[Federal Register Volume 62, Number 185 (Wednesday, September 24, 1997)]
[Rules and Regulations]
[Pages 49908-49910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25307]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952


Oregon State Plan; Approval of Plan Supplements; Changes in Level 
of Federal Enforcement, Including Umatilla Indian Reservation

AGENCY: Occupational Safety and Health Administration (OSHA), U.S. 
Department of Labor.

ACTION: Final rule.

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SUMMARY: This document gives notice of the approval of a State-
initiated plan change and assumption of Federal OSHA enforcement 
authority in the State of Oregon over all private sector 
establishments, including tribal and Indian-owned enterprises, on all 
Indian and non-Indian lands within the currently established boundary 
of the Umatilla Indian Reservation, and on lands outside the 
reservation that are held in trust by the Federal government for the 
Confederated Tribes of the Umatilla (Umatilla Tribes). Oregon OSHA will 
retain its enforcement jurisdiction over public sector (State and local 
government) employees working on these lands.
    This document also gives notice of the approval of several other 
changes in the level of Federal enforcement in the State of Oregon. A 
1991 addendum to Oregon's operational status agreement contained four 
changes to the circumstances under which Federal enforcement 
jurisdiction may be exercised within the State, including situations 
where Oregon is refused entry to an establishment. In addition, Oregon 
has assumed responsibility for worker protection at Superfund sites 
(except on military bases) and with regard to private contractors 
working on U.S. Army Corps of Engineers dam construction projects, as 
reflected in a 1992 Memorandum of Understanding between Federal OSHA 
and the State of Oregon.
    OSHA is hereby amending its regulation on approved plans to reflect 
these changes to the level of Federal enforcement authority in Oregon, 
and correcting a few typographical errors.

EFFECTIVE DATE: September 24, 1997.

FOR FURTHER INFORMATION CONTACT: Bonnie Friedman, Director, Office of 
Public Affairs, Occupational Safety and Health Administration, Room 
N3647, 200 Constitution Avenue, N.W., Washington, D.C. 20210, Telephone 
(202) 219-8148.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 18 of the Occupational Safety and Health Act of 1970 (the 
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 approval occurs in stages 
which include initial approval under section 18(c) of the Act and, 
ultimately, final approval under section 18(e). In the interim, between 
initial approval and final approval, there is a period of concurrent 
Federal/State jurisdiction within a State operating an approved plan. 
See 29 CFR 1954.3 for guidelines and procedures.
    The Oregon Occupational Safety and Health State plan was approved 
under section 18(c) of the Act and part 1902 of this chapter on 
December 28, 1972 (37 FR 28628). 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 
all except specifically identified areas. The agreement was amended on 
December 12, 1983 and on November 27, 1991. Except for this last 
amendment, the pertinent provisions concerning level of Federal 
enforcement in Oregon are codified at 29 CFR 1952.105.
    By letters of April 29, 1997 and July 14, 1997 from Peter DeLuca, 
Administrator, Oregon Occupational Safety and Health Division (OR-OSHA) 
to Richard Terrill, Acting Regional Administrator, the State of Oregon 
has requested that Federal OSHA assume enforcement authority in Oregon 
over

[[Page 49909]]

all private sector establishments, including tribal and Indian-owned 
enterprises, on all Indian and non-Indian lands within the currently 
established boundary of the Umatilla Indian Reservation, and on lands 
outside the reservation that are held in trust now and in the future by 
the Federal government for the Confederated Tribes of the Umatilla. 
These Umatilla Tribes trust lands currently include the Conforth Ranch 
near Umatilla, Oregon, lands located outside the currently established 
reservation boundary yet inside the 1871 Surveyed Treaty Boundary, and 
some parcels located outside the surveyed treaty boundary in the Indian 
Lakes Area of Umatilla County, Oregon. These trust lands are 
established on a map developed by the tribal planning office and 
updated periodically. Any acquisitions by the Umatilla Tribes of fee 
lands outside the reservation boundary that are converted in the future 
to trust land will be documented by the legal description in the formal 
request for conversion to trust land that is filed with the county. In 
its letters the State indicated that it will continue to provide 
consultation, training and technical services to all these employers 
and employees after the jurisdiction change. In addition, OR-OSHA will 
maintain enforcement jurisdiction over public sector (State and local 
government) employees working on these lands. Oregon also noted in its 
letters that Tribal or Indian-owned enterprises operating outside the 
established boundary of the Umatilla Indian Reservation or off tribal 
trust lands will also remain under OR-OSHA's enforcement jurisdiction. 
The State of Oregon made this request because of problems regarding the 
exercise of Oregon's occupational safety and health enforcement 
authority on Umatilla lands.
    This document also gives notice of several other changes in the 
level of Federal enforcement in the State of Oregon. A November 27, 
1991 addendum to Oregon's operational status agreement provides that 
Federal OSHA retains enforcement responsibility for (1) new Federal 
standards not yet adopted by the State; (2) situations where the State 
is refused entry and is unable to obtain a warrant or enforce the right 
to entry; (3) enforcement of unique and complex standards as determined 
by the Assistant Secretary; and (4) situations where the State is 
unable to exercise its enforcement authority fully or effectively.
    In addition, OR-OSHA has assumed jurisdiction for both private and 
public sector employees at Superfund sites in the State of Oregon 
(except those on U.S. military reservations), and for private 
contractors working on U.S. Army Corps of Engineers dam construction 
projects, including reconstruction of docks and other appurtenances. 
Federal OSHA retains jurisdiction over all other worksites, including 
Superfund sites, that are located within the borders of U.S. military 
reservations in Oregon. These changes in the level of Federal 
enforcement have been clarified in an October 20, 1992 Memorandum of 
Understanding between Federal OSHA and the State of Oregon. The 
Superfund changes resulted from OSHA Instruction CPL 2, February 8, 
1988, which required States with OSHA-approved State plans to cover 
Superfund sites.

B. Decision

    After careful consideration, OSHA is approving under part 1953 of 
this chapter the Oregon State-initiated plan changes described above. 
Concurrently, OSHA is announcing its assumption of Federal enforcement 
authority in Oregon concerning the Confederated Tribes of the Umatilla, 
as specified above. OSHA is hereby amending 29 CFR part 1952 to reflect 
these changes in the level of Federal enforcement, correct a few 
typographical errors, and revise the format.

C. Location of Supplements for Inspection and Copying

    A copy of the plan supplements, along with the approved plan, may 
be inspected and copied during normal business hours at the following 
locations: Office of State Programs, Occupational Safety and Health 
Administration, Room N-3700, 200 Constitution Avenue, N.W., Washington, 
D.C. 20210; Office of the Regional Administrator, Occupational Safety 
and Health Administration, 1111 Third Avenue, Suite 715, Seattle, 
Washington 98101-3212; and the Oregon Occupational Safety and Health 
Division, Department of Consumer and Business Services, 350 Winter 
Street, N.E., Room 430, Salem, Oregon 97310. For electronic copies of 
this Federal Register notice, contact OSHA's WebPage at <a href="http://
www.osha.gov/">http://
www.osha.gov/</a>.

D. Public Participation

    OSHA is amending 29 CFR part 1952 to reflect changes to the level 
of Federal enforcement described above. In light of the discussions 
with the Umatilla Tribes and the State on the resumption of Federal 
enforcement authority concerning the Umatilla Tribes, OSHA believes 
that further public participation regarding this amendment to part 1952 
would be unnecessary. Regarding the other amendments to the level of 
Federal enforcement in Oregon, these changes are procedural in nature 
and were effected in 1991 and 1992 upon signature of the parties; 
accordingly, further public participation regarding these additional 
amendments to part 1952 would also be unnecessary.

List of Subjects in 29 CFR Part 1952

    Intergovernmental relations, Law enforcement, Occupational safety 
and health.

    This document was prepared under the direction of Greg Watchman, 
Acting Assistant Secretary of Labor for Occupational Safety and Health. 
It is issued under Section 18 of the OSH Act (29 U.S.C. 667), 29 CFR 
part 1902, and Secretary of Labor's Order No. 1-90 (55 FR 9033).

    Signed at Washington, DC, this 5th day of September 1997.
Greg Watchman,
Acting Assistant Secretary of Labor.

    For the reasons set out in the preamble, 29 CFR part 1952, subpart 
D (Oregon), is hereby amended as set forth below.

PART 1952--[AMENDED]

    1. The authority citation of part 1952 continues to read as 
follows:

    Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR part 
1902, Secretary of Labor's Order No. 1-90 (55 FR 9033).

Subpart D--Oregon

    2. Section 1952.105 is amended by revising paragraph (a) to read as 
follows:


Sec. 1952.105  Level of Federal enforcement.

    (a) Pursuant to Secs. 1902.20(b)(1)(iii) and 1954.3 of this chapter 
under which an operational status agreement has been entered into with 
Oregon, effective January 23, 1975, and as amended, effective December 
12, 1983 and November 27, 1991; and based on a determination that 
Oregon is operational in the issues covered by the Oregon occupational 
safety and health plan, discretionary Federal enforcement authority 
under section 18(e) of the Act, 29 U.S.C. 667(c), will not be initiated 
with regard to Federal occupational safety and health standards in 
issues covered under 29 CFR parts 1910, 1926 and 1928 except as 
provided in this section. The U.S. Department of Labor will continue to 
exercise authority among other things with regard to:
    (1) Complaints filed with the U.S. Department of Labor alleging

[[Page 49910]]

discrimination under section 11(c) of the Act (29 U.S.C. 660(c));
    (2) Standards in the maritime issues covered by 29 CFR parts 1915, 
1917, 1918, and 1919 (shipyards, marine terminals, longshoring, and 
gear certification), and enforcement of general industry and 
construction standards (29 CFR parts 1910 and 1926) appropriate to 
hazards found in these employments, which have been specifically 
excluded from coverage under the plan;
    (3) Enforcement of new Federal standards until the State adopts a 
comparable standard;
    (4) Enforcement in situations where the State is refused entry and 
is unable to obtain a warrant or enforce its right of entry;
    (5) Enforcement of unique and complex standards as determined by 
the Assistant Secretary;
    (6) Enforcement in situations when the State is unable to exercise 
its enforcement authority fully or effectively;
    (7) Enforcement of occupational safety and health standards at 
worksites located within the Warm Springs Indian Reservation;
    (8) Enforcement of occupational safety and health standards at all 
private sector establishments, including tribal and Indian-owned 
enterprises, on all Indian and non-Indian lands within the currently 
established boundary of the Umatilla Indian Reservation, and on lands 
outside the reservation that are held in trust by the Federal 
government for the Confederated Tribes of the Umatilla;
    (9) Enforcement of occupational safety and health standards at 
worksites located within Federal military reservations, except private 
contractors working on U.S. Army Corps of Engineers dam construction 
projects, including reconstruction of docks or other appurtenances; 
and,
    (10) Investigations and inspections for the purpose of the 
evaluation of the plan under sections 18 (e) and (f) of the Act (29 
U.S.C. 667 (e) and (f)).
* * * * *
    3. Section 1952.107 is amended by adding paragraph (f) to read as 
follows:


Sec. 1952.107  Changes to approved plans.

* * * * *
    (f) Oregon's State plan changes excluding coverage under the plan 
of all private sector employment (including tribal and Indian-owned 
enterprises) on Umatilla Indian reservation or trust lands, by letters 
of April 29 and July 14, 1997 (see Secs. 1952.105); extending coverage 
under the plan to Superfund sites and private contractors working on 
U.S. Army Corps of Engineers dam construction projects, as noted in a 
1992 Memorandum of Understanding; and specifying four (4) unusual 
circumstances where Federal enforcement authority may be exercised, as 
described in a 1991 addendum to the State's operational status 
agreement, were approved by the Acting Assistant Secretary on September 
24, 1997.

[FR Doc. 97-25307 Filed 9-23-97; 8:45 am]
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