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[Federal Register Volume 88, Number 167 (Wednesday, August 30, 2023)]
[Rules and Regulations]
[Pages 59793-59796]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18717]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

Oregon State Plan; Extension of Final Approval of a State Plan To 
Cover the Separable Portion of Temporary Labor Camps

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Notification of extending final approval of a State Plan over a 
separable portion.

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SUMMARY: This document gives notice of final approval of the Oregon 
State occupational safety and health plan (State Plan) over temporary 
labor camps under section 18(e) of the Occupational Safety and Health 
Act of 1970 (OSH Act). As a result of this affirmative 18(e) 
determination, the Federal standard and enforcement authority as 
derived from the OSH Act will no longer apply to temporary labor camps 
in Oregon. This notification does not affect or disturb any other 
provisions or standards enforced by the U.S. Department of Labor's Wage 
and Hour Division at temporary labor camps in Oregon pursuant to an 
authority other than the OSH Act. This notification also does not 
affect or disturb the previous grant of final approval in 2005 as to 
all other issues covered by the Oregon State Plan.

DATES: The notification of extension of final approval is effective 
August 30, 2023.

FOR FURTHER INFORMATION CONTACT: 
    For press inquiries: Contact Frank Meilinger, OSHA Office of 
Communications, U.S. Department of Labor; telephone (202) 693-1999; 
email [email protected].
    For general and technical information: Contact Douglas J. 
Kalinowski, Director, OSHA Directorate of Cooperative and State 
Programs, U.S. Department of Labor; telephone (202) 693-2200; email: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Section 18 of the Occupational Safety and Health Act of 1970 (OSH 
Act), 29 U.S.C. 667, provides that states which wish to assume 
responsibility for developing and enforcing their own occupational 
safety and health standards may do so by submitting, and obtaining 
Federal approval of, a state plan (State Plan or Plan). State Plan 
approval occurs in stages, beginning with initial approval under 
section 18(c) of the Act. If, after a period of no less than three 
years following initial approval, the Assistant Secretary determines 
that the State Plan has satisfied and continues to meet all criteria in 
section 18(e) of the OSH Act, the Assistant Secretary may make an 
affirmative determination under section 18(e) of the Act (referred to 
as ``final approval'' of the State Plan), which results in the 
relinquishment of concurrent Federal authority in the state with 
respect to occupational safety and health issues covered by the Plan 
(29 U.S.C. 667(e)). Procedures for section 18(e) determinations are 
found in 29 CFR part 1902, subpart D. In general, to be granted final 
approval, actual operation of the occupational safety and health Plan 
by the state must be at least as effective as the Federal OSHA program 
in all areas covered under the State Plan.

II. State Plan History

A. Final Approval of the Oregon State Plan Except as to Temporary Labor 
Camps

    The Oregon State Plan, administered by the Oregon Department of 
Consumer and Business Services, received initial approval on December 
28, 1972 (37 FR 28628). On January 23, 1975, OSHA and the State of 
Oregon entered into an Operational Status Agreement (OSA), which 
suspended the exercise of concurrent Federal authority in Oregon in all 
except specifically identified areas (40 FR 18427). On December 16, 
2004, OSHA published a notification (69 FR 75436) that the Oregon State 
Plan was eligible for a determination as to whether final approval of 
the Plan should be granted under section 18(e) of the Act for all 
issues covered by the Plan, with the exception of temporary labor camps 
in agriculture, general industry, construction, and logging. The 
notification stated that the issue of temporary labor camps was being 
excluded from final approval at that time pending resolution of OSHA's

[[Page 59794]]

concerns regarding the effectiveness of Oregon's temporary labor camps 
standards.
    After allowing a period for public comment, the Assistant Secretary 
subsequently granted the Oregon State Plan final approval on May 12, 
2005, with respect to all issues covered by the Plan except temporary 
labor camps (70 FR 24947). In granting final approval, the Assistant 
Secretary made an affirmative determination that the Oregon State Plan 
had applied and implemented, in actual operations, each of the criteria 
set forth in section 18(e) of the Act and 29 CFR 1902.37 as to all 
portions of the State Plan except temporary labor camps. In doing so, 
the Assistant Secretary considered various elements of the state Plan, 
including standards, variances, enforcement measures, the public 
employee program, staffing and resources, records and reports, 
voluntary compliance, and injury/illness rates, finding the State Plan 
had effectively applied and implemented each of those elements. Thus, 
the Assistant Secretary determined, the State Plan was at least as 
effective as the Federal program and met the statutory and regulatory 
requirements for final approval.
    As a result of this affirmative determination under section 18(e) 
of the Act, OSHA's standards and enforcement authority over all 
worksites covered by the Oregon State Plan (except temporary labor 
camps) was relinquished. The OSA, effective January 23, 1975, and as 
amended, effective December 12, 1983 and November 27, 1991, was 
superseded by the grant of final approval, except that it continued to 
apply to temporary labor camps in agriculture, general industry, 
construction, and logging.

B. Oregon's Temporary Labor Camps Standards

    OSHA had initially approved the Oregon State Plan's Temporary Labor 
Camps standard on October 1, 1976 (41 FR 43485), concluding that the 
standard was at least as effective as the comparable Federal standard. 
The standard remained substantively unchanged until 2000, when the 
Oregon State Plan, on its own initiative through Administrative Order 
5-2000, adopted revisions to the State's Agricultural Labor Housing 
(ALH) and Related Facilities standard (Division 4/J, OAR 437-004-1120) 
and the Labor Camps standard (Division 2/J, OAR 437-002-0142). Some of 
the updates to the rules included regrouping subjects into more logical 
categories, synchronizing certain definitions to more closely match 
those of other state regulatory agencies such as the Oregon Building 
Codes Division, and changing requirements for garbage and refuse, 
emergency exits, bedding, and ratios of toilet, handwashing, and 
bathing facilities.
    OSHA responded to the Oregon State Plan on February 28, 2001, 
identifying instances in which OSHA had concerns that the State's 
standards were less effective than the comparable Federal rules. Over 
the next several years, OSHA, the Wage and Hour Division (WHD),\1\ and 
the Oregon State Plan continued to engage on this matter in order to 
resolve the identified concerns.
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    \1\ In January 1997, the Secretary of the Department of Labor 
issued Secretary's Orders 5-96 (62 FR 107) and 6-96 (62 FR 111), 
transferring some of OSHA's authority to enforce the Federal Field 
Sanitation standard (29 CFR 1928.110) and Temporary Labor Camps 
standard (29 CFR 1910.142) to what would later become WHD (see 74 FR 
58836). Accordingly, WHD had an interest in the Oregon State Plan's 
temporary labor camps enforcement activity, and OSHA consequently 
sought WHD's input in evaluating the standards.
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    While those conversations were ongoing, OSHA and the Oregon State 
Plan began the separate process of section 18(e) final approval with 
the issuance of a Federal Register notification on December 16, 2004 
(69 FR 75436). However, as noted above, the proposed grant of final 
approval excluded temporary labor camps due to OSHA's then-unresolved 
concerns regarding the effectiveness of Oregon's temporary labor camps 
standards. The 2004 notification of eligibility for final approval 
provided that OSHA intended to work with Oregon to resolve all 
effectiveness issues with regard to its two temporary labor camps 
standards so that final approval could be extended to all covered 
issues (69 FR 75438).
    After further informal discussions with OSHA and WHD, along with 
feedback from its stakeholders, the Oregon State Plan subsequently 
filed changes to its ALH and Related Facilities and Temporary Labor 
Camps standards on March 24, 2008 (Administrative Order 4-2008), to 
make the rules as effective as Federal OSHA's. Some of the major 
changes to the ALH and Related Facilities rule (OAR 437-004-1120) 
included updated requirements for: space and ceiling heights (with 
effective dates of 2018 in some cases); screens; minimum window area; 
shower and sink ratios; nearby livestock operations; ground clearance; 
heating equipment; water pressure; laundry facilities; garbage pickup; 
and privy distance from housing. References to tents were also removed. 
For the Temporary Labor Camps rule (OAR 437-002-0142), Oregon removed 
the entire text of the rule and added new language stating that the ALH 
and Related Facilities rule at OAR 437-004-1120 applies to general 
industry, construction, and forest activities as well as agriculture, 
except for a few limited paragraphs that address certain camp 
registration and closure requirements. Following further communication 
with OSHA, Oregon subsequently made additional changes to the ALH and 
Related Facilities rule on January 26, 2009 (Administrative Order 1-
2009), to reflect changes in heater technology, clarify effective 
dates, and to require enclosed, screened shelters for cooking and 
eating facilities.
    All changes promulgated by Oregon Administrative Orders 4-2008 and 
1-2009 were effective as of January 1, 2018. On August 21, 2018, at the 
quarterly monitoring meeting, the Oregon State Plan Administrator 
requested that OSHA review and consider removal of the temporary labor 
camps exception to the State Plan's 18(e) final approval status. WHD 
approved the changes on December 3, 2020, and the OSHA X regional 
office approved the rules and recommended removal of the temporary 
labor camps exception to Oregon's 18(e) final approval status on 
December 18, 2020.\2\
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    \2\ OSHA's December 18, 2020, approval letter referenced only 
Oregon's ALH and Related Facilities standard, OAR 437-004-1120. 
However, OSHA intended to also approve the separate Temporary Labor 
Camps standard, OAR 437-002-0142, which is identical to the ALH and 
Related Facilities standard except as to certain limited provisions. 
Accordingly, the OSHA X regional office sent a subsequent approval 
letter on May 5, 2022, to clarify that the general industry 
provisions for temporary labor camps addressed by Administrative 
Order 4-2008 were also approved.
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    Subsequently, on May 9, 2022, in response to a March 10, 2020, 
executive order issued by Oregon Governor Kate Brown, the Oregon State 
Plan adopted new ``Rules to Address Employee and Labor Housing Occupant 
Exposure to High Ambient Temperatures'' (pursuant to Administrative 
Order 3-2022), to take effect on June 15, 2022. Specifically, 
Administrative Order 3-2022 established a new Heat Illness Prevention 
standard applicable to general industry workers (OAR 437-002-0156), 
established a new Heat Illness Prevention standard applicable to 
agricultural workers (OAR 437-004-1131), and amended Oregon's ALH and 
Related Facilities standard (OAR 437-004-1120) to add new provisions on 
heat illness prevention in labor housing. OSHA approved this state-
initiated change on June 3, 2022, finding the rules to be at least as 
effective as and more stringent than Federal requirements.

[[Page 59795]]

C. Solicitation of Public Comment and Summary of Comments Received

    On March 13, 2023, OSHA published in the Federal Register a notice 
announcing the Oregon State Plan's eligibility for a final approval 
determination under section 18(e) as to temporary labor camps in 
agriculture, general industry, construction, and logging (88 FR 15458). 
The March 13, 2023, notice invited interested persons to submit, by 
April 17, 2023, written comments and views regarding the Oregon State 
Plan and whether final approval over temporary labor camps should be 
granted. An opportunity to request an informal public hearing by the 
same date was also provided. To assist and encourage public 
participation in the 18(e) determination, a summary of the March 13, 
2023 notice, with an invitation for public comments, was published in 
Oregon on April 1, 2023, in the Oregon Bulletin.\3\
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    \3\ After OSHA publishes a Federal Register notice announcing a 
State Plan's eligibility for an 18(e) determination, OSHA's 
regulations at 29 CFR 1902.39(c) require that the State publish 
reasonable notice containing the same information within the State 
no later than ten days following the Federal Register publication. 
Oregon's notice in this instance was published nine days late. 
However, prior to the Federal Register publication, Oregon had 
notified OSHA that it would only be able to publish notice in the 
Oregon Bulletin on the first of the month in the month immediately 
following Federal Register publication. Moreover, OSHA is not aware 
of any party that was prejudiced by this slightly delayed State 
publication, nor has there been any request for additional time to 
provide public comment or other attempt to provide public comment 
after the April 17, 2023 deadline.
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    In response to the March 13, 2023 proposal, OSHA received one 
comment, which supported the proposal, and no requests for an informal 
hearing. The one comment submitted was from Chuck Stribling, Chair of 
the Occupational Safety and Health State Plan Association (OSHSPA). 
OSHSPA is an organization of twenty-nine State Plans and U.S. 
Territories that have OSHA-approved State Plans. OSHSPA members work 
together to advance occupational safety and health in their respective 
States and Territories. OSHSPA also partners with OSHA, as well as many 
others, on key issues and concerns which impact employee safety and 
health. The comment stated that OSHSPA strongly supports OSHA's 
proposal to grant final approval to the Oregon State Plan over 
temporary labor camp enforcement authority in agriculture, general 
industry, construction, and logging. The comment further noted OSHSPA's 
observation that the Oregon State Plan temporary labor camp 
requirements are more protective than OSHA's requirements.

III. Decision

    In accordance with section 18(e) of the Act and the procedures in 
29 CFR part 1902, and after opportunity for public comment, the 
Assistant Secretary has considered all of the facts and comments 
presented in the record. Based on that record, and for the reasons 
described in further detail in the proposal (88 FR 15460-61), the 
Assistant Secretary has determined that Oregon's occupational safety 
and health program pertaining to temporary labor camps in agriculture, 
general industry, construction, and logging is at least as effective as 
the Federal program in actual operations in providing safe and 
healthful employment and places of employment and meets the criteria 
for final State Plan approval in section 18(e) of the Act and 
implementing regulations at 29 CFR part 1902. Accordingly, under 
section 18(e) of the Act, the exception to the Oregon State Plan's 
final approval for temporary labor camps in agriculture, general 
industry, construction, and logging is hereby removed, effective August 
30, 2023.

IV. Effect of Decision

    The Assistant Secretary's determination granting final approval to 
the Oregon State Plan under section 18(e) of the Act for temporary 
labor camps in general industry, agriculture, construction, and logging 
terminates OSHA authority for concurrent Federal enforcement over 
temporary labor camps in Oregon where such authority is covered under 
the Oregon State Plan, as of the effective date of this determination. 
Section 18(e) provides that upon making this final approval 
determination, ``the provisions of sections 5(a)(2), 8 (except for the 
purpose of carrying out subsection (f) of this section), 9, 10, 13, and 
17 . . . shall not apply with respect to any occupational safety and 
health issues covered under the plan, but the Secretary may retain 
jurisdiction under the above provisions in any proceeding commenced 
under section 9 or 10 before the date of determination.'' 29 U.S.C. 
667(e). Accordingly, this determination relinquishes concurrent Federal 
authority as derived from the OSH Act with respect to temporary labor 
camps in Oregon as follows: to issue citations for violations of the 
relevant Federal standards under sections 5(a)(2) and 9 of the Act; to 
conduct inspections and investigations under section 8 (except those 
necessary to evaluate the Plan under section 18(f) and other 
inspections, investigations, or proceedings necessary to carry out 
Federal responsibilities not specifically preempted by section 18(e)); 
to conduct enforcement proceedings in contested cases under section 10; 
to institute proceedings to correct imminent dangers under section 13; 
and to propose civil penalties or initiate criminal proceedings for 
violations of the Act under section 17. However, the Assistant 
Secretary retains jurisdiction under the above provisions in any 
proceeding commenced under section 9 or 10 of the Act before the 
effective date of the 18(e) determination. Finally, this determination 
supersedes the OSA between OSHA and the State of Oregon, which had 
remained in effect as to temporary labor camps only following the State 
Plan's receipt of final approval as to all other issues in 2005 (70 FR 
24955).
    This final approval determination does not affect Federal authority 
under provisions of the OSH Act not listed in section 18(e), nor does 
it affect Federal enforcement authority over issues which are not 
subject to State Plan enforcement. Additionally, this determination 
does not affect or disturb the authority of the U.S. Department of 
Labor's Wage and Hour Division to enforce Federal temporary labor camp 
standards pursuant to an authority other than the OSH Act, such as the 
Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and 
WHD's regulations governing H-2A employment.
    Under this 18(e) determination, Oregon will be expected to maintain 
a State program that is at least as effective as operations under the 
Federal program in protecting employee safety and health at covered 
workplaces. As provided by section 18(f) of the Act, the Assistant 
Secretary will continue to evaluate the manner in which the State is 
carrying out its Plan. The right to revoke or suspend final approval 
and reinstate Federal enforcement authority or, if the circumstances 
warrant, initiate action to withdraw approval of the State Plan is 
reserved should continuing evaluations show that the State has failed 
to maintain a program which is at least as effective as the Federal 
program, or that the State has failed to submit program change 
supplements as required by 29 CFR part 1953.

V. Federalism

    Executive Order 13132, ``Federalism,'' emphasizes consultation 
between Federal agencies and the States and establishes specific review 
procedures the Federal Government must follow as it carries out 
policies which affect State or local governments. Although the specific 
consultation procedures provided in section 6 of Executive Order

[[Page 59796]]

13132 are not mandatory for final approval decisions under the OSH Act 
because they neither impose a burden upon the State nor involve 
preemption of any State law, OSHA has nonetheless consulted extensively 
with Oregon on the matter of final approval as to temporary labor 
camps.

VI. Regulatory Flexibility Act

    OSHA certifies pursuant to the Regulatory Flexibility Act of 1980 
(5 U.S.C. 601 et seq.) that this final approval determination will not 
have a significant economic impact on a substantial number of small 
entities. Final approval of Oregon's temporary labor camps coverage 
does not place small employers in Oregon under any new or different 
requirements, nor does it add any additional burden upon the State 
government beyond the responsibilities already assumed as part of the 
approved Plan.

Authority

    Douglas L. Parker, Assistant Secretary of Labor for Occupational 
Safety and Health, U.S. Department of Labor, 200 Constitution Avenue 
NW, Washington, DC 20210, authorized the preparation of this document 
under the authority specified by section 18 of the Occupational Safety 
and Health Act of 1970 (29 U.S.C. 667), Secretary of Labor's Order No. 
8-2020 (85 FR 58393 (Sept. 18, 2020)), and 29 CFR part 1956.

    Signed in Washington, DC.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2023-18717 Filed 8-29-23; 8:45 am]
BILLING CODE 4510-26-P
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