75446 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Notices 

DEPARTMENT OF LABOR

Occupational Safety and Health 

Administration 

Oregon State Plan; Approval of Plan 

Supplements; Revised State Plan

AGENCY: Occupational Safety and Health 

Administration (OSHA), Labor.

ACTION: Approval; supplements to 

Oregon occupational safety and health 

state plan. 

SUMMARY: This document gives notice of 

OSHA’s approval of supplements to 

Oregon’s occupational safety and health 

state plan. These supplements were 

submitted in September 2003 as a 

revised state plan and later updated 

through August 2004. OSHA is 

approving the revised state plan, which 

updates and documents all structural 

components of the Oregon program. 

This includes a revised narrative 

description of the current program, 

legislation, administrative rules, 

interagency jurisdictional agreements, a 

compliance manual, policy directives, a 

consultation manual, and a technical 

manual relating to the Oregon state 

plan. (Oregon’s safety and health 

standards are approved in separate 

notices.)

DATES: Effective Date: December 16, 

2004.

FOR FURTHER INFORMATION CONTACT: For 

general information and press inquiries, 

contact George Shaw, Office of 

Communications, Room N–3647, OSHA, 

U.S. Department of Labor, 200 

Constitution Avenue, NW., Washington, 

DC 20210; telephone (202) 693–1999. 

For technical inquiries, contact Barbara 

Bryant, Director, Office of State 

Programs, Directorate of Cooperative 

and State Programs, OSHA, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Room N–3700, 

Washington, DC 20210; telephone (202) 

693–2244. You may access many of 

Oregon’s documents referenced in this 

Federal Register notice by visiting the 

state’s Web site at www.cbs.state.or.us/

external/osha. Electronic copies of this 

Federal Register notice, as well as all 

OSHA Federal Register notices and 

related press releases mentioned in this 

document, are available on OSHA’s Web 

site at www.osha.gov.

SUPPLEMENTARY INFORMATION: 

I. Background 

The Oregon Occupational Safety and 

Health State Plan was initially approved 

under section 18(b) of the Occupational 

Safety and Health Act of 1970 (29 U.S.C. 

667(b)) (hereinafter referred to as the 

OSH Act) and 29 CFR Part 1902 on 

December 22, 1972 (37 FR 28628). The 

exercise of concurrent federal 

enforcement jurisdiction was suspended 

on January 23, 1975 (40 FR 18427). The 

program was subsequently certified as 

having completed all its developmental 

steps and being structurally complete on 

September 15, 1982 (47 FR 42105). 29 

CFR Part 1953 provides procedures for 

the review and approval of state plan 

change supplements by the Assistant 

Secretary of Labor for Occupational 

Safety and Health (hereinafter referred 

to as the Assistant Secretary). 

II. Description of Revised State Plan 

Oregon submitted a revised state plan 

document on September 17, 2003, and 

later updated it through August, 2004. 

The revised state plan includes a 

program narrative and current copies of 

all key documents relating to Oregon’s 

occupational safety and health program. 

All these documents are described 

below and are being approved in this 

notice, with the exception of Oregon’s 

safety and health standards, which are 

addressed in separate Federal Register

approval notices—the most recent being 

March 1, 2004 (69 FR 9643). 

A. Plan Narrative 

The Oregon state plan is administered 

by the Oregon Division of Occupational 

Safety and Health (OR–OSHA) of the 

Department of Consumer and Business 

Services. OR–OSHA was established in 

1973 by the Oregon Safe Employment 

Act (Oregon Act). OR–OSHA adopts and 

enforces occupational safety and health 

standards under authority of the Oregon 

Act that are at least as effective as 

Federal OSHA’s, and covers both 

private sector and state and local 

government employees. The plan 

narrative provides a general overview of 

OR–OSHA’s legal authority (including 

interagency and jurisdictional 

agreements), standards and variances, 

enforcement policies and procedures, 

management systems, voluntary 

compliance activities (including 

compliance assistance programs, 

expanded consultative services, and 

training and education), an occupational 

safety and health laboratory, personnel 

policies and procedures, recordkeeping 

and reporting requirements, budget, 

staffing and funding, and programs and 

services for which there is no direct 

federal parallel. 

B. Legislation 

The Oregon Safe Employment Act, 

Oregon Revised Statutes (ORS) section 

654, 2001 Edition, was most recently 

amended at ORS 654.035 in 2003 by 

House Bill 3010 concerning fall 

protection in steel erection. The Oregon 

Act contains authority for inspections, 

right of entry, citations and proposed 

penalties for first instance violations, 

employee rights, non-discrimination, 

compliance assistance, etc., all of which 

have been determined to provide 

authority equivalent to that of the OSH 

Act and to meet the criteria and indices 

for plan approval contained in 29 CFR 

part 1902. 

The Oregon Safe Employment Act 

contains a number of differences or 

additional requirements from the OSH 

Act. The more significant of these are 

listed below. Items 1, 3, 5 and 9 contain 

differences from federal statute or 

policy; the remaining items (2, 4, 6–8 

and 10–13) reflect additional state 

requirements. 

1. Private Right of Action for 

Discrimination. An employee who files 

a discrimination complaint for protected 

safety and health activities may also file 

a suit in any circuit court in Oregon 

under certain circumstances, per ORS 

654.062(5)(b). (See discussion of 

discrimination program differences in 

section II.C, Regulations.) 

2. Red Warning Notice. A red warning 

notice provision at ORS 654.082 allows 

OR-OSHA to prohibit use of a machine, 

equipment or place of employment in 

imminent danger or other situations if 

use would violate a statute, rule or 

standard, with a civil penalty up to 

$5,000 against any person who violates 

this provision (ORS 654.086(g)). Federal 

OSHA does not have red warning notice 

authority, but can obtain a temporary 

restraining order from U.S. district court 

in an imminent danger situation. 

3. Failure to Post Penalty. The civil 

penalties section provides for a 

discretionary posting requirements 

penalty of up to $1,000 (ORS 

654.086(f)), compared to federal 

statutory authority for a mandatory 

posting penalty of up to $7,000. In 

practice, federal OSHA cites for not 

posting a citation or annual summary of 

injuries and illnesses, but usually does 

not issue a citation for failure to post the 

OSHA poster. OSHA’s average initial 

penalties for posting violations range 

from $51 to $1200. Oregon has 

established minimum penalties for such 

violations which in some cases exceed 

the federal. (See penalties discussion in 

section II.C, Regulations.) Although 

Oregon lacks the parallel statutory 

authority, in practice it does not appear 

that this negatively impacts the Oregon 

program.

4. Loss Control Programs. All insurers 

for workers’ compensation must provide 

free safety and health loss control 

consultative services. Self-insured 

employers must implement safety and 

Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Notices 75447

health loss control programs (ORS 

654.097). 

5. Self-Audits. The Oregon Act was 

amended in 1999 to include, for the first 

time, a provision permitting employers 

to withhold from OR–OSHA certain 

voluntary safety and health consultation 

reports (ORS 654.101). The federal 

statute does not have a corresponding 

provision, although federal OSHA has 

adopted a policy (65 FR 46498) under 

which it, like Oregon OSHA, does not 

routinely request self-audit reports and 

does not use such reports to identify 

hazards for purposes of an inspection. 

Federal OSHA does, however, retain the 

authority to gain access to voluntary 

self-audits when necessary to fulfill its 

enforcement responsibilities. 

The Oregon statute generally permits 

an employer to refuse to disclose, and 

to prevent other persons from 

disclosing, safety and health 

consultation reports. However, the 

employer may disclose such a report 

voluntarily. The law also contains some 

expansive exceptions to the employer’s 

right to refuse. First, reports that an 

employer is required to prepare under 

an OR–OSHA rule or standard or as a 

matter of law, e.g., PSM process hazard 

analyses, construction accident 

prevention program evaluations, 

medical monitoring records, and many 

others, are not protected and are 

available to OR–OSHA. Second, OR–

OSHA has access, under the statute, to 

any reports that stem from the 

investigation of occupational accidents, 

illnesses, or diseases. OR–OSHA 

interprets this exception to apply even 

if the scope of the investigation or report 

is broader than the particular 

circumstances of the accident, illness or 

disease that generated the audit in the 

first place. Third, the privilege afforded 

by the statute is limited to reports 

prepared by private outside consultants; 

any reports or discussions generated by 

an employer’s own employees are 

subject to disclosure to OR–OSHA. And 

fourth, Oregon’s self-audit provision 

does not apply in the context of 

criminal investigations or prosecutions 

for alleged violations of the Oregon Act. 

Notably, in an August 26, 2004 letter 

from Peter De Luca, Administrator, to 

Richard Terrill, Regional 

Administrator—X, which has been 

incorporated into the revised state plan 

being approved today, OR–OSHA 

adopted broad interpretations of each of 

these four exemptions. The state plan 

explained that because of the broad 

exemptions in the self-audit provision, 

the privilege afforded by the law has 

only very limited practical application. 

Moreover, Oregon requires most 

employers to establish and maintain 

safety committees, and those 

committees are required by law and by 

regulation to keep minutes of their 

meetings and to include, in those 

minutes, information about workplace 

hazard assessments. See ORS 654.176 

and 182, and OAR 437–001–0765. So 

even if a particular consultant’s report is 

protected by the self-audit privilege, 

OR–OSHA can generally obtain all of 

the information it needs about that 

report through the agency’s rights to 

interview employees and to access 

records of the company’s safety 

committee meetings, inspections, 

evaluations and recommendations. 

The state plan has represented to 

federal OSHA that because of the law’s 

broad exemptions, and because of 

Oregon’s unique safety committee rules, 

the self-audit provision has not in any 

way impeded OR–OSHA’s ability to 

effectively enforce the Oregon Act. 

Indeed, in the five years since the selfaudit provision was added to the 

Oregon statute, not a single employer 

has invoked its protections—and no 

willful violations have been 

jeopardized. OR–OSHA estimates that 

most self-audits are available to the 

agency. Therefore, while federal OSHA 

continues to believe that a self-audit 

privilege is inappropriate and 

unnecessary, Oregon’s very limited 

privilege does not present a sufficient 

basis for finding that the right of entry 

and inspection under the state plan is 

any less effective than what is provided 

for in section 8 of the federal OSH Act. 

OR–OSHA has pledged to seek 

legislative reconsideration of the law if 

it is found, in the future, to have a 

negative impact on the state plan or its 

required performance. 

6. Toilets. Flushable toilets plus 

washing facilities must be provided at 

large construction projects costing $1 

million or more (ORS 654.150 and 160). 

7. High Voltage Lines. No employer 

shall require an employee to work barehanded or rubber-gloved on high voltage 

lines (ORS 654.165). 

8. Safety Committees. Every public or 

private employer of more than 10 

employees must establish and 

administer a safety committee. 

Employers with 10 or fewer employees 

with a high lost workday case rate or 

high workers’ compensation premium 

rate must also establish safety 

committees (ORS 654.176 and 182). 

Although Oregon does not have a 

standard mandating safety and health 

programs, the committees are expected 

to evaluate accident and illness 

prevention programs. 

9. Grants. OR–OSHA administers an 

occupational safety and health grant 

program that awards grants, funded 

from civil penalties, to employer or 

employee organizations to develop 

employee training programs and 

promote the development of employersponsored safety and health programs 

(ORS 654.189 and 191).

10. Hazard Communication. Piping 

systems must be labeled about 

hazardous chemicals contained in the 

system or about asbestos used as a pipe 

insulation material, and every employer 

must post a sign informing employees 

about their right to information on 

hazardous substances in their workplace 

(ORS 654.196). 

11. Scholarships. OR–OSHA provides 

Workers’ Memorial Scholarships for the 

education of spouses and children of 

fatally or seriously injured workers. 

These scholarships are funded from the 

interest earned on a special account 

established by statute using $250,000 

from civil penalties (ORS 654.200). 

12. Agricultural Workers. Agricultural 

employers must give their employees 

basic safety and health information 

developed by OR–OSHA in a variety of 

languages (ORS 654.770 and 780.) 

13. Criminal Willful Penalties. 

Oregon’s criminal willful penalties 

provisions contain two provisions in 

addition to those found in the OSH Act. 

A willful violation in Oregon that 

‘‘materially contributed to the death of 

any employee’’ may also be subject to 

criminal prosecution, as well as a 

willful violation that results in death. 

Oregon also includes a definition of a 

‘‘willful’’ violation at ORS 654.991(1) as 

one committed ‘‘* * * knowingly by an 

employer or supervisory employee who, 

having a free will or choice, 

intentionally or knowingly disobeys or 

recklessly disregards the requirements 

of a regulation, rule, standard or order.’’

C. Regulations 

1. General Administration. OR–

OSHA’s General Administrative Rules, 

Oregon Administrative Rules (OAR) 

section 437 Division 1, were most 

recently amended by OR–OSHA 

Administrative Order 6–2003, adopted 

and effective November 26, 2003. They 

parallel federal OSHA regulations at 29 

CFR part 1903 on inspections, citations 

and proposed penalties; 29 CFR part 

1904 on injury/illness recordkeeping 

and reporting; and 29 CFR part 1905 on 

variances. These Oregon rules have been 

determined to be at least as effective as 

OSHA’s and continue to meet the 

indices and criteria of plan approval 

contained in 29 CFR part 1902. The 

main differences concern penalties and 

recordkeeping. In addition, Oregon’s 

administrative rules contain 

requirements for workplace safety 

committees and for loss prevention 

75448 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Notices 

activities by workers’ compensation 

insurers and self-insured employers that 

federal OSHA does not have, as well as 

a training grant program funded by civil 

penalty money. 

• Penalties. Unlike OSHA’s rules or 

policies, Oregon’s penalties rules at 

OAR 437–001–0135 to 0203 establish a 

mandatory minimum proposed penalty 

for repeat violations ($200) as well as 

optional minimum penalties of $200 for 

failure to post a citation or annual 

summary and $100 for failure to post 

the OSHA poster. (Both agencies have a 

$100 minimum penalty for serious 

violations.) Unlike OSHA, OR–OSHA’s 

rules also require penalties of $100–

$5,000 for red tag violations, $250–

$2,500 for field sanitation violations, 

and a civil penalty of $100–$2,500 for 

making false statements (in addition to 

criminal penalties identical to OSHA’s). 

Penalty calculation methods are 

addressed in detail in Oregon’s 

compliance policy manual. (See 

discussion in section II.E.) 

• Recordkeeping. As required by 29 

CFR 1904.37, Oregon’s recordkeeping 

requirements at OAR 437–001–0700 

through 0742 are the same as federal 

OSHA’s concerning which injuries and 

illnesses are recordable and how they 

are recorded. Oregon’s rules contain 

slight differences in wording, do not 

employ the federal question/answer 

format, and include two non-mandatory 

appendices concerning hearing loss 

recording criteria. 1904.37 also provides 

that other state recordkeeping 

provisions may be more stringent or 

include supplemental requirements. In 

addition to the federal requirements for 

reporting a fatality or the hospitalization 

of three or more employees within 8 

hours, Oregon requires the reporting of 

any overnight hospitalization within 24 

hours. In conjunction with its 

bloodborne pathogens standard (OAR 

437–002–1035), Oregon requires all 

employers to maintain a needlestick 

sharps injury log. (Federal OSHA does 

not require a sharps log for employers 

who are otherwise partially exempt 

from the 1904 recordkeeping 

requirements due to small size or type 

of industry.) 

2. Settlement and Abatement. 

Oregon’s rules for Contested Cases, at 

OAR 438–085, have been amended 

through WCB 3–1997, adopted 

December 12, 1997, effective March 1, 

1998. These rules are administered by 

the Workers’ Compensation Board, 

which handles appeals of Oregon OSHA 

citations and penalties. This regulation 

parallels 29 CFR parts 2200–2499, 

‘‘Occupational Safety and Health 

Review Commission’’, and has been 

determined to provide at least as 

effective procedures for review and 

adjudication of contested cases. There 

are two differences. Under OAR 438–

085–0305, the Workers’ Compensation 

Board defers action on a Request for 

Hearing for 90 days while OR-OSHA 

continues to seek informal settlement—

unless there is an express waiver of 

participation in OR–OSHA’s informal 

settlement conference process. Like 

Oregon, federal OSHA continues to seek 

an informal settlement after an appeal is 

filed before the Review Commission, but 

there is no specified deferral period to 

encourage settlement before the case is 

reviewed by an administrative law 

judge. In addition, for serious or willful 

violations, the filing of an appeal in 

Oregon (unlike OSHA) has no effect 

upon the start of the abatement period. 

The employer must begin abating the 

alleged violation during this 90 day 

period. 

3. Non-discrimination. Discrimination 

Rules at OAR 839 Division 3 (‘‘Civil 

Rights Complaint Procedures’’), 

Division 4 (‘‘Retaliation for Opposition 

to Health and Safety Hazards’’), and 

Division 50 (‘‘Contested Case Hearing 

Rules’’), adopted by the Oregon Bureau 

of Labor and Industries (BOLI), were last 

revised by BLI Administrative Order 

10–2002, adopted and effective May 17, 

2002 (Divisions 3 & 4) and by BLI 

Administrative Order 2–2000, adopted 

and effective January 27, 2000 (Division 

50). These rules to protect workers from 

discrimination for engaging in protected 

safety and health activities under the 

Oregon Act are administered by the 

Civil Rights Division of the Bureau of 

Labor and Industries through an 

agreement with Oregon OSHA. (BOLI 

investigates complaints under all of 

Oregon’s civil rights laws.) If BOLI is 

unable to reach a settlement in a merit 

(‘‘substantial evidence’’) case, it issues 

formal charges and presents the case 

before a BOLI hearing examiner 

(administrative law judge) who prepares 

a final order issued by the 

Commissioner of Labor. BOLI can 

enforce a settlement agreement or 

Commissioner’s order through the 

courts if the employer does not 

voluntarily comply. These 

discrimination rules parallel OSHA’s 

rules at 29 CFR 1977 and have been 

determined to provide at least as 

effective procedures for review and 

adjudication of safety and health 

discrimination complaints. There are, 

however, several differences. All BOLI 

settlements are required to be no-fault 

(OAR 839–003–0055(2)(a)). In addition, 

BOLI lacks the authority to settle cases 

unilaterally (e.g., with just the 

employer). BOLI dismisses the 

complaint if the employer is willing to 

settle but the complainant is not (OAR 

839–003–0050(3) and –0055(2)). 

However, the complainant can then 

invoke a private right of action and file 

a civil suit in state court (OAR 839–003–

0020(2)). A civil suit may be filed 

subsequent to a complaint being filed 

with BOLI. However, under Oregon law, 

a person filing a civil suit initially 

waives the right to later file an 

administrative complaint with BOLI. 

Under OSHA, there is no private right 

of action in federal court for alleged 

discrimination. 

D. Interagency Agreements 

Oregon OSHA currently has 11 

jurisdictional agreements with other 

state and federal agencies. The latest is 

an April 9, 2004 interagency agreement 

with federal OSHA Region X on 

emergency response in the event of a 

natural disaster or terrorist event. Other 

agreements with OSHA are Oregon’s 

Operational Status Agreement, which 

delineates the areas of federal 

enforcement in the state; and an 

agreement concerning the Umatilla 

Chemical Agent Disposal Facility. 

Oregon OSHA also has chosen to 

implement national agreements signed 

by federal OSHA with various other 

federal agencies. In addition, Oregon 

OSHA has signed agreements for 

coordination of enforcement with the 

U.S. Environmental Protection Agency 

(worker protection standard, Clean Air 

Act) and with these state agencies: 

Bureau of Labor and Industries 

(discrimination and farm worker 

camps), Department of Environmental 

Quality (asbestos), Fire Marshall (fire 

and hazardous materials), Department of 

Agriculture (pesticides), and the Oregon 

Health Division (ionizing radiation).

Note: Two interagency agreements with the 

Oregon Department of Agriculture and with 

the U.S. Environmental Protection Agency 

concern pesticides enforcement and are 

considered by OSHA to be outside of the 

Oregon state plan. OSHA’s section 23(g) grant 

restrictions prohibit the expenditure of 

federal or matching state funds for programs 

coming within the jurisdiction of and/or 

funded by another federal agency, including 

pesticides enforcement in agriculture.

E. Manuals and Directives 

1. Compliance Manual. OR–OSHA’s 

Field Inspection Reference Manual 

(FIRM) was issued July 1, 1995, reissued January 1, 2003, and revised 

through Change 1, September 1, 2003. 

Oregon’s compliance manual parallels 

federal OSHA’s current FIRM, issued 

September 26, 1994, and other federal 

implementing compliance policy 

directives. It has been determined to 

Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Notices 75449

provide at least as effective policy and 

procedures for the conduct of OR–

OSHA’s enforcement program and 

continues to meet the criteria and 

indices for plan approval contained in 

29 CFR 1902. The Oregon FIRM 

provides guidance to the OR–OSHA 

compliance staff concerning preinspection procedures (inspection 

scheduling and priorities, complaints 

and other unprogrammed inspections, 

inspection preparation), inspection 

procedures (conduct of the inspection, 

opening conference, physical 

examination of the workplace, followup inspections, fatality/catastrophe 

investigations, imminent danger 

investigations, construction 

inspections), inspection documentation 

(types of violations, violation of general 

duty clause, writing citations, grouping 

and combining of violations), postinspection procedures (abatement, 

citations, penalties, post-citation 

process), and disclosure (policy and 

procedures, specific guidelines). In 

addition, program directives establish 

detailed compliance procedures on a 

number of issues. (See section II.E.2.) 

• Penalty calculation. OR–OSHA’s 

procedures for penalty calculation 

contain a number of differences from 

OSHA’s, including lower base penalty 

amounts used in calculation of a 

probability/severity-based (gravitybased) penalty (from $300 to $1,250 for 

a serious violation, vs. federal $1,500 to 

$5,000), and differences in calculations 

for combined or grouped violations and 

in penalty adjustment factors. For 

example, while federal OSHA allows a 

penalty reduction of up to 60% for 

employer size, Oregon allows a penalty 

reduction of only 10% for small 

employers. Oregon also allows penalty 

reductions for a low lost workday injury 

rate which federal OSHA does not. In 

addition, Oregon’s procedures generally 

allow a lower minimum penalty for 

failure-to-abate violations ($50 per day 

for other-than-serious and $250 per day 

for serious, with higher minimum in 

unusual circumstances, vs. federal 

policy of $1,000 per day minimum for 

either serious or other-than-serious 

unabated violations). Oregon does not 

allow penalty adjustments for repeat or 

willful violations, while OSHA allows 

an adjustment for employer size. 

Although these and other differences in 

penalty calculation result in lower 

average penalties in Oregon, no 

deficiencies in program operations 

attributable to these differences have 

been noted. Oregon believes that its 

practice of conducting much more 

frequent inspections and the fact that its 

final assessed penalties are reduced less 

after appeal than are federal OSHA’s 

result in equivalent worker protection as 

demonstrated by declining injury/

illness rates. 

• Orders to Correct. In addition to 

issuing citations, Oregon issues ‘‘Orders 

to Correct’’ to require correction of 

safety and health hazards in certain 

circumstances. For example, orders may 

be used when a citation has not been 

issued within 180 days of the opening 

conference, when legal estoppel issues 

interfere with issuing a citation, or 

when a small employer, who is required 

by rule to have a safety committee but 

does not, agrees to implement an 

‘‘innovative’’ committee following the 

OR–OSHA guidelines for small 

employers. Citations for failure-to-abate 

and repeat violations can be issued on 

an Order to Correct. Almost all Orders 

to Correct have dealt with small 

employer implementation of safety 

committee requirements. Oregon’s use 

of Orders to Correct in most 

circumstances is comparable to OSHA’s 

De Minimis Violations, where the 

employer complies with the clear intent 

of a standard but deviates from its 

particular requirements in a manner that 

has no direct or immediate relationship 

to employee safety or health. 

• Multi-employer guidelines. 

Oregon’s different Multi-Employer 

Workplace Citation Guidelines, effective 

January 1, 2003 and re-issued March 8, 

2004, are referenced in OR–OSHA’s 

FIRM but are contained in a stand-alone 

enforcement guidance document posted 

on the OR–OSHA website that has been 

determined to be at least as effective as 

OSHA’s policy (OSHA Instruction CPL 

2–0.124, December 10, 1999). Under 

OR–OSHA’s guidelines, only employers 

that have direct knowledge of the 

hazardous conditions and exercise, or 

have the right to exercise, direct control 

over the work practices of employees 

who could reasonably have been 

exposed to such conditions may be 

cited. The federal policy is broader and 

also allows citations for employers 

responsible for correcting a hazard. 

However, Oregon’s guidelines 

encourage the use of Orders to Correct 

for employers who are not cited. 

2. Program Directives. OR–OSHA 

Program Directives, as updated through 

May, 2004, provide guidance to Oregon 

compliance officers to enforce and 

interpret standards and administrative 

rules, and have been found to be at least 

as effective as OSHA’s program 

guidance documents and continue to 

meet the indices and criteria of 29 CFR 

part 1902. While most Oregon program 

directives concern the enforcement of 

individual standards, 26 directives 

provide broader compliance guidance 

for the operation of the Oregon state 

plan, covering issues such as citing 

corporate officers; egregious violations; 

paperwork and written program 

violations; process for splitting 

violations; complaint policies and 

procedures; inspection criteria (for 

construction and logging safety 

inspections, for random construction 

inspections and for temporary 

employment and leasing agencies); 

inspection exemptions for small 

agricultural employers; scheduling lists 

for safety and health inspections; statewide settlement agreements; video and 

audio tapes case file documentation 

guidelines; independent contractors, 

LLCs, partnerships and corporate 

officers; jurisdictional issues and 

agreements; local emphasis programs 

(agriculture and reforestation worker 

housing, falls in construction, field 

sanitation, and struck-by hazards in 

logging); special emphasis programs 

(silicosis, lead in construction); safety 

and health program review; and 

tuberculosis. 

3. Consultation Manual. OR–OSHA’s 

Consultative Services Reference Guide, 

dated February 5, 2002, parallels 

OSHA’s Consultation Policies and 

Procedures Manual issued August 6, 

2001 and contains provisions as 

established by 29 CFR part 1908. 

Oregon’s consultation manual has been 

found to be at least as effective as 

OSHA’s and meets the indices and 

criteria of 29 CFR part 1902. Oregon 

operates an on-site consultation 

program for small private sector 

employers pursuant to section 21(d) of 

the federal OSH Act which is staffed by 

4 consultants and is separate from its 

OSHA-approved state plan. In addition, 

as also documented in OR–OSHA’s 

consultation manual, Oregon operates a 

separate consultation program funded 

with 100% state funds and staffed by 32 

consultants which provides similar 

services to both private and public 

sector employers but does not conform 

to all of the requirements of the federal 

program, including required abatement 

of serious hazards. Because of these 

differences, the private sector aspect of 

this program is not considered a part of 

the approved state plan but is evaluated 

to the extent appropriate to assure it has 

no negative impact on the effectiveness 

of the approved state plan.

4. Technical Manual. The Oregon 

Technical Manual, updated through 

April, 2001, is a reference document 

that is also part of Oregon’s revised state 

plan. It is identical to the OSHA 

Technical Manual (OSHA Instruction 

TED 1–0.15A, January 20, 1999) except 

for section 1, sampling, which was 

updated by the state in 2001 to reflect 

75450 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Notices 

its current laboratory practices. The 

Technical Manual provides technical 

information to OR–OSHA compliance 

officers on occupational safety and 

health topics to assist them in hazard 

recognition and to provide guidance in 

accident prevention. Topics addressed 

include sampling and measurement 

methods, health hazards (polymers, 

indoor air, ventilation, heat stress, 

noise, lasers), safety hazards (oil well 

derricks, petroleum refining, pressure 

vessel guidelines, industrial robots), 

construction operations (demolition, 

excavations, lead exposure), health care 

facilities, ergonomics, and chemical 

protective clothing. 

F. Budget and Personnel 

The revised Oregon state plan 

contains the current FY 2005 grant 

application for the Oregon program 

which includes an organization chart 

and detailed information on staffing and 

funding. The Oregon plan is currently 

funded at $5,105,000 in initial federal 

section 23(g) funds, $5,105,000 in 

matching state funds, and $8,394,237 in 

100% state funds, for a total initial 

federal and state award of $18,604,237. 

OR–OSHA has a staff of 184 with 52 

safety and 28 health compliance 

officers, 2 safety and 2 health 

consultants funded under 21(d), and 19 

safety and 13 health consultants in a 

100% state-funded program. The 

approved compliance staffing 

benchmarks for the Oregon program 

pursuant to a 1978 court order in AFL–

CIO v. Marshall (C.A. No. 74–406) are 

47 safety and 28 health. OR–OSHA 

personnel are employed under a merit 

system in compliance with Oregon law, 

personnel rules, and the state’s 

collective bargaining contract with the 

Oregon Public Employees Union. 

III. Decision 

After careful review and 

consideration, the Oregon revised state 

plan and its components described 

above are found to be in substantial 

conformance with comparable federal 

provisions and in some cases to go 

beyond federal requirements and are 

hereby approved under 29 CFR Part 

1953 as providing a revised state plan 

for the development and enforcement of 

standards which continues to be ‘‘at 

least as effective as’’ the federal 

program, as required by section 18(b) of 

the OSH Act. The right to reconsider 

this approval is reserved should 

substantial objections or other 

information become available to the 

Assistant Secretary regarding any of the 

plan change’s components. OSHA’s 

decision today incorporates the 

requirements and implementing 

regulations applicable to state plans 

generally. 

IV. Location of Basic State Plan 

Documentation 

Copies of the revised Oregon state 

plan are maintained at the following 

locations; specific documents are 

available upon request. Contact the 

Office of the Regional Administrator, 

Occupational Safety and Health 

Administration, 1111 Third Avenue, 

Suite 715, Seattle, Washington 98101–

3212, (206) 553–5930, fax (206) 553–

6499; Oregon Occupational Safety and 

Health Division, Department of 

Consumer and Business Services, 

Salem, Oregon 97310, (503) 378–3272, 

fax (503) 947–7461; and the Office of 

State Programs, Directorate of 

Cooperative and State Programs, 

Occupational Safety and Health 

Administration, 200 Constitution 

Avenue, NW, Room N3700, 

Washington, D.C. 20210, (202) 693–

2244, fax (202) 693–1671. 

Most of the Oregon revised state plan 

documents referenced above are posted 

on the state’s Web site at 

www.cbs.state.or.us/external/osha.

Oregon’s contested cases rules at OAR 

438–085 are posted on the state of 

Oregon’s rules Web site at http://

arcweb.sos.state.or.us/rules/

alpha_index.html, under Department of 

Consumer and Business Services, 

Workers’ Compensation Board. The 

Bureau of Labor and Industries’

discrimination rules at OAR 839–003, 

839–004 and 839–050 may be accessed 

through the same Web site. 

An electronic copy of this Federal 

Register notice and related press release 

are available on OSHA’s Web site, 

www.osha.gov.

V. Public Participation 

Under 29 CFR 1953.6(c), OSHA 

generally ‘‘will seek public comment if 

a State program component differs 

significantly from the comparable 

Federal program component and OSHA 

needs additional information on its 

compliance with the criteria in section 

18(c) of the Act, including whether it is 

at least as effective as the Federal 

program***’’. Based on the 

information presently available, the 

Assistant Secretary finds that the 

Oregon revised state plan described 

above is consistent with federal 

requirements and with commitments 

contained in the plan and previously 

made available for public comment. 

Public participation for the purpose of 

providing additional information about 

the effectiveness of the Oregon state 

plan is therefore unnecessary. Moreover, 

all legislative and regulatory 

components of the revised plan as well 

as many of the policy documents were 

adopted under procedural requirements 

of state law, which included appropriate 

opportunity for public participation. 

Good cause is therefore found for 

approval of these supplements (which 

constitute the revised state plan), and 

further public participation would be 

repetitious and unnecessary.

Authority: Sec. 18 of the Occupational 

Safety and Health Act of 1970, 84 Stat. 1608 

(29 U.S.C. 667); 29 CFR part 1902; Secretary 

of Labor’s Order No. 5–2002 (67 FR 65008, 

October 22, 2002).

Signed in Washington, DC, this 10th day of 

December, 2004. 

John L. Henshaw, 

Assistant Secretary.

[FR Doc. 04–27566 Filed 12–15–04; 8:45 am] 

BILLING CODE 4510–26–P