[Federal Register Volume 88, Number 167 (Wednesday, August 30, 2023)]
[Rules and Regulations]
[Pages 59793-59796]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18717]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1952
Oregon State Plan; Extension of Final Approval of a State Plan To
Cover the Separable Portion of Temporary Labor Camps
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Notification of extending final approval of a State Plan over a
separable portion.
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SUMMARY: This document gives notice of final approval of the Oregon
State occupational safety and health plan (State Plan) over temporary
labor camps under section 18(e) of the Occupational Safety and Health
Act of 1970 (OSH Act). As a result of this affirmative 18(e)
determination, the Federal standard and enforcement authority as
derived from the OSH Act will no longer apply to temporary labor camps
in Oregon. This notification does not affect or disturb any other
provisions or standards enforced by the U.S. Department of Labor's Wage
and Hour Division at temporary labor camps in Oregon pursuant to an
authority other than the OSH Act. This notification also does not
affect or disturb the previous grant of final approval in 2005 as to
all other issues covered by the Oregon State Plan.
DATES: The notification of extension of final approval is effective
August 30, 2023.
FOR FURTHER INFORMATION CONTACT:
For press inquiries: Contact Frank Meilinger, OSHA 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 (OSH
Act), 29 U.S.C. 667, provides that states which wish to assume
responsibility for developing and enforcing their own occupational
safety and health standards may do so by submitting, and obtaining
Federal approval of, a state plan (State Plan or Plan). State Plan
approval occurs in stages, beginning with initial approval under
section 18(c) of the Act. If, after a period of no less than three
years following initial approval, 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. State Plan History
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 a notification (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
notification 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 public 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. In doing so,
the Assistant Secretary considered various elements of the state Plan,
including standards, variances, enforcement measures, the public
employee program, staffing and resources, records and reports,
voluntary compliance, and injury/illness rates, finding the State Plan
had effectively applied and implemented each of those elements. Thus,
the Assistant Secretary determined, 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 initially 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 certain definitions to more closely match
those of other state regulatory agencies such as 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),\1\ and
the Oregon State Plan continued to engage on this matter in order to
resolve the identified concerns.
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\1\ 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.
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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 notification 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 notification 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 rules and recommended removal of the temporary
labor camps exception to Oregon's 18(e) final approval status on
December 18, 2020.\2\
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\2\ 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.
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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.
C. Solicitation of Public Comment and Summary of Comments Received
On March 13, 2023, OSHA published in the Federal Register a notice
announcing the Oregon State Plan's eligibility for a final approval
determination under section 18(e) as to temporary labor camps in
agriculture, general industry, construction, and logging (88 FR 15458).
The March 13, 2023, notice invited interested persons to submit, by
April 17, 2023, written comments and views regarding the Oregon State
Plan and whether final approval over temporary labor camps should be
granted. An opportunity to request an informal public hearing by the
same date was also provided. To assist and encourage public
participation in the 18(e) determination, a summary of the March 13,
2023 notice, with an invitation for public comments, was published in
Oregon on April 1, 2023, in the Oregon Bulletin.\3\
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\3\ After OSHA publishes a Federal Register notice announcing a
State Plan's eligibility for an 18(e) determination, OSHA's
regulations at 29 CFR 1902.39(c) require that the State publish
reasonable notice containing the same information within the State
no later than ten days following the Federal Register publication.
Oregon's notice in this instance was published nine days late.
However, prior to the Federal Register publication, Oregon had
notified OSHA that it would only be able to publish notice in the
Oregon Bulletin on the first of the month in the month immediately
following Federal Register publication. Moreover, OSHA is not aware
of any party that was prejudiced by this slightly delayed State
publication, nor has there been any request for additional time to
provide public comment or other attempt to provide public comment
after the April 17, 2023 deadline.
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In response to the March 13, 2023 proposal, OSHA received one
comment, which supported the proposal, and no requests for an informal
hearing. The one comment submitted was from Chuck Stribling, Chair of
the Occupational Safety and Health State Plan Association (OSHSPA).
OSHSPA is an organization of twenty-nine State Plans and U.S.
Territories that have OSHA-approved State Plans. OSHSPA members work
together to advance occupational safety and health in their respective
States and Territories. OSHSPA also partners with OSHA, as well as many
others, on key issues and concerns which impact employee safety and
health. The comment stated that OSHSPA strongly supports OSHA's
proposal to grant final approval to the Oregon State Plan over
temporary labor camp enforcement authority in agriculture, general
industry, construction, and logging. The comment further noted OSHSPA's
observation that the Oregon State Plan temporary labor camp
requirements are more protective than OSHA's requirements.
III. Decision
In accordance with section 18(e) of the Act and the procedures in
29 CFR part 1902, and after opportunity for public comment, the
Assistant Secretary has considered all of the facts and comments
presented in the record. Based on that record, and for the reasons
described in further detail in the proposal (88 FR 15460-61), the
Assistant Secretary has determined that Oregon's occupational safety
and health program pertaining to temporary labor camps in agriculture,
general industry, construction, and logging is at least as effective as
the Federal program in actual operations 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 exception to the Oregon State Plan's
final approval for temporary labor camps in agriculture, general
industry, construction, and logging is hereby removed, effective August
30, 2023.
IV. Effect of Decision
The Assistant Secretary's determination granting final approval to
the Oregon State Plan under section 18(e) of the Act for temporary
labor camps in general industry, agriculture, construction, and logging
terminates OSHA authority for concurrent Federal enforcement over
temporary labor camps in Oregon where such authority is covered under
the Oregon State Plan, as of the effective date of this determination.
Section 18(e) provides that upon making this final approval
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.'' 29 U.S.C.
667(e). Accordingly, this determination relinquishes concurrent Federal
authority as derived from the OSH Act with respect to temporary labor
camps in Oregon as follows: to issue citations for violations of the
relevant Federal 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. However, the Assistant
Secretary retains jurisdiction under the above provisions in any
proceeding commenced under section 9 or 10 of the Act before the
effective date of the 18(e) determination. Finally, this determination
supersedes the OSA between OSHA and the State of Oregon, which had
remained in effect as to temporary labor camps only following the State
Plan's receipt of final approval as to all other issues in 2005 (70 FR
24955).
This final approval determination does not affect Federal authority
under provisions of the OSH Act not listed in section 18(e), nor does
it affect Federal enforcement authority over issues which are not
subject to State Plan enforcement. Additionally, this determination
does not affect or disturb the authority of the U.S. Department of
Labor's Wage and Hour Division to enforce Federal temporary labor camp
standards pursuant to an authority other than the OSH Act, such as the
Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and
WHD's regulations governing H-2A employment.
Under this 18(e) determination, Oregon will be expected to maintain
a State program that is at least as effective as operations under the
Federal program in protecting employee safety and health at covered
workplaces. 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. The right to revoke or suspend final approval
and reinstate Federal enforcement authority or, if the circumstances
warrant, initiate action to withdraw approval of the State Plan is
reserved should 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.
V. 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. 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.
VI. Regulatory Flexibility Act
OSHA certifies pursuant to the Regulatory Flexibility Act of 1980
(5 U.S.C. 601 et seq.) that this final approval determination will not
have a significant economic impact on a substantial number of small
entities. Final approval of Oregon's temporary labor camps coverage
does not place small employers in Oregon under any new or different
requirements, nor does it add any additional burden upon the State
government beyond the responsibilities already assumed as part of the
approved Plan.
Authority
Douglas L. Parker, Assistant Secretary of Labor for Occupational
Safety and Health, U.S. Department of Labor, 200 Constitution Avenue
NW, Washington, DC 20210, authorized the preparation of this document
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 part 1956.
Signed in Washington, DC.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2023-18717 Filed 8-29-23; 8:45 am]
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