75436 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Proposed Rules 

DEPARTMENT OF LABOR

Occupational Safety and Health 

Administration 

29 CFR Part 1952 

[Docket No. T–027A] 

RIN 1218–AC13 

Oregon State Plan; Eligibility for Final 

Approval Determination (Excluding 

Temporary Labor Camps); Proposal To 

Grant an Affirmative Final Approval 

Determination; Comment Period and 

Opportunity To Request Public 

Hearing

AGENCY: Occupational Safety and Health 

Administration (OSHA), U.S. 

Department of Labor.

ACTION: Proposed final State plan 

approval; 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, as 

administered by the Oregon Department 

of Consumer and Business Services, for 

determination under section 18(e) of the 

Occupational Safety and Health Act of 

1970 as to whether final approval of the 

State plan should be granted. This 

eligibility for 18(e) determination 

applies to all issues covered under the 

plan, with the exception of temporary 

labor camps. 

If an affirmative determination under 

section 18(e) is made, Federal standards 

and enforcement authority will no 

longer apply to issues covered by the 

Oregon plan, with the exception of 

temporary labor camps in agriculture, 

general industry, construction and 

logging. This notice announces that 

OSHA is soliciting written public 

comment regarding whether or not final 

State plan approval should be granted, 

and offers an opportunity to interested 

persons to request an informal public 

hearing on the question of final State 

plan approval.

DATES: Submit written comments and 

hearing requests by the following dates: 

Hard Copy: Your comments and 

hearing requests must be submitted 

(postmarked or sent) by January 18, 

2005. 

Facsimile and electronic 

transmission: Your comments and 

hearing requests must be sent by 

January 18, 2005. 

Please see the section entitled PUBLIC

PARTICIPATION for additional information 

on submitting written comments and 

hearing requests.

ADDRESSES: Regular mail, express 

delivery, hand-delivery, and messenger 

service: Submit three copies of 

comments, attachments, and hearing 

requests to the OSHA Docket Office, 

Docket No. T–027A, Room N–2625, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Washington, DC 20210; 

telephone (202) 693–2350. OSHA 

Docket Office and Department of Labor 

hours of operation are 8:15 a.m. to 4:45 

p.m. E.S.T.

Please note that security-related 

procedures may result in significant 

delays in receiving comments by regular 

mail. Telephone the OSHA Docket 

Office at (202) 693–2350 for information 

regarding security procedures 

concerning delivery of materials by 

express delivery, hand delivery, and 

messenger service. 

Facsimile: Transmit hearing requests 

and comments (including attachments) 

consisting of 10 or fewer pages by 

facsimile to the OSHA Docket Office at 

(202) 693–1648. 

Electronic: Submit comments and 

hearing requests electronically through 

the Internet at http://dockets.osha.gov.

You must include the docket number 

of this notice, Docket No. T–027A, in 

your hearing requests and comments. 

For access to the docket to read or 

download comments or background 

materials, such as Oregon State Plan 

documents, go to OSHA’s Docket Office 

Home Page at http://dockets.osha.gov.

All comments, submissions and 

background materials are also available 

for inspection and copying in the OSHA 

Docket Office at the address above. 

Contact the OSHA Docket Office at (202) 

693–2350 for information about 

materials not available on the OSHA 

Web site and for assistance in using this 

Web site to locate docket submissions. 

Because comments sent to the docket or 

to OSHA’s Web site are available for 

public inspection, the Agency cautions 

interested parties against including in 

these comments personal information 

such as social security numbers or birth 

dates.

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, Room N–3700, 

OSHA, U.S. Department of Labor, 200 

Constitution Avenue, NW., Washington, 

DC 20210; telephone (202) 693–2244. 

Electronic copies of most information 

and data concerning the Oregon State 

Plan that have been made part of the 

record in this proceeding have been 

posted on OSHA’s Docket Office Home 

Page at http://dockets.osha.gov. You 

may also access many of Oregon’s 

documents referenced in this Federal 

Register document by visiting the 

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

external/osha. Electronic copies of this 

Federal Register document, as well as 

all post-1993 OSHA Federal Register

notices mentioned in this document, are 

available on OSHA’s Web site at 

www.osha.gov.

SUPPLEMENTARY INFORMATION

Background 

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 

§§ 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). Certification attests to the 

structural completeness of a State plan, 

but renders no judgment as to its 

performance in actual operation. 

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, 

Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Proposed Rules 75437

promulgated State 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 in those issues covered by the 

State plan, where 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 and whether 

final approval should be granted. 

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)). With the exception of 

sections 5(a)(1) and 11(c), Federal 

standards and enforcement authority no 

longer apply in that State to issues 

granted final approval status under the 

plan. Procedures for section 18(e) 

determinations are found at 29 CFR part 

1902, subpart D. In general, in order to 

be granted final approval, in addition to 

structural sufficiency, actual 

performance by the State must be ‘‘at 

least as effective’’ 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 (AFL–CIO v. 

Marshall, C.A. No. 74–406), pursuant to 

a U.S. Court of Appeals decision 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. 

The last 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 on a State necessary to 

make an objective continuing evaluation 

of whether the State performance meets 

the statutory and regulatory criteria for 

final approval. 

History of the Oregon Plan and of Its 

Compliance Staffing Benchmarks 

Oregon Plan 

On June 6, 1972, the Oregon 

occupational safety and health plan was 

submitted to the Assistant Secretary in 

accordance with section 18(b) of the Act 

and 29 CFR Part 1902, Subpart C, and 

on July 20, 1972 a notice was published 

in the Federal Register (37 FR 14445) 

concerning the submission of the plan, 

announcing that initial Federal approval 

of the plan was at issue and offering 

interested persons 30 days in which to 

submit data, views and arguments in 

writing concerning the plan.

The American Federation of LaborCongress of Industrial Organizations 

(AFL–CIO) requested a public hearing, 

which was held September 27, 1972, in 

Portland, Oregon. Comments on the 

plan were received from the AFL–CIO, 

the National Electrical Contractors, and 

the Oregon Construction Industry 

Council, Inc. In response to concerns 

raised by the commentors, as well as 

issues noted by OSHA, the State made 

clarifications and revisions to its plan 

relating to its standards and enabling 

legislation. The standards issues 

concerned the effectiveness of some 

standards, product standards, variance 

procedures, hazard communication, 

protection from exposure to hazards 

(requirements for personal protective 

equipment), and access to employee 

exposure records. Legislative issues 

concerned criminal penalty v. civil 

damage lawsuits, protection for 

employees filing complaints, and 

sanctions for alleged ‘‘red tag’’ notice 

violations. Thereafter, on December 28, 

1972, the Assistant Secretary published 

a Federal Register notice (37 FR 28628) 

granting initial approval of the Oregon 

plan as a developmental plan and 

adopting Subpart D of Part 1952 

containing the decision and describing 

the plan. 

The Oregon Occupational Safety and 

Health Division (OR–OSHA) in the 

Department of Consumer and Business 

Services is designated as the agency 

having responsibility for administering 

the plan throughout the State under the 

authority of the Oregon Safe 

Employment Act (Oregon Revised 

Statutes, Chapter 654). The plan covers 

all private sector employers with the 

exception of 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. Such 

employers remain subject to Federal 

OSHA jurisdiction. The State’s coverage 

also extends to all State and local 

government employers as required by 

section 18(c)(6) of the OSH Act. The 

plan provides for the adoption by 

Oregon of standards which are at least 

as effective as the Federal occupational 

safety and health standards. The plan 

requires employers to furnish 

employment and a place of employment 

which is free from recognized hazards 

that are causing or are likely to cause 

death or serious physical harm, and to 

comply with all occupational safety and 

health standards promulgated by the 

State agency. Employees are required to 

comply with all standards and 

regulations applicable to their conduct. 

The plan contains provisions similar 

to Federal procedures governing: 

Inspection and citation procedures; 

emergency temporary standards; 

imminent danger proceedings; coverage 

under the State’s equivalent of the 

general duty clause; variances; 

safeguards to protect trade secrets; 

protection of employees against 

discrimination for exercising their rights 

under the plan; and employer and 

employee rights to participate in 

inspection and review proceedings. 

Notices of contest of citations and 

penalties are heard by the Oregon 

Workers’ Compensation Board, an 

independent administrative board. 

Decisions of the Workers’ Compensation 

Board may be appealed to the Oregon 

appellate court. Complaints of 

discrimination are investigated by the 

Oregon Bureau of Labor and Industries, 

which also makes final determinations 

through settlement agreements and 

contested case hearings. Employees who 

allege discrimination have a private 

right of action in the circuit courts of 

Oregon, but may pursue both 

administrative and civil remedies only 

if they file a suit in court after BOLI has 

investigated and rejected their claim. 

The Assistant Secretary’s initial 

approval of the Oregon developmental 

plan, a general description of the plan, 

a schedule of required developmental 

steps, and a provision for the exercise of 

discretionary concurrent Federal 

enforcement during the period of initial 

approval were codified in the Code of 

Federal Regulations (29 CFR Part 1952, 

Subpart D, 37 FR 28628, December 28, 

1972). 

75438 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Proposed Rules 

In accordance with the State’s 

developmental schedule, all major 

structural components of the plan were 

put in place and documentation 

submitted for OSHA approval on or 

before December 28, 1975. These 

‘‘developmental steps’’ included 

enactment of the Oregon Safe 

Employment Act, promulgation of State 

occupational safety and health 

standards at least as effective as the 

Federal standards, development of 

administrative rules and procedures, 

hiring and training of inspectors, 

establishment of specific occupational 

safety and health goals, development 

and implementation of an affirmative 

action program, and development and 

implementation of administrative rules 

concerning a public sector consultation 

program. In completing these 

developmental steps, the State 

developed and submitted for Federal 

approval all components of its program 

including, among other things: The 

Oregon Safe Employment Act; the 

Oregon State Poster; an Affirmative 

Action Plan; personnel merit system 

rules; a Statement of Goals and 

Objectives; the Oregon State 

Compliance Manual; regulations for 

inspections, citations and penalties, 

variances, employee complaints, and 

posting of citations and notices; 

recordkeeping and reporting 

regulations; Oregon occupational safety 

and health standards; and public sector 

consultation program rules. 

These submissions were carefully 

reviewed by OSHA; after opportunity 

for public comment and modification of 

State submissions, where appropriate, 

the major plan elements were approved 

by the Assistant Secretary as meeting 

the criteria of section 18 of the Act and 

29 CFR 1902.3 and 1902.4. The Oregon 

Subpart of 29 CFR Part 1952 was 

amended to reflect each of these 

approval determinations (see 29 CFR 

1952.102). 

On September 15, 1982, in accordance 

with procedures at 29 CFR 1902.34 and 

1902.35, the Assistant Secretary 

certified that Oregon had satisfactorily 

completed all developmental steps (47 

FR 42105, September 24, 1982). In 

certifying the plan, the Assistant 

Secretary found the structural 

components of the plan—the statutes, 

standards, regulations, and written 

procedures for administering the Oregon 

program—to be at least as effective as 

corresponding Federal provisions. 

Certification does not, however, entail 

findings or conclusions by OSHA 

concerning the adequacy of the plan in 

actual performance. As has already been 

noted, OSHA regulations provide that 

certification initiates a period of 

evaluation and monitoring of State 

activity to determine in accordance with 

section 18(e) of the Act whether the 

statutory or regulatory criteria for State 

plans are being applied in actual 

operations under the plan and whether 

final approval should be granted.

On January 23, 1975, OSHA and the 

State of Oregon entered into an 

Operational Status Agreement which 

suspended the exercise of Federal 

concurrent enforcement authority in 

Oregon in all except specifically 

identified areas. (See 40 FR 18427.) 

The State has submitted plan 

supplements describing changes to its 

program since plan approval. OSHA’s 

approval of major plan changes has been 

announced in Federal Register notices 

published periodically. Approval of a 

fully updated State plan document 

containing all current structural 

components (legislation, regulations, 

policies and procedures manuals) and 

an updated plan narrative is published 

elsewhere in today’s Federal Register.

Oregon Benchmarks 

Under the terms of a 1978 Court Order 

in AFL–CIO v. Marshall, compliance 

staffing levels (benchmarks) necessary 

for a ‘‘fully effective’’ enforcement 

program were required to be established 

for each State operating an approved 

State plan. In 1980, in response to the 

Court Order, OSHA established 

benchmarks for all approved State 

plans, including benchmarks of 47 

safety and 60 health compliance officers 

for Oregon. The 1978 Court Order noted 

that new information might warrant an 

adjustment by OSHA of the fully 

effective benchmarks. In October, 1992, 

Oregon, in conjunction with OSHA, 

completed a reassessment of the levels 

resulting in a proposed revised health 

compliance staffing benchmark of 28 

health compliance officers. The State 

determined that there was no 

compelling reason to revise the existing 

1980 safety benchmark of 47 safety 

compliance officers. After opportunity 

for public comment and service on the 

AFL–CIO, the Assistant Secretary 

approved these revised staffing 

requirements on August 11, 1994 (59 FR 

42493). 

Determination of Eligibility 

This Federal Register document 

announces the eligibility of the Oregon 

plan for final approval determination 

under section 18(e) for all issues, with 

the exception of temporary labor camps 

in agriculture, general industry, 

construction and logging, which issue is 

being excluded from final approval at 

this time pending resolution of OSHA’s 

concerns regarding the effectiveness of 

the State’s temporary labor camps 

standards. OSHA intends to work with 

the State to resolve all effectiveness 

issues with regard to its two temporary 

labor camp standards so that final 

approval may be extended to all covered 

issues within a reasonable timeframe. 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. The determination of 

eligibility is based upon OSHA’s 

findings that: 

(1) The Oregon plan has been 

monitored in actual operation for at 

least one year following certification. 

The results of OSHA’s monitoring of the 

plan since the commencement of plan 

operations are contained in written 

evaluation reports which are made 

available to the State and to the public. 

The results of OSHA’s most recent postcertification monitoring are set forth in 

a comprehensive evaluation report 

covering the period of October 1, 2002 

through September 30, 2003, which has 

been made part of the record of the 

present proceedings and is available in 

Docket T–027A, together with all 

previous evaluation reports since 1983. 

(2) The plan meets the State’s revised 

benchmarks for enforcement staffing. 

On August 11, 1994, pursuant to the 

terms of the Court Order and the 1980 

Report to the Court in AFL–CIO v. 

Marshall, OSHA approved revised fully 

effective benchmarks of 47 safety and 28 

health compliance officers for Oregon 

based on an assessment of State-specific 

characteristics and historical 

experiences. Oregon has allocated safety 

positions in excess of these numbers, as 

evidenced by its FY 2005 Application 

for Federal Assistance in which the 

State has committed itself to funding the 

State share of salaries for 44 safety and 

23 health compliance officers, with an 

additional 8 safety and 5 health 

compliance officers that are funded with 

100% State monies. Total compliance 

officer staffing in both FY 2004 and FY 

2005 is 52 safety and 28 health. Both the 

FY 2004 and FY 2005 grant applications 

have been made part of the record in the 

present proceeding. 

Oregon provides State funds for its 

program well in excess of the required 

50% match of Federal funding. The 

additional funds have allowed the State 

to expand staffing and activities in both 

its enforcement and voluntary 

compliance programs. Oregon also 

operates a 100% State-funded on-site 

consultation program for public and 

private employers that is separate from 

its Federally-funded consultation 

program under section 21(d). As this 

State-funded program differs in several 

Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Proposed Rules 75439

significant ways from the Federal 

requirements, its private sector 

component is not considered to be part 

of the State plan and is evaluated 

primarily to assure no negative impact 

on the required functions of the 

approved State plan. 

(3) Oregon participates and has 

assured its continued participation in 

the computerized Integrated 

Management Information System (IMIS) 

developed and administered by OSHA. 

As required of all States with 

approved plans, Oregon has developed 

a five-year Strategic Plan (currently 

covering the period FY 2001 to FY 2005) 

to guide its efforts to improve 

occupational safety and health in the 

State. The State’s strategic goals 

(improve workplace safety and health, 

change workplace culture, and assure 

public confidence) are similar to those 

of Federal OSHA and are directed to the 

overall goal of reducing workplace 

injuries, illnesses and fatalities. 

Oregon’s efforts are expected to 

contribute to the achievement of 

OSHA’s national injury/illness/fatality 

reduction goals. Oregon’s FY 2001–2005 

Strategic Plan and its FY 2004 and FY 

2005 Annual Performance Plans are 

available in Docket T–027A, as a part of 

Oregon’s FY 2004 and 2005 grants.

Issues for Determination in the 18(e) 

Proceedings 

The Oregon plan is now at issue 

before the Assistant Secretary for 

determination as to whether 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. 29 CFR 1902.37(a) requires the 

Assistant Secretary, as part of the final 

approval process, to determine if the 

State has applied and implemented all 

the specific criteria and indices of 

effectiveness of §§ 1902.3 and 1902.4. 

The Assistant Secretary must make this 

determination by considering the factors 

set forth in § 1902.37(b). OSHA believes 

that the results of its evaluation of the 

Oregon program as described in the 

most recent evaluation report, 

considered in light of these regulatory 

criteria and the criteria in section 18(c) 

of the Act, indicate that the regulatory 

indices and criteria are being met. The 

Assistant Secretary accordingly has 

made an initial determination that the 

Oregon plan is eligible for an affirmative 

section 18(e) determination for all issues 

covered by the plan with the exception 

of temporary labor camps as regulated 

by two state standards applicable to 

both agriculture and general industry 

(including construction and logging). 

This notice initiates proceedings by 

which OSHA expects to elicit public 

comment on the issue of granting an 

affirmative section 18(e) determination 

to Oregon. In order to encourage the 

submission of informed and specific 

public comment, a summary of current 

evaluation findings with respect to these 

criteria is set forth below. 

(a) Standards and Variances 

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. A 

State is required to adopt, in a timely 

manner, all Federal standards and 

amendments or to develop and 

promulgate State standards and 

amendments at least as effective as the 

Federal standards. See §§ 1902.37(b)(3), 

1902.3(c), 1902.4 (a) and (b). Although 

Oregon does not automatically adopt 

standards which are identical to the 

Federal standards, it usually adopts 

Federal standards by reference and 

sometimes adds a few State-initiated 

provisions under the State’s regulatory 

numbering system. Oregon also adopts 

independent standards which do not 

have a direct Federal counterpart. 

Oregon OSHA adopts standards through 

a promulgation process that provides 

notification to the public of its intent to 

adopt a standard: It publishes the 

standard that it proposes in the 

Secretary of State’s Bulletin, it asks for 

comments and it may hold hearings. 

After review of all comments and 

appropriate revision, the standard is 

formally adopted and its effective date 

established. When Oregon 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, OROSHA’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 the 

Federal, 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 

workplace safety committees, crane 

operator training, thiram, reinforced 

plastics manufacturing, ornamental tree 

and shrub services, and extensive forest 

activities (logging) requirements. [18(e) 

Evaluation Report, pp. 20–21] 

Where a State adopts Federal 

standards, the State’s interpretation and 

application of such standards must be 

consistent with Federal interpretation 

and application. Where a State develops 

and promulgates its own standards, 

interpretation and application must 

ensure protection at least as effective as 

comparable Federal standards and 

enforcement procedures. While 

acknowledging the effectiveness of 

individual standards, this requirement 

stresses that State standards, in actual 

operation, must be at least as effective 

as the Federal standards. See 

§§ 1902.37(b)(4), 1902.3(c)(1), 

1902.3(d)(1), 1903.4(a), and 1902.4(b)(2). 

As already noted, the Oregon plan 

provides for adoption of standards 

identical to or at least as effective as the 

Federal standards. Oregon also generally 

adopts Federal interpretations or more 

stringent requirements and thus assures 

at least as effective worker protection. 

The State is required to take the 

necessary administrative, judicial or 

legislative action to correct any 

deficiency in its program caused by an 

administrative or judicial challenge to 

any State standard, whether the 

standard is identical to the Federal 

standards or developed by the State. See 

§ 1902.37(b)(5). There have been 

administrative and judicial challenges 

to State standards in Oregon, but they 

have all been satisfactorily resolved. 

The State legislature has periodically 

enacted legislation requiring changes in 

the State’s standards, such as for safety 

committees, hazard communication in 

agriculture, live-line bare-handed 

electrical work, sanitation in 

construction, and most recently for steel 

erection. For example, the steel erection 

legislation resulted in a required 

modification to Oregon’s more stringent 

fall protection provisions in its steel 

erection standard to make them 

identical to the Federal. 

When granting permanent variances 

from standards, the State is required to 

ensure that the employer provides as 

safe and healthful working conditions as 

would have been provided if the 

standard were in effect. See 

§§ 1902.37(b)(6) and 1902.4(b)(2)(iv). 

Oregon granted three permanent 

variances during the 18(e) evaluation 

period. The granted variances were 

processed in accordance with State 

procedures. [18(e) Evaluation Report, p. 

21] Where a temporary variance is 

granted, the State must ensure, among 

other things, that the employer complies 

with the standard as soon as possible 

and provides appropriate interim 

employee protection. See 

75440 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Proposed Rules 

§§ 1902.37(b)(7) and 1902.4(b)(2)(iv). 

The Oregon temporary variance 

procedures require that any employer 

granted a temporary variance must have 

an effective program for coming into 

compliance with the standard as soon as 

possible. During the section 18(e) 

evaluation period, no temporary 

variances were granted. [18(e) 

Evaluation Report. p. 21] 

(b) Enforcement

Section 18(c)(2) of the Act requires 

State plans to maintain an enforcement 

program which is at least as effective as 

that conducted by Federal OSHA. 

Section 18(c)(3) requires the State plan 

to provide for right of entry and 

inspection of all work places at least as 

effective as that in section 8 of the Act. 

Inspection Targeting. The State 

inspection program must provide for 

sufficient resources to be directed to 

designated target industries while 

providing adequate protection to all 

other workplaces covered under the 

plan. See §§ 1902.37(b)(8), 1902.3(d)(1), 

and 1902.4(c). 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 for FY 2001–

2005 focuses on reducing silica 

exposures, lead in construction 

exposures, and fall hazards. The State 

has targeted inspections in the following 

industries: agriculture, construction, 

lumber/wood, food/kindred products, 

and health care. OR-OSHA conducted 

4,569 safety inspections during FY 

2003. Of that total, 3,494 (76%) were 

programmed. In the same period, 789 

health inspections were conducted, of 

which 350 (44%) were programmed, for 

a combined programmed inspections 

average of 72%. This is consistent with 

previous years’ inspections and exceeds 

the Federal experience of 56% 

programmed inspections. Fourteen 

percent (14%) of State inspections are in 

response to complaints and 4% are in 

response to accidents. There are no 

backlogs of such inspections. 

During the evaluation period, the 

percentage of OR-OSHA programmed 

safety inspections with serious, willful 

or repeat violations was 40% for Oregon 

compared to 60% for Federal OSHA and 

a national (State and Federal OSHA data 

combined) three-year average of 49%. 

The percentage of OR-OSHA 

programmed health inspections with 

serious, willful or repeat violations was 

25% for Oregon compared to 46% for 

Federal OSHA and a national three-year 

average of 40%. 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. (See discussion 

under Identifying and Citing Hazards.) 

Denials of Entry. In cases of refusal of 

entry, the State must exercise its 

authority, through appropriate means, to 

enforce the right of entry and 

inspection. See §§ 1902.37(b)(9), 

1902.3(e) and (f), and 1902.4(c)(2)(i) and 

(ix). Section 654.067 of the Oregon Safe 

Employment Act provides for an 

inspector’s right of entry during regular 

hours to any place of employment. 

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. [18(e) 

Evaluation Report, p. 22] 

Inspection Procedures. Inspections 

must be conducted in a competent 

manner following approved 

enforcement procedures, which include 

the requirement that inspectors acquire 

information adequate to support any 

citation issued. See §§ 1902.37(b)(10), 

1902.3(d)(1), and 1902.4(c)(2). 

Procedures for the Oregon occupational 

safety and health compliance program 

are set out in the Oregon Field 

Inspection Reference Manual (FIRM), 

which is patterned after OSHA’s FIRM 

and other compliance documents. The 

Oregon FIRM is supplemented by 

program directives. The State in actual 

operation has demonstrated its 

adherence to inspection procedures, 

including documentation, which are 

similar to Federal procedures. [18(e) 

Evaluation Report p. 22] 

Oregon uses multi-employer 

workplace citation guidelines that are 

different from the Federal multiemployer policy. Oregon’s guidelines 

allow employers on multi-employer 

sites to be cited if they create hazards, 

expose employees to hazards, or control 

the worksite, provided certain 

conditions are met, whereas the Federal 

policy is broader and also allows 

citations for employers responsible for 

correcting a hazard. Only Oregon 

employers that have knowledge of the 

hazardous conditions and exercise 

direct control over the work practices of 

employees exposed to such conditions 

may be cited. However, Oregon’s 

guidelines encourage the use of Orders 

to Correct for employers that are not 

cited. 

Identifying and Citing Hazards. In FY 

2003, Oregon compliance officers found 

2.9 violations per inspection, which is 

the same as the Federal average of 2.95 

violations per inspection, but lower 

than the three-year national (State and 

Federal data combined) average of 3.5. 

Oregon also cited an average of 1.1 

serious, willful or repeat violations per 

inspection. The comparable Federal 

data was 2.2 and the national three-year 

average was 2.0. For other-than-serious 

violations, the respective averages were 

1.81 for Oregon, .75 for Federal, and 1.5 

for the three-year national average. In 

addition to issuing citations, the State 

issues ‘‘Orders to Correct’’ to require 

correction 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. 

Although Oregon OSHA finds as 

many violations per inspection as does 

Federal OSHA, its percentage of 

programmed inspections with serious, 

willful or repeat violations is lower than 

both the Federal and national averages 

(see Inspection Targeting). State officials 

assert that Oregon’s lower percent of 

serious, willful or repeat violations is 

attributable to the fact that Oregon has 

a much higher frequency of inspections 

compared to Federal and national 

averages. With 157,117 private sector 

establishments (per Oregon FY 2004 

annual performance plan, p. 4), 

Oregon’s 5,082 private sector 

inspections in FY 2003 represent one 

inspection for every 29 establishments, 

compared to one inspection for every 82 

private sector establishments at the 

national (State and Federal OSHA data 

combined) level. [18(e) Evaluation 

Report, pp. 21–22] 

Oregon has also required employer 

safety and health programs through 

workplace safety committees since 

1982. Besides conducting workplace 

inspections, investigating accidents and 

recommending to the employer how to 

eliminate hazards, these safety 

committees assist the employer in 

evaluating the employer’s safety and 

health program and make written 

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recommendations to improve the 

program. In addition, Oregon has a 

large, independent consultation 

program whose private sector 

component operates outside of the 

approved State plan and a large 

employer recognition and exemption 

program which meets Federal 

requirements, as well as other 

cooperative compliance assistance 

activities. These programs emphasize 

assisting employers in improving their 

safety and health programs. (84% of 

Oregon consultations in FY 2003 

involved working with safety 

committees.) These factors may have the 

effect of reducing the numbers of 

serious hazards present in the 

workplace and therefore the number of 

serious violations per inspection. 

Oregon’s accepted workers’

compensation disabling claims rate and 

Bureau of Labor Statistics lost workday 

injury/illness rate have also been 

steadily declining over the past decade, 

demonstrating fewer injuries. (See 

Injury/Illness Rates section.) [18(e) 

Evaluation Report, pp. 10–12, and 

Appendix A, SOAR Report, pp. A–1 and 

A–3] 

Though Oregon has a lower 

percentage of violations that are willful 

(.02% vs. .49% Federal), Oregon’s 

statutory provisions for criminal willful 

penalties at ORS 654.991(a) contain two 

additions not found in the Federal OSH 

Act which should enhance Oregon’s 

ability to successfully pursue criminal 

willful violations. A willful violation in 

Oregon that materially contributes to the 

death of an employee may also be 

subject to criminal prosecution, as well 

as a willful violation that causes a 

death. The Oregon Act also includes a 

definition of ‘‘willful’’.

Advance Notice. State plans must 

include a prohibition on advance notice 

of inspections, and exceptions must be 

no broader than those allowed by 

Federal OSHA procedure. See 

§ 1902.3(f). Oregon has adopted 

approved procedures for advance notice 

similar to the Federal procedures. 

During the evaluation period, Oregon 

did not grant any advance notice of 

inspections. 

Employee Participation. State plans 

must provide for inspections in 

response to employee complaints, and 

must provide an opportunity for 

employee participation in State 

inspections. See § 1902.4(c)(i) through 

(iii). The State has procedures similar to 

those of Federal OSHA which require 

that either an employee representative 

be provided an opportunity to 

accompany the compliance officer on 

the walk-around or that a reasonable 

number of employees be interviewed. In 

addition, inspection reports are 

provided to employee representatives 

and complainants. In each of the 18 

accompanied visit inspections with 

OSHA monitors during the evaluation 

period, employees or their 

representatives actively participated. No 

problems have been noted concerning 

employee participation. [18(e) 

Evaluation Report, p. 22] 

Response to Complaints. Oregon’s 

procedures for processing and 

responding to complaints are essentially 

identical to OSHA’s. Imminent danger 

complaints are to be responded to by 

inspection within 24 hours and serious 

complaints within 5 working days. 

Other-than-serious complaints may be 

responded to by inspection (within 30 

working days), letter, fax or telephone. 

During the evaluation period the State 

was timely in initiating responses to 

employee imminent danger complaints 

98% of the time, serious complaints 

95% of the time, and other-than-serious 

complaints 99% of the time. In addition, 

OR–OSHA provided complainants with 

timely response letters 94% of the time 

and sent timely letters 100% of the time 

to family members when fatalities were 

involved. During FY 2003 Oregon 

responded to 59 imminent danger 

complaints (8%), 379 serious 

complaints (52%) and 291 other-thanserious complaints (40%); these figures 

are virtually unchanged from FY 2002. 

[18(e) Evaluation Report, pp. 22–23 and 

Appendix A, SOAR Report, p. 12] 

Non-discrimination. State plans must 

also provide protection for employees 

against discrimination similar to that 

found in section 11(c) of the Federal 

Act. See § 1902.4(c)(2)(v). Section 

654.062(5) of the Oregon Safe 

Employment Act provides 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. Oregon 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. Oregon 

OSHA is actively working with BOLI to 

improve case determination timeliness, 

to ensure that a review of the ‘‘prima 

facie’’ elements is conducted in every 

instance when determining the merits of 

11(c) complaints, and to provide file 

documentation of the reasons why no 

investigation is conducted. The 

administrator of the Civil Rights 

Division of BOLI has expressed BOLI’s 

commitment to addressing OSHA’s 

concerns, and OR–OSHA will be 

reviewing discrimination case files for 

appropriate case file documentation, 

including prima facie analysis, during 

quarterly audits. 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. OR–

OSHA pays BOLI for each occupational 

safety and health-related discrimination 

investigation it conducts. At the time 

the evaluation report was prepared, 

BOLI had 12 investigators. [18(e) 

Evaluation Report, pp. 26–28] 

Although the State’s nondiscrimination program is working to 

resolve several issues, employees in 

Oregon continue to have the right to 

dually file a discrimination complaint 

with Federal OSHA to preserve their 

right to further Federal investigation 

and prosecution should it be necessary. 

As Federal authority under section 11(c) 

is not affected by an 18(e) 

determination, this protection would be 

unaffected by this proposed action. 

Oregon complainants also have a private 

right of action and may file a civil suit 

in State or Federal court if they are not 

satisfied with BOLI’s decision or if their 

case is dismissed. For a discussion of 

Oregon’s discrimination rules, see 

‘‘Oregon State Plan; Approval of Plan 

Supplements; Revised State Plan’’

published elsewhere in today’s Federal 

Register. 

Citations and Proposed Penalties. The 

State is required to issue, in a timely 

manner, citations, proposed penalties, 

and notices of failure to abate. See 

§§ 1902.37(b)(11), 1902.3(d), and 

1902.4(c)(2) (x) and (xi). The time from 

an inspection opening conference to 

citation issuance for safety inspections 

in Oregon was 38 days during FY 2003. 

This is better than the national average 

of 47 days but longer than the Federal 

average of 29 days. For health 

inspections, however, OR–OSHA 

averaged 74 days while the national 

average was 63 days and the Federal 

average was 40 days. As a result of State 

attention to this issue, by the end of the 

second quarter of FY 2004 lapse times 

were 34 days (safety) and 69 days 

(health). [18(e) Evaluation Report, p. 24] 

The State must propose penalties in a 

manner that is at least as effective as the 

penalties under the Federal program, 

which includes first instance violation 

penalties and consideration of factors 

comparable to those required in the 

Federal program in calculating 

penalties. See §§ 1902.37(b)(12), 

1902.3(d), and 1902.4(c) (x) and (xi). 

Oregon’s authority includes the use of 

75442 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Proposed Rules 

first instance sanctions with maximum 

statutory penalty amounts identical to 

the Federal with the exception of an 

optional $1,000 maximum penalty for 

posting violations vs. the Federal 

mandatory $7,000. This difference is not 

considered significant, however, as 

Oregon has also established a minimum 

posting penalty of $100–$200 and in 

practice, although OSHA may cite for 

failure to post a citation or annual 

summary, it does not usually issue 

citations for failure to post the OSHA 

poster (OSHA Directive CPL 02–00–111 

(CPL 2.111), ‘‘Citation Policy for 

Paperwork and Written Program 

Requirement Violations’’, November 27, 

1995). Unlike OSHA, Oregon also has 

statutory civil penalties of $100 to 

$2,500 for false statements (in addition 

to criminal penalties), red tag penalties 

of $100 to $5,000, and field sanitation 

penalties of $250 to $2,500. By 

regulation, Oregon also has raised the 

statutory minimum penalty amounts for 

various violations.

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/severitybased (gravity-based) penalty, 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-toabate violations ($50 per day for otherthan-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 differences in penalty 

calculation result in lower average 

penalties in Oregon, no deficiencies in 

program operations attributable to these 

differences were noted during this 

evaluation period. Oregon’s penalties 

for serious violations averaged $365 in 

FY 2003. The national average penalty 

for serious violations was $1,331 and 

the Federal average was $821. Oregon 

believes that its practice of conducting 

much more frequent inspections (see 

Inspection Targeting) 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. [18(e) Evaluation 

Report, pp. 24–25] 

Abatement. The State must ensure 

abatement of hazards cited including 

issuance of notices of failure to abate 

and appropriate penalties. See 

§§ 1902.37(b)(13), 1902.3(d), and 

1902.4(c)(vii) and (xi). A joint OSHA/

OR–OSHA special study of case files 

with serious violations found that 

satisfactory abatement verification 

documentation existed in 90% (80 of 

88) of the case files. [18(e) Evaluation 

Report, p. 24] Ninety-six percent (96%) 

of safety violations had abatement 

periods of less than 30 days and 97% of 

health violations had abatement periods 

of less than 60 days. This surpasses 

Federal performance of 80% and 90%, 

respectively. [18(e) Evaluation Report, 

Appendix B, FY 2003 Interim State 

Indicator Report, #C.4] Oregon also 

requires abatement verification when it 

issues an Order to Correct, and a Failure 

to Abate citation, with penalties, can be 

issued for non-abatement. (See 

discussion of Orders to Correct under 

Identifying and Citing Hazards.) 

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 

§§ 1902.37(b)(14) and 1902.3 (d) and (g). 

There was no Oregon OSHA appellate 

level contested case activity during this 

reporting 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). OR–OSHA had fewer violations 

vacated (9% vs. 22%), fewer serious 

violations reclassified (3% vs. 13%) and 

less reduction in penalties amounts 

(45% vs. 49%) after appeal than Federal 

OSHA during this same period. [18(e) 

Evaluation Report, p. 25] 

(c) Staffing and Resources 

The State is required to have a 

sufficient number of adequately trained 

and competent personnel to discharge 

its responsibilities under the plan. See 

section 18(c)(4) of the Act; 29 CFR 

1902.37(b)(1), 1902.3(d) and 1902.3(h). 

A State must also direct adequate 

resources to administration and 

enforcement of the plan. See section 

18(c)(5) of the Act and § 1902.3(I). The 

number of safety compliance positions 

authorized by the State exceeds the 

enforcement staffing benchmark for 

safety (52 authorized with a safety 

benchmark of 47). For health 

compliance positions, the number 

authorized equals the health benchmark 

(28 authorized with a health benchmark 

of 28). At the close of the evaluation 

period, 97% of the authorized 

enforcement positions were filled—98% 

of safety compliance positions and 96% 

of health compliance positions. These 

allocations are consistent with prior 

years’ approved 23(g) grant agreements. 

In addition to the central office in 

Salem, the State maintains field offices 

in Portland, Salem, Medford, Eugene, 

Pendleton and Bend. [18(e) Evaluation 

Report, p. 28]

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 funding for the State 

program in Fiscal Year 2005 is 

$18,604,237. ($5,105,000 Federal, 

$13,499,237 State). 

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 which provides 

the State with a process through which 

major rule changes and shifts in 

technology can be addressed divisionwide. 

(d) Other Requirements 

Public Employees. States which have 

approved plans must provide a safety 

and health program for State and local 

employees which must be as effective as 

the State’s plan for the private sector. 

See § 1902.3(j). The Oregon plan 

provides a program in the public sector 

which is identical to that in the private 

sector, including proposed penalties for 

first instance violations. The same 

policies and procedures apply to both 

sectors in terms of inspections, 

complaints, citations, penalties, and 

employer/employee rights. During this 

evaluation period, the State conducted 

265 (4.94%) of its total inspections in 

the public sector. The results of these 

inspections were comparable to those in 

the private sector. [18(e) Evaluation 

Report, p. 25] 

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 Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Proposed Rules 75443

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 § 1902.37(b)(15). Bureau of 

Labor Statistics injury-illness data for 

2002 are not directly comparable to 

2001 or prior years due to OSHA’s 

change in its recordkeeping 

requirements effective January 1, 2002. 

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). 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. [18(e) Evaluation 

Report, p. 29 and Appendix A, SOAR 

Report, p. A–1.] 

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 [18(e) Evaluation Report, 

Appendix A, SOAR Report, p. A–3], and 

the accepted disabling claims rate 

declined from 1.7 in 1998 to 1.5 in 2002. 

Required Reports. State plans must 

assure that employers in the State 

submit reports to the Secretary in the 

same manner as if the plan were not in 

effect. See section 18(c)(7) of the Act; 29 

CFR 1902.3(k). The plan must also 

provide assurance that the designated 

agency will make such reports to the 

Secretary in such form and containing 

such information as he or she may from 

time to time require. Section 18(c)(8) of 

the Act; 29 CFR 1902.4(1). Oregon’s 

recordkeeping requirements are 

identical to those of Federal OSHA with 

regard to the recording and reporting of 

injuries, illnesses and fatalities 

including all recent Federal revisions, 

but differ in other areas. In response to 

comments from OSHA, in March 2002, 

the State modified its rules to reflect 

certain Federal rulemaking changes 

which were necessary to be at least as 

effective as OSHA’s, and in April 2004 

added certain clarifying interpretive 

notes regarding bloodborne accidents 

and various definitions. OR–OSHA has 

regulations comparable to OSHA’s for 

reporting workplace fatalities and 

catastrophes. The State participates in 

the BLS Annual Survey of Occupational 

Illness and Injuries 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. As noted previously, the 

State 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, and 

submits other information and reports 

as required. [18(e) Evaluation Report, p. 

29] 

Voluntary Compliance. Section 

1902.4(c)(2)(xiii) requires States to 

undertake programs to encourage 

voluntary compliance by employers by 

such means as conducting training and 

consultation with employers and 

employees. Oregon operates an on-site 

consultation program funded under 

section 21(d) of the Occupational Safety 

and Health 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 Statefunded 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% Statefunded. (About 13% of OR–OSHA’s 

annual consultations are conducted in 

the public sector.) This large Statefunded 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 Oregon OSHA and, to 

date, no negative impact on the Oregon 

State plan has been identified. [18(e) 

Evaluation Report, p. 30] 

Oregon OSHA offers on its website an 

extensive inventory of training 

opportunities: on-line registration for a 

large variety of workshop classes, online 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 SpanishEnglish 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 business, 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. [18(e) 

Evaluation Report, Appendix A, SOAR 

Report, p. 7] 

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. 

In 1999, the Oregon legislature 

enacted legislation which affords 

employers the right to withhold the 

results of voluntary safety and health 

self-audits conducted by private sector 

consultants hired by employers from 

outside their organizations. Although 

Federal OSHA by policy (65 FR 46498) 

does not routinely seek disclosure of 

such self-audits, it does retain the 

authority to gain access to voluntary 

self-audits where necessary to fulfill its 

enforcement responsibility. However, 

the Oregon legislation allows access by 

OR–OSHA to self-audits that are in any 

way related to the investigation of an 

occupational accident or injury; audits 

that are done in fulfillment of any 

requirement of an OR–OSHA standard; 

and discussions between employees, 

which would include records of the 

meetings, inspections, evaluations and 

recommendations of the workplace 

safety committees required in Oregon. 

75444 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Proposed Rules 

In a letter dated August 26, 2004, Peter 

De Luca, Administrator of the Oregon 

OSHA program, has explained the 

narrow scope of this legislation, the fact 

that it has never been invoked, and that 

there has been no negative impact on 

the State’s ability to identify and cite 

violations. Further, Oregon has pledged 

to seek legislative reconsideration of the 

law should it ever negatively impact the 

State plan and its required performance. 

For further discussion of this legislation, 

see ‘‘Oregon State Plan; Approval of 

Plan Supplements; Revised State Plan’’

published elsewhere in today’s Federal 

Register. While OSHA and the U.S. 

Department of Labor continue to 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. 

Effect of Section 18(e) Determination 

If the Assistant Secretary, after review 

of the written comments received and 

the results of any informal hearing if 

requested and held, determines that the 

statutory and regulatory criteria for State 

plans 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 all issues 

covered by the Oregon plan (with the 

exception of temporary labor camps in 

both agriculture and general industry, 

including construction and logging), as 

provided by section 18(e) of the Act and 

29 CFR 1902.42(c). Oregon has excluded 

private sector establishments on Indian 

reservations and tribal trust lands, 

including tribal and Indian-owned 

enterprises; 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. In addition, the 

plan does not have jurisdiction over 

Federal agencies. Thus, Federal 

coverage of these areas would be 

unaffected by an affirmative section 

18(e) determination.

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 is withdrawn 

and provide notice that Federal 

authority with respect to enforcement 

under section 5(a)(1) of the Act and 

discrimination complaints under 

section 11(c) of the Act remains in 

effect. The notice would state that if 

continuing evaluations show that the 

State has failed to maintain a 

compliance staff which meets the 

revised fully effective benchmarks, or 

has failed to maintain a program which 

is at least as effective as the Federal, 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. At 

the same time, Subpart D of 29 CFR Part 

1952, which codifies OSHA decisions 

regarding approval of the Oregon plan, 

would be amended to reflect the section 

18(e) determination if an affirmative 

determination is made. 

Documents of Record 

All information and data presently 

available to OSHA relating to the 

Oregon section 18(e) proceeding have 

been made a part of the record in this 

proceeding and placed in the OSHA 

Docket Office. Most of these documents 

have been posted electronically on 

OSHA’s Docket Office Home Page at 

http://dockets.osha.gov. The contents of 

the record are also available for 

inspection and copying at the following 

locations: OSHA Docket Office, Room 

N–2625, Docket No. T–027A, U.S. 

Department of Labor, 200 Constitution 

Avenue NW., Washington, DC 20210, 

(202) 693–2350; Office of the Regional 

Administrator, U.S. Department of 

Labor—OSHA, 1111 Third Avenue, 

Suite 715, Seattle, Washington 98101–

3212, (206) 553–5930, fax (206) 553–

6499; and Department of Consumer and 

Business Services, Oregon Occupational 

Safety and Health Division, 350 Winter 

Street NE., Room 430, Salem, OR 97310, 

(503) 378–3272, fax (503) 947–7461. To 

date, the record on final approval 

determination includes copies of all 

Federal Register documents regarding 

the plan (other than standards 

approvals), including notices of plan 

submission, initial Federal approval, 

certification of completion of 

developmental steps, codification of the 

State’s operational status agreement, 

and other plan supplements. The record 

also includes: the State plan document 

(submitted September 2003 and updated 

through August 2004), which includes a 

plan narrative, State legislation, 

regulations and procedures, and an 

organizational chart for State staffing; 

the State’s FY 2004 and FY 2005 Federal 

grants; and the October 1, 2002 through 

September 30, 2003 18(e) Evaluation 

Report and all previous, postcertification evaluation reports (since 

1983). 

Public Participation 

Request for Public Comment and 

Opportunity To Request Hearing 

The Assistant Secretary is directed 

under § 1902.41 to make a decision 

whether an affirmative section 18(e) 

determination is warranted. As part of 

the Assistant Secretary’s decisionmaking process, consideration must be 

given to the application and 

implementation by Oregon of the 

requirements of section 18(c) of the Act 

and all specified criteria and indices of 

effectiveness as presented in 29 CFR 

1902.3 and 1902.4. These criteria and 

indices must be considered in light of 

the factors in 29 CFR 1902.37(b)(1) 

through (15). However, this action will 

be taken only after all the information 

contained in the record, including 

OSHA’s evaluation of the actual 

operations of the State plan, and 

information presented in written 

submissions and during an informal 

public hearing, if held, is reviewed and 

analyzed. OSHA is soliciting public 

participation in this process so as to 

assure that all relevant information, 

views, data and arguments related to the 

indices, criteria and factors presented in 

29 CFR Part 1902, as they apply to 

Oregon’s State plan, are available to the 

Assistant Secretary during this 

administrative proceeding. 

Interested persons are invited to 

submit written data, views, and 

comments with respect to this proposed 

section 18(e) determination. These 

comments must be received on or before 

January 18, 2005, and submitted in 

duplicate to the Docket Officer, Docket 

No. T–027A, U.S. Department of Labor, 

Room N–2625, 200 Constitution Avenue 

NW., Washington, DC 20210. Written 

submissions must clearly identify the 

issues which are addressed and the 

positions taken with respect to each 

issue. Comments limited to 10 pages or 

fewer may also be transmitted by FAX 

to: (202) 693–1648, provided that the 

original and one copy of the comment 

are sent to the Docket Office 

immediately thereafter. Electronic 

comments may be submitted through 

the Internet at http://dockets.osha.gov.

The State of Oregon will be afforded the 

opportunity to respond to each 

submission. 

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 

Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Proposed Rules 75445

or before January 18, 2005, and should 

be submitted in duplicate to the Docket 

Officer, Docket No. T–027A, at the 

address noted above. Such requests 

must present particularized written 

objections to the proposed section 18(e) 

determination. The Assistant Secretary 

will decide within 30 days of the last 

day for filing written views or 

comments and requests for a hearing 

whether the objections raised are 

substantial and, if so, will publish 

notice of the time and place of the 

scheduled hearing. 

The Assistant Secretary will, within a 

reasonable time after the close of the 

comment period or after the certification 

of the record if a hearing is held, 

publish his decisions in the Federal 

Register. All written and oral 

submissions, as well as other 

information gathered by OSHA, will be 

considered in any action taken. The 

record of this proceeding, including 

written comments and requests for 

hearing and all materials submitted in 

response to this notice and at any 

subsequent hearing, will be available for 

inspection and copying in the Docket 

Office, Room N–2625, at the previously 

mentioned address, between the hours 

of 8:15 a.m. and 4:45 p.m. 

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 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 OSH Act, which 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. 

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.

List of Subjects in 29 CFR Part 1952 

Intergovernmental relations, Law 

enforcement, Occupational safety and 

health, Occupational Safety and Health 

Administration.

(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 at Washington, DC, this 10th day of 

December, 2004. 

John L. Henshaw, 

Assistant Secretary.

[FR Doc. 04–27565 Filed 12–15–04; 8:45 am] 

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