separate Temporary Labor
Camps standard, OAR 437-002-0142, which is identical to the ALH and
Related Facilities standard except as to certain limited provisions.
Accordingly, the OSHA X regional office sent a subsequent approval
letter on May 5, 2022, to clarify that the general industry
provisions for temporary labor camps addressed by Administrative
Order 4-2008 were also approved.
---------------------------------------------------------------------------
Subsequently, on May 9, 2022, in response to a March 10, 2020
Executive Order issued by Oregon Governor Kate Brown, the Oregon State
Plan adopted new ``Rules to Address Employee and Labor Housing Occupant
Exposure to High Ambient Temperatures'' (pursuant to Administrative
Order 3-2022), to take effect on June 15, 2022. Specifically,
Administrative Order 3-2022 established a new Heat Illness Prevention
standard applicable to general industry workers (OAR 437-002-0156),
established a new Heat Illness Prevention standard applicable to
agricultural workers (OAR 437-004-1131), and amended Oregon's ALH and
Related Facilities standard (OAR 437-
004-1120) to add new provisions on heat illness prevention in labor
housing. OSHA approved this state-initiated change on June 3, 2022,
finding the rules to be at least as effective as and more stringent
than Federal requirements.
III. Determination of Eligibility
This Federal Register document announces the eligibility of the
Oregon State Plan for a final approval determination under Section
18(e) as to temporary labor camps in agriculture, general industry,
construction, and logging. 29 CFR 1902.39(c) requires that notice of
this determination of eligibility be published in order to seek public
input prior to the Assistant Secretary's decision.
Pursuant to 29 CFR 1902.37(a), the Assistant Secretary, as part of
the final approval process, must determine if the State has applied and
implemented all the specific criteria and indices of effectiveness of
Sec. Sec. 1902.3 and 1902.4. The Assistant Secretary must make this
determination by considering the factors set forth in Sec. 1902.37(b).
As documented in the 2004 notice of eligibility for final approval (69
FR at 75438) and the 2005 notice of final approval (70 FR 24947), the
Assistant Secretary has already published findings and conclusions as
to the vast majority of the specific criteria identified in Sec. Sec.
1902.3, 1902.4, and 1902.37(b), none of which are presently at issue.
Accordingly, the only determination at issue now is whether the Oregon
State Plan's temporary labor camps standards are at least as effective
as the Federal standards, such that final approval should be extended
to that coverage area (see generally Sec. Sec. 1902.3(c)(1),
1902.4(b), and 1902.37(b)(3) and (b)(4)).
OSHA is satisfied that the Oregon State Plan's amended temporary
labor camps standards, as summarized above, indicate that the
applicable regulatory indices and criteria are being met. The Assistant
Secretary accordingly has made an initial determination that the Oregon
State Plan is eligible for an affirmative Section 18(e) determination
as to temporary labor camps. The determination of eligibility is based
upon OSHA's findings that the criteria of Section 18(c) of the Act are
being applied in actual operation in a manner at least as effective as
the Federal program.
OSHA's regulations provide that after making an initial
determination of eligibility for final approval, a notice must be
published in the Federal Register and interested parties must be
provided an opportunity to submit in writing, data, views, and
arguments on the proposed 18(e) determination within 35 days after
publication (29 CFR 1902.39(e)). Further, the regulations provide that
any interested person or the affected State may request an informal
hearing on the proposed affirmative 18(e) determination whenever
particularized written objections thereto are filed, and that OSHA must
afford an opportunity for an informal hearing if the Assistant
Secretary finds that substantial objections have been filed (29 CFR
1902.39(f)-(g)). In order to encourage the submission of informed and
specific public comment, OSHA encourages commenters to review the
documents contained in Docket No. OSHA-2023-005, which can be accessed
electronically at www.regulations.gov, and to review Oregon's amended
ALH and Related Facilities standard (Division 4/J, OAR 437-004-1120)
and Labor Camps standard (Division 2/J, OAR 437-002-0142), available to
the public on the State's website at https://osha.oregon.gov.
IV. Effect of Section 18(e) Determination
If the Assistant Secretary, after review of any written comments
received and the results of any informal hearing if requested and held,
determines that the statutory and regulatory criteria applicable to the
Oregon State Plan's temporary labor camps standards are being applied
in actual operations, final approval will be granted and Federal
standards and enforcement authority will cease to be in effect with
respect to temporary labor camps, as provided by Section 18(e) of the
Act and 29 CFR 1902.42(c). In the event an affirmative Section 18(e)
determination is made by the Assistant Secretary following the
proceedings described in the present notice, a notice will be published
in the Federal Register in accordance with 29 CFR 1902.43. The notice
will specify the issues as to which Federal standards and enforcement
authority are withdrawn. The notice will also state that if continuing
evaluations show that the State has failed to maintain a program which
is at least as effective as the Federal program, or that the State has
failed to submit program change supplements as required by 29 CFR part
1953, the Assistant Secretary may revoke or suspend final approval and
reinstate Federal enforcement authority or, if the circumstances
warrant, initiate action to withdraw approval of the State Plan.
V. Documents of Record
All information and data presently available to OSHA relating to
this Section 18(e) proceeding have been made a part of the record in
this proceeding and placed in the OSHA Docket Office. These documents
have also been posted electronically at www.regulations.gov, which is
the Federal e-Rulemaking portal. The contents of the record and all
comments and submissions are available for inspection and, where
permissible, copying, by appointment, at the OSHA Docket Office;
telephone: (202) 693-2350 (TTY number: (877) 889-5627).
The contents of the record are also available for in-person
inspection by contacting: Office of the Regional Administrator, U.S.
Department of Labor--OSHA: telephone: (206) 757-6700, fax: (206) 757-
6705; and Department of Consumer and Business Services, Oregon
Occupational Safety and Health Division: telephone: (503) 378-3272,
fax: (503) 947-7461.
To date, the record on this final approval determination includes:
Oregon Administrative Order 5-2000; OSHA's letter to Oregon OSHA dated
February 28, 2001; Oregon Administrative Order 4-2008 and related
documentation; OSHA's letter to Oregon OSHA dated October 3, 2008;
Oregon Administrative Order 1-2009 and related documentation; OSHA's
memo to Wage and Hour Division recommending approval dated November 26,
2019; Wage and Hour Division's memo to OSHA concurring with approval
dated December 3, 2020; OSHA's letter to Oregon OSHA approving AO 4-
2008 and AO 1-2009 in agriculture dated December 18, 2020; OSHA's
letter to Oregon OSHA clarifying approval of AO 4-2008 in general
industry, dated May 5, 2022; Oregon Administrative Order 3-2022 and
related documentation; and OSHA's letter to Oregon OSHA approving
Administrative Order 3-2022, dated June 3, 2022.
VI. Public Participation
The Assistant Secretary's decision whether to grant an affirmative
18(e) determination to the Oregon State Plan for labor camps coverage
will be made after careful consideration of all relevant information
presented in the rulemaking. To aid the Assistant Secretary in making
this decision, OSHA is soliciting public participation in this process.
Interested parties are encouraged to submit all relevant information,
views, data, and arguments related to the indices, criteria, and
factors presented in 29 U.S.C. 667(c) and 29 CFR part 1902, as they
apply to the Oregon State Plan's temporary labor camps coverage.
Notice in the State of Oregon: Oregon is required to publish
reasonable notice of the contents of this Federal Register notice
within the State no later than 10 days following the date of
publication of this notice (29 CFR 1902.39(c)).
Written comments: OSHA invites interested persons to submit written
data, views, and comments with respect to this proposal to grant an
affirmative Section 18(e) determination of the Oregon State Plan's
temporary labor camps coverage. When submitting comments, persons must
follow the procedures specified above in the sections titled DATES and
ADDRESSES. Submissions must clearly identify the issues addressed and
the positions taken. Comments received by the end of the specified
comment period will become part of the record and will be available for
public inspection and copying at the OSHA Docket Office, as well as
online at www.regulations.gov (Docket Number OSHA-2023-005). As
required by OSHA's regulations, the State of Oregon will be afforded
the opportunity to respond to each submission before the Assistant
Secretary makes a final decision (29 CFR 1902.39(e)).
Informal public hearing: Pursuant to 29 CFR 1902.39(f), interested
persons may request an informal hearing concerning the proposed Section
18(e) determination. Such requests also must be received on or before
April 17, 2023. Such requests must present particularized written
objections to the proposed Section 18(e) determination. OSHA will hold
the informal hearing if the Assistant Secretary finds that substantial
objections have been filed (29 CFR 1902.39(g)). As required by
regulation, the Assistant Secretary will decide whether an informal
hearing is warranted within 30 days of the last day for filing written
views or comments and, if so, will publish notice of the time and place
of the scheduled hearing at that time. Commenters should note that a
request for an informal hearing and a particularized written objection
to the proposal is not the same as a substantial objection and OSHA
will only hold a hearing if the Assistant Secretary finds that
substantial objections have been filed. The Assistant Secretary will
consider all written comments submitted when determining whether a
substantial objection has been filed.
Certification of the hearing record and Assistant Secretary final
decision: Within a reasonable time after the close of the comment
period (if no hearing is held) or after the certification of the record
(if a hearing is held), after consideration of all relevant information
which has been presented, the Assistant Secretary will publish a
decision on the proposed affirmative 18(e) determination over temporary
labor camps in the Federal Register (29 CFR 1902.41(a)).
VII. Federalism
Executive Order 13132, ``Federalism,'' emphasizes consultation
between Federal agencies and the States and establishes specific review
procedures the Federal government must follow as it carries out
policies which affect state or local governments. OSHA has included in
the Background section of today's request for public comments an
explanation of the relationship between Federal OSHA and the State
Plans under the OSH Act. Although the specific consultation procedures
provided in section 6 of Executive Order 13132 are not mandatory for
final approval decisions under the OSH Act because they neither impose
a burden upon the state nor involve preemption of any state law, OSHA
has nonetheless consulted extensively with Oregon on the matter of
final approval as to temporary labor camps.
VIII. Regulatory Flexibility Act
OSHA certifies pursuant to the Regulatory Flexibility Act of 1980
(5 U.S.C. 601 et seq.) that this proposed final approval determination,
if finalized, will not have a significant economic impact on a
substantial number of small entities. Final approval of Oregon's
temporary labor camps coverage 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.
Authority and Signature
Douglas L. Parker, Assistant Secretary of Labor for Occupational
Safety and Health, U.S. Department of Labor, 200 Constitution Ave. NW,
Washington, DC, authorized the preparation of this notice. OSHA is
issuing this notice under the authority specified by Section 18 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 667), Secretary
of Labor's Order No. 8-2020 (85 FR 58393 (Sept. 18, 2020)), and 29 CFR
parts 1902 and 1956.
Signed in Washington, DC, on February 28, 2023.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2023-05075 Filed 3-10-23; 8:45 am]
BILLING CODE 4510-26-P
