Oregon State Plan; Final Approval Determination, 24947-24955 [05-9321]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 70, Number 91 (Thursday, May 12, 2005)]
[Rules and Regulations]
[Pages 24947-24955]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-9321]



[[Page 24947]]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

[Docket No. T-027A]
RIN 1218-AC13


Oregon State Plan; Final Approval Determination

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

ACTION: Final state plan approval.

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SUMMARY: This document amends OSHA's regulations to reflect the 
Assistant Secretary's decision to grant final approval to the Oregon 
State Plan. As a result of this affirmative determination under Section 
18(e) of the Occupational Safety and Health Act of 1970, Federal OSHA's 
standards and enforcement authority no longer apply and Federal 
concurrent jurisdiction is relinquished with respect to occupational 
safety and health issues covered by the Oregon plan (with the exception 
of temporary labor camps). Federal enforcement jurisdiction is retained 
over 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.

EFFECTIVE DATE: May 12, 2005.

FOR FURTHER INFORMATION CONTACT: For general information and press 
inquiries, contact Kevin Ropp, Director, 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. An electronic copy of this Federal 
Register notice is available on OSHA's Web site at https://www.osha.gov.

SUPPLEMENTARY INFORMATION: 

Introduction

    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 29 CFR 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).
    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, promulgated 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 applicable to those issues covered by the state plan if 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.
    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)). Procedures for 
Section 18(e) determinations are found at 29 CFR part 1902, subpart D. 
In general, in order to be granted final approval, actual performance 
by the state must be ``at least as effective'' overall 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 in AFL-CIO v. Marshall, 
C.A. No.74-406, 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.
    Another 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 necessary to continually evaluate whether the 
state's performance meets the statutory and regulatory criteria for 
final and continuing approval.

History of the Oregon Plan and of Its Compliance Staffing Benchmarks

    A history of the Oregon State Plan, a description of its 
provisions, and a discussion of the compliance staffing benchmarks 
established for Oregon are contained in the December 16, 2004 Federal 
Register notice (69 FR 75436) proposing that final approval under 
section 18(e) of the Act be granted. The Oregon State Plan was 
submitted on June 6, 1972, and initially approved on December 22, 1972 
(37 FR 28628, Dec. 28, 1972). Concurrent Federal enforcement 
jurisdiction was suspended on January 23, 1975 (40 FR 18427, April 28, 
1975). The Oregon State Plan was certified as having completed all 
developmental steps on September 15, 1982 (47 FR 42105, Sept. 24, 
1982), and revised compliance staffing benchmarks for Oregon were 
approved on August 11, 1994 (59 FR 42493, Aug. 18, 1994).

History of the Present Proceedings

    Procedures for final approval of State plans are set forth at 29 
CFR part 1902, subpart D. On December 16, 2004, OSHA published notice 
(69 FR 75436) that the Oregon State Plan was eligible

[[Page 24948]]

for a determination as to whether final approval of the plan should be 
granted under Section 18(e) of the Act. The determination of 
eligibility was based on the monitoring of state operations for at 
least one year following certification, state participation in the 
Federal-state Integrated Management Information System, and staffing in 
accordance with the revised state compliance staffing benchmarks.
    The December 16, 2004, Federal Register notice set forth a general 
description of the Oregon State Plan and summarized the results of 
Federal OSHA's monitoring of state operations during the period from 
October 1, 2002 through September 30, 2003. In addition to the 
information set forth in the notice itself, OSHA made available as part 
of the record extensive and detailed exhibits documenting the plan, 
including copies of the state legislation, administrative regulations, 
and procedural manuals under which Oregon operates its plan.
    The most recent comprehensive evaluation report covering the period 
of October 1, 2002, through September 30, 2003, which was extensively 
summarized in the December 16, 2004, proposal and provided the 
principal factual basis for the proposed 18(e) determination, was 
included in the docket.
    To assist and encourage public participation in the 18(e) 
determination, copies of all docket materials were available 
electronically at https://dockets.osha.gov, and were maintained in the 
OSHA Docket Office in Washington, DC, in the OSHA Regional Office in 
Seattle, and at the Oregon Occupational Safety and Health Division in 
Salem, Oregon. A summary of the December 16, 2004, notice, with an 
invitation for public comments, was published in Oregon on December 17, 
2004, in The Oregonian.
    The December 16, 2004, notice invited interested persons to submit, 
by January 18, 2005, written comments and views regarding the Oregon 
plan and whether final approval should be granted. An opportunity to 
request an informal public hearing also was provided. Seven comments 
were received in response to this proposal; none requested an informal 
hearing.

Summary and Evaluation of Comments

    OSHA has encouraged interested members of the public to provide 
information and views regarding operations under the Oregon plan to 
supplement the information already gathered during OSHA's monitoring 
and evaluation of plan administration.
    In response to the December 16, 2004, proposal, OSHA received 
comments from: John Kirkpatrick, Business Representative, International 
Union of Painters and Allied Trades, AFL-CIO [Ex. 5-1]; Jim Geisinger, 
Executive Vice President, Associated Oregon Loggers, Inc. [Ex. 5-2]; 
Brian Clarke, Corporate Safety Director, Hoffman Construction Companies 
[Ex.5-3]; Daniel J. Sabatino, Loss Control Consultant, Safety & Risk 
Management Consulting [Ex. 5-4]; Steven F. Ramsey, Loss Control 
Manager, Safeway, Inc.--Portland Division [Ex. 6-1]; Lynda Enos, 
Ergonomics Consultant, Human Fit [Ex. 6-2]; and Patrick M. Bridges, 
Oregon Home Builders Association [Ex. 6-3]. All seven comments 
expressed unqualified support for final approval. All of these comments 
indicated that Oregon has established and operates a safety and health 
program that effectively protects employees.
    Specifically, the commenters commended the Oregon State Plan for, 
among other things: (1) Making significant progress in reducing work-
related injuries; (2) having proactive and competent leadership; (3) 
maintaining a compliance, consultant and technical staff that is highly 
trained, very professional, accommodating, fair and technically 
accurate; (4) providing excellent web-based and classroom safety 
training (including for small businesses); (5) making extensive efforts 
to address ergonomics and safety issues in health care facilities; (6) 
developing partnerships with businesses and professional associations 
to provide high quality safety and health education and injury 
prevention activities and programs to employers, employees and safety 
and health professionals; (7) adopting an exemplary logging code which 
recognizes the unique and site-specific characteristics of the Pacific 
Northwest logging industry; and (8) creating innovative committees that 
provide grants to identify and create training programs for workplace 
safety and health, scholarships for dependents of workers killed or 
permanently disabled in workplace accidents, and funding to make 
workplace modifications to improve safety.

Findings and Conclusions

    As required by 29 CFR 1902.41, in considering the granting of final 
approval to a state plan, OSHA has carefully and thoroughly reviewed 
all information available to it on the actual operation of the Oregon 
State Plan. This information has included all previous evaluation 
findings since certification of completion of the state plan's 
developmental steps, especially data for the period October 1, 2002 
through September 30, 2003, and information presented in written 
submissions. Findings and conclusions in each of the areas of 
performance are as follows:
    (1) Standards. 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. See also 29 CFR 1902.3(c)(1) and 
1902.4(b)(2)(i)-(ii). If the state adopts standards that are not 
identical to corresponding Federal standards, they must be promulgated 
through a procedure allowing for the consideration of all pertinent 
factual information and the participation of all interested persons (29 
CFR 1902.4(b)(2)(iii)). Additionally, the state program must provide 
for prompt and effective standards setting actions when necessary to 
protect workers from new and unforeseen hazards, e.g., via the 
authority to promulgate emergency temporary standards (29 CFR 
1902.4(b)(2)(v)). State standards must protect employees from exposure 
to hazards, e.g., by requiring the use of suitable protective equipment 
or technological controls (29 CFR 1902.4(b)(2)(vii)). Standards dealing 
with toxic materials or harmful physical agents must assure that each 
exposed employee will be protected throughout his or her working life 
(29 CFR 1902.4(b)(2)(i)). In addition, state standards generally must 
provide for furnishing employees with appropriate information regarding 
hazards in their workplaces, e.g., through labels, postings, and 
medical examinations (29 CFR 1902.4(b)(2)(vi)). Where applicable to 
products distributed or used in interstate commerce, state standards 
that differ from Federal standards must be required by compelling local 
conditions and not pose an undue burden on interstate commerce (29 CFR 
1902.3(c)(2)).
    In order to qualify for final state plan approval, a state program 
must be found to have adhered to its approved procedures (29 CFR 
1902.37(b)(2)), to have timely adopted all Federal standards or 
standards that are at least as effective (29 CFR 1902.37(b)(3)), to 
have interpreted and applied its standards in a manner consistent with 
the Federal program (29 CFR 1902.37(b)(4)), and to have corrected any 
deficiencies resulting from administrative or judicial challenges to 
the state standards (29 CFR 1902.37(b)(5)).
    Oregon's laws and regulations, previously approved by OSHA and made 
a part of the record in this proceeding, as written and applied, are in 
accord with all of the requirements

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for state standards set out above and in 29 CFR part 1902. As 
documented in the approved Oregon State Plan and OSHA's evaluation 
findings made a part of the record in this 18(e) determination 
proceeding, and as discussed in the December 16, 2004, notice, the 
Oregon plan provides for the adoption of standards and amendments 
thereto which are either identical or equivalent to Federal standards. 
And as noted in the 18(e) Evaluation Report and summarized in the 
December 16, 2004 Federal Register notice, in actual operation Oregon 
has adopted standards in a timely manner which are either identical to 
or at least as effective as Federal standards.
    Although Oregon does not automatically adopt standards which are 
identical to the Federal standards, it usually adopts Federal standards 
by reference and sometimes adds state-initiated provisions under its 
own regulatory numbering system. Oregon OSHA (``OR-OSHA'') adopts 
standards through a promulgation process that provides notification to 
the public of its intent to adopt a standard. OR-OSHA publishes the 
proposed standard in the Secretary of State's Bulletin, asks for 
comments, and may hold hearings. After review of all comments, 
appropriate revisions are made and the standard is formally adopted and 
its effective date established. When OR-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, OR-OSHA'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 
their Federal counterparts, 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 those relating to workplace 
safety committees, crane operator training, thiram, reinforced plastics 
manufacturing, ornamental tree and shrub services, and some forest 
activities (logging) requirements.
    OSHA's monitoring has found that OR-OSHA has interpreted and 
applied its standards in a manner comparable to the Federal program. 
There have been administrative and judicial challenges to the standards 
in Oregon, but they have all been satisfactorily resolved.
    Therefore, in accordance with Section 18(c)(2) of the Act and the 
pertinent provisions of 29 CFR 1902.3, 1902.4 and 1902.37, OSHA finds 
that the Oregon program, in actual operation, provides for standards 
adoption, correction (when found deficient), interpretation, and 
application at least as effective as the Federal program.
    (2) Variances. A state plan is expected to have authority and 
procedures for granting variances comparable to the Federal program (29 
CFR 1902.4(b)(2)(iv)). The Oregon State Plan contains such provisions 
in laws and regulations which have been previously approved by OSHA. In 
order to qualify for final state plan approval, permanent variances 
granted must assure employment equally as safe and healthful as would 
be provided by compliance with the standard (29 CFR 1902.37(b)(6)). 
Temporary variances granted must assure compliance as early as possible 
(29 CFR 1902.37(b)(7)). As noted in the 18(e) Evaluation Report and the 
December 16, 2004 notice, Oregon granted three permanent variances 
during the 18(e) evaluation period, and all were processed in 
accordance with state procedures and the criteria in 29 CFR part 1902. 
During the Section 18(e) evaluation period, no temporary variances were 
granted.
    Accordingly, OSHA finds that the Oregon program is able to 
effectively grant variances from its occupational safety and health 
standards.
    (3) Enforcement. Section 18(c)(2) of the Act and 29 CFR 
1902.3(d)(1) require state programs to enforce standards in a manner 
that is and will continue to be at least as effective in providing safe 
and healthful employment and places of employment as the Federal 
program. See also Section 18(c)(4) of the Act and 29 CFR 1902.3(g). The 
state must require employer and employee compliance with all applicable 
standards, rules and orders (29 CFR 1902.3(d)(2)) and must have the 
legal authority for standards enforcement, including compulsory process 
(29 CFR 1902.4(c)(2)).
    The Oregon occupational safety and health statutes and implementing 
regulations, previously approved by OSHA, establish employer and 
employee compliance responsibility and contain legal authority for 
standards enforcement in terms at least as effective as those in the 
Federal Act. In order to be qualified for final approval, the state 
must have adhered to all approved procedures to ensure an at least as 
effective compliance program (29 CFR 1902.37(b)(2)). The 18(e) 
Evaluation Report indicates no significant lack of adherence to such 
procedures.
    (a) Inspections. In order to qualify for final approval, the state 
program, as implemented, must allocate sufficient resources toward 
high-hazard workplaces while providing adequate attention to other 
covered workplaces (29 CFR 1902.37(b)(8)). See also 29 CFR 
1902.4(c)(2)(i). Data contained in the 18(e) Evaluation Report noted 
that 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 is 
focused on reducing silica exposures, lead in construction exposures, 
and fall hazards. The state has targeted inspections in the following 
industries with high rates of injuries and illnesses: Agriculture, 
construction, lumber/wood, food/kindred products, and health care. 
During the period from October 2002 through September 2003, 76% of 
Oregon's safety inspections and 44% of health inspections were 
programmed. During this period, 40% of programmed safety inspections 
and 25% of programmed health inspections uncovered serious, willful, or 
repeat violations. This is less than the percentage of Federal 
programmed inspections with serious violations; however, 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. Therefore, OSHA has 
concluded that the state's inspection targeting system is satisfactory.
    (b) Employee Notice and Participation in Inspections. State plans 
must provide for inspections in response to employee complaints and 
must provide an opportunity for employees and their representatives to 
point out possible violations through such means as employee 
participation during the inspection (29 CFR 1902.4(c)(2)(i)-(iii)).
    Oregon has procedures similar to those used by Federal OSHA for 
processing and responding to complaints and providing for employee 
participation in inspections. The data indicate that during the 
evaluation

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period the state was timely in responding to employee complaints, 
responding to 95% of serious safety and health complaints by inspection 
within the prescribed time frame of 5 working days. In addition, OR-
OSHA provided complainants with timely response letters 94% of the 
time. During FY 2003, Oregon responded to 729 safety and health 
complaints.
    Like Federal OSHA, the state has procedures which require that 
employees have an opportunity to participate in inspections, either 
through representation on the walkaround or through a reasonable number 
of employee interviews. No problems have been noted concerning employee 
participation in Oregon inspections.
    In addition, the state plan must provide that employees be informed 
of their protections and obligations under the Act by such means as the 
posting of notices (29 CFR 1902.4(c)(2)(iv)). Also, the state plan must 
ensure that employees have access to information about their exposure 
to regulated agents (29 CFR 1902.4(c)(vi)).
    To inform employees and employers of their protections and 
obligations, Oregon requires that a poster approved by OSHA be 
displayed in all covered workplaces. Requirements for the posting of 
the poster and other notices such as citations, contests, hearings and 
variance applications are set forth in the previously approved state 
law and regulations which are at least as effective as Federal 
requirements. Information about employee exposure to regulated agents 
is provided through state standards which are identical to or at least 
as effective as the Federal. No problems have been noted regarding 
notice of these actions to employers and employees. Therefore, OSHA has 
concluded that the state's performance in this area is effective.
    (c) Nondiscrimination. State plans are expected to protect 
employees against discharge or discrimination for exercising their 
rights under the state's program. The state program must include 
provisions providing for employer sanctions and employee 
confidentiality (29 CFR 1902.4(c)(2)(v)). Section 654.062(5) of the 
Oregon Safe Employment Act and state regulations provide 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. OR-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. OR-OSHA is actively working with BOLI to improve case 
determination timeliness, to ensure that a review of the ``prima 
facie'' elements is conducted for every discrimination complaint, and 
to create case file documentation whenever a decision is made not to 
conduct an investigation. The administrator of the Civil Rights 
Division of BOLI has expressed BOLI's commitment to addressing OSHA's 
concerns. BOLI's investigations showed substantial improvement in FY 
2004, when 21 of 23 cases reviewed contained ``prima facie'' analysis. 
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. Therefore, OSHA concludes that 
Oregon's performance in this area is satisfactory.
    (d) Restraint of Imminent Danger; Protection of Trade Secrets. A 
state plan is required to provide for the prompt restraint of imminent 
danger situations (29 CFR 1902.4(c)(2)(vii)) and to provide adequate 
safeguards for the protection of trade secrets (29 CFR 
1902.4(c)(2)(viii)). The state has provisions concerning imminent 
danger and protection of trade secrets in its law, regulations, and 
operations manual which are at least as effective as the corresponding 
federal provisions. Oregon has authority to issue a red warning notice 
to prohibit the use of a machine, piece of equipment, or place of 
employment in imminent danger and other situations. Oregon responded to 
59 imminent danger complaints during the evaluation period, 98% of the 
time within 24 hours. There were no Complaints About State Program 
Administration (CASPAs) filed concerning the protection of trade 
secrets during the report period.
    (e) Right of Entry; Advance Notice. A state program must have a 
right to enter and inspect all covered workplaces, and a compulsory 
process to enforce those rights, such that its inspection authority is 
equivalent to that of Federal OSHA (Section 18(c)(3) of the Act and 29 
CFR 1902.3(e)). In addition, the state is expected to prohibit advance 
notice of inspection, allowing exceptions thereto no broader than those 
provided for under the Federal program (29 CFR 1902.3(f)). Section 
654.067 of the Oregon Safe Employment Act provides for an inspector's 
right to enter and inspect all covered workplaces in terms 
substantially identical to those in the Federal Act. The Oregon law 
also prohibits advance notice, and implementing procedures for 
exceptions to this prohibition are substantially identical to the 
Federal procedures.
    In order to be found qualified for final approval, a state is 
expected to take action to enforce its right of entry when denied (29 
CFR 1902.37(b)(9)) and to adhere to its advance notice procedures. 
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. 
During the evaluation period, no advance notice of inspections was 
given.
    (f) Citations, Penalties, and Abatement. A state plan is expected 
to have authority and procedures for promptly notifying employers and 
employees of violations identified during inspections, for issuing 
first-instance and other sanctions against employers found in violation 
of standards, and for promptly notifying employers of penalties (29 CFR 
1902.4(c)(2)(x) and (xi)).
    In order to be qualified for final approval, the state, in actual 
operation, must be found to conduct competent inspections in accordance 
with approved procedures and to obtain adequate information to support 
resulting citations (29 CFR 1902.37(b)(10)). The state must issue 
citations, proposed penalties and failure-to-abate notifications in a 
timely manner (29 CFR 1902.37(b)(11)), propose penalties for first-
instance and other violations in a manner that is at least as effective 
as the Federal program (29 CFR 1902.37(b)(12)), and ensure the 
abatement of hazards (including via the issuance of failure-to-abate 
notices and appropriate penalties) (29 CFR 1902.37(b)(13)).
    The Oregon plan, through its law, regulations, and operations 
manual, has established a system, similar to the Federal program, that 
provides for the prompt issuance of citations delineating violations 
and establishing reasonable abatement periods, requires the posting of 
such citations for employee information, and allows for the proposal of 
appropriate penalties. In addition to issuing citations, the state 
issues ``Orders to Correct.'' The Order to Correct carries no penalty 
but requires abatement and may serve as the basis for repeated and 
failure-to-abate violations. Its use is limited and occurs primarily 
when a small construction employer who has failed to establish a 
required safety committee agrees to implement an ``innovative'' safety 
committee. It is also used to require the correction of safety and 
health hazards in the rare situation when a citation cannot be issued 
within 180 days and when legal

[[Page 24951]]

estoppel issues interfere with issuing a citation. Procedures for the 
Oregon occupational safety and health compliance program are set out in 
the Oregon Field Inspection Reference Manual, which has been determined 
to contain policies and procedures at least as effective as those in 
the Federal compliance manual.
    The 18(e) Evaluation Report notes overall adherence by Oregon to 
its inspection procedures. Oregon cited an average of 2.9 violations 
per inspection. 40% of safety and 25% of health violations were cited 
as serious, willful, or repeat. The percentages of serious safety and 
health violations were lower than the comparable Federal percentages, 
but 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. No systemic problems 
relating to violation classification have been found. The state 
continues to provide compliance officers with specific training and 
direction to ensure that violations are properly classified. Oregon's 
lapse time from the opening conference to issuance of a citation 
averaged 38 days for safety and 74 days for health. Though the state's 
health citations lapse time was greater than the national average of 63 
days, it dropped to 69 days by the middle of FY 2004.
    Oregon's procedures for calculating penalties are different than 
OSHA's. The state uses lower base penalty amounts to calculate the 
probability/severity-based (gravity-based) penalty, applies different 
calculations to combined or grouped violations, and applies different 
calculations for penalty adjustment factors. Although these differences 
result in lower average penalties in Oregon ($365 for serious 
violations in FY 2003), no deficiencies in program operations 
attributable to these differences were noted.
    Ninety-six percent (96%) of safety violations in Oregon had 
abatement periods of fewer than 30 days, and 97% of health violations 
had abatement periods of fewer than 60 days. This surpasses Federal 
performance.
    Although an Oregon statute affords employers the right to withhold 
the results of voluntary safety and health self-audits conducted by 
private consultants, this self-audit privilege is very limited, has 
never been invoked by employers, and has had no negative impact on the 
state's ability to identify and cite violations. While OSHA and the 
U.S. Department of Labor 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. See 69 FR 75446 
(Dec. 16, 2004).
    (g) Contested Cases. A state plan must have procedures for 
employers to contest citations, penalties and abatement requirements at 
full administrative or judicial hearings. Employees must have an 
opportunity to participate as parties in proceedings resulting from an 
employer's contest (29 CFR 1902.4(c)(2)(xii)). Oregon's contest 
procedures and procedures for ensuring employees' participation rights 
are contained in the law, regulations, and operations manual that have 
been made a part of the record in this proceeding. The Oregon plan 
provides for the review of contested cases by the Workers' Compensation 
Board, an independent administrative board. Decisions of the Board may 
be appealed to the Oregon Court of Appeals. OR-OSHA had fewer 
violations vacated, fewer serious violations reclassified, and smaller 
penalty reductions after appeal than Federal OSHA during the same 
period.
    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 29 CFR 1902.37(b)(14). There was no OR-OSHA 
appellate level contested case activity during the evaluation 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).
    (h) Enforcement Conclusion. In summary, OSHA finds that enforcement 
operations provided under the Oregon plan are competently planned and 
conducted, and are overall at least as effective as Federal OSHA 
enforcement.
    (4) Public Employee Program. Section 18(c)(6) of the Act requires 
that a state with an approved plan maintain an effective and 
comprehensive safety and health program applicable to all employees of 
public agencies of the state and its political subdivisions. That 
program must be as effective as the standards contained in an approved 
plan. 29 CFR 1902.3(j) requires that a state's program for public 
employees be as effective as its program for private employees covered 
by the plan. The Oregon plan provides a program in the public sector 
which is comparable to the private sector program, including with 
respect to the assessment of penalties for serious violations. In 
Oregon, injury and illness rates in the public sector are comparable to 
private sector rates.
    During the 18(e) evaluation period, the state conducted 4.9% of its 
total inspections in the public sector, and results were comparable to 
the private sector. Because Oregon's performance in the public sector 
is comparable to that in the private sector, OSHA concludes that the 
Oregon program meets the criteria in 29 CFR 1902.3(j).
    (5) Staffing and Resources. Section 18(c)(4) of the Act requires 
state plans to provide the qualified personnel necessary for the 
enforcement of standards. See also 29 CFR 1902.3(h). In accordance with 
29 CFR 1902.37(b)(1), one factor which OSHA must consider in evaluating 
a plan for final approval is whether the state has a sufficient number 
of adequately trained and competent personnel to discharge its 
responsibilities under the plan.
    The Oregon plan provides for 52 safety compliance officers and 28 
industrial hygienists as set forth in the Oregon FY 2003 and FY 2004 
grant applications. This staffing level exceeds the revised ``fully 
effective'' health and safety staffing benchmarks for Oregon of 47 
safety compliance officers and meets the benchmark of 28 industrial 
hygienists approved by OSHA on August 11, 1994 (59 FR 42493, Aug. 18, 
1994). At the close of the evaluation period, the state had 98% of 
safety and 96% of health compliance officer positions filled.
    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 to provide a process through which major rule 
changes and shifts in technology can be addressed division-wide.
    Because Oregon has allocated sufficient enforcement staff to meet 
the revised benchmarks, and personnel are trained and competent, the 
requirements for final approval set forth in 29 CFR 1902.37(b)(1) and 
in the court order in AFL-CIO v. Marshall are being met by the Oregon 
plan.
    Section 18(c)(5) of the Act requires that the state devote adequate 
funds to administration and enforcement of its standards. See also 29 
CFR 1902.3(i). Oregon has consistently provided state matching funds 
well in excess of Federal funding. In the Fiscal Year 2005

[[Page 24952]]

initial grant award, the state has provided 72.6% of the total budget 
for its occupational safety and health program. Total initial funding 
for the state program in Fiscal Year 2005 is $18,604,237. ($5,105,000 
Federal, $13,499,237 state).
    As noted in the 18(e) Evaluation Report, Oregon's funding exceeds 
Federal requirements in absolute terms; moreover, the state allocates 
its resources to the various aspects of the program in an effective 
manner. On this basis, OSHA finds that Oregon has provided sufficient 
funding and resources for the various activities carried out under the 
plan.
    (6) Records and Reports. State plans must assure that employers 
submit reports to the Secretary in the same manner as if the plan were 
not in effect (Section 18(c)(7) of the Act and 29 CFR 1902.3(k)). The 
plan must also provide assurance that the designated agency will make 
reports to the Secretary in such form and containing such information 
as the Secretary may from time to time require (section 18(c)(8) of the 
Act and 29 CFR 1902.3(1)).
    Oregon employer recordkeeping requirements are identical to those 
of Federal OSHA (including all recent Federal revisions) with regard to 
the recording and reporting of injuries, illnesses and fatalities, 
although they differ in other areas. The state participates in the BLS 
Annual Survey of Occupational Injuries and Illnesses 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. The 
state participates and 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.
    For the foregoing reasons, OSHA finds that Oregon has met the 
requirements of sections 18(c)(7) and (8) of the Act on employer and 
state reports to the Secretary.
    (7) Voluntary Compliance. A state plan is required to undertake 
programs to encourage voluntary compliance by employers and employees 
(29 CFR 1902.4(c)(2)(xiii)). Oregon operates an on-site consultation 
program funded under Section 21(d) of the 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 state-funded 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% state-funded. (About 13% of OR-OSHA's annual consultations are 
conducted in the public sector.) This large state-funded 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 OR-OSHA and, to date, no 
negative impact on the Oregon State Plan has been identified.
    OR-OSHA's Web site offers an extensive inventory of training 
opportunities: on-line registration for a large variety of workshop 
classes, on-line 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 Spanish-English 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 
businesses, 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.
    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.
    Accordingly, OSHA finds that Oregon has established and is 
administering an effective voluntary compliance program.
    (8) 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 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 29 CFR 1902.37(b)(15). 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), but in 2003 moved closer to the national 
rate when Oregon's rate declined 6.7% (5.6 vs. 5.0 national). (Injury-
illness data for 2002 and 2003 are not directly comparable to 2001 or 
prior years due to a change in OSHA's recordkeeping requirements.)
    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. 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, and the accepted disabling 
claims rate declined from 1.7 in 1998 to 1.5 in 2002.
    OSHA finds that during the evaluation period trends in worker 
injury and illness in Oregon were comparable to those in states with 
federal enforcement.

Decision

    OSHA has carefully reviewed the record developed during the above 
described proceedings, including all comments received thereon. The 
present Federal Register document sets forth the findings and 
conclusions resulting from this review.

[[Page 24953]]

    In light of all the facts presented on the record, the Assistant 
Secretary has determined that, with the exception of the issue of 
temporary labor camps in agriculture, general industry, construction 
and logging, the Oregon State Plan for occupational safety and health, 
which has been monitored for at least one year subsequent to 
certification, is in actual operation at least as effective as the 
Federal program and meets the statutory criteria for state plans in 
Section 18(e) of the Act and implementing regulations at 29 CFR part 
1902. Accordingly, the Oregon State Plan, with the exception of 
temporary labor camps, is hereby granted final approval under Section 
18(e) of the Act and implementing regulations at 29 CFR part 1902, 
effective May 12, 2005.
    Under this 18(e) determination, Oregon will be expected to maintain 
a state program which will continue to be at least as effective as 
operations under the Federal program in protecting employee safety and 
health at covered workplaces. This requirement includes submitting all 
required reports to the Assistant Secretary as well as submitting plan 
supplements documenting state-initiated program changes, changes 
required in response to adverse evaluation findings, and responses to 
mandatory Federal program changes. In addition, Oregon must continue to 
allocate sufficient safety and health enforcement staff to meet the 
benchmarks for state compliance staffing established by the Department 
of Labor, or any revision to those benchmarks.

Effect of Decision

    The determination that the criteria set forth in Section 18(c) of 
the Act and 29 CFR part 1902 are being applied in actual operations 
under the Oregon plan terminates OSHA authority for federal enforcement 
of its standards in Oregon with respect to those issues covered under 
the state plan (with the exception of temporary labor camps in 
agriculture, general industry, construction and logging). Section 18(e) 
provides that upon making this 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.''
    Accordingly, with the exception of temporary labor camps, Federal 
authority over worksites covered by the Oregon State Plan is 
relinquished, as of the effective date of this determination, with 
respect to the issuance of citations for violations of OSHA standards 
(Sections 5(a)(2) and 9); the conduct of inspections (except those 
necessary to conduct evaluations of the plan under Section 18(f), and 
other inspections, investigations or proceedings necessary to carry out 
Federal responsibilities which are not specifically preempted by 
section 18(e)) (Section 8); the conduct of enforcement proceedings in 
contested cases (Section 10); proceedings to correct imminent dangers 
(Section 13); and the proposal of civil penalties and the initiation of 
criminal proceedings for violations of the Act (Section 17). Because 
this 18(e) determination does not cover temporary labor camps, this 
action will not result in any change to present Federal enforcement 
authority at those sites.
    Federal authority under provisions of the Act not listed in section 
18(e) is unaffected by this determination. Thus, for example, the 
Assistant Secretary retains authority under section 11(c) of the Act 
with regard to complaints alleging discrimination against employees 
because of the exercise of any right afforded to the employee by the 
Act, although such complaints may be initially referred to the state 
for investigation. Any proceeding initiated by OSHA under sections 9 
and 10 of the Act prior to the date of this final determination remain 
under Federal jurisdiction. The Assistant Secretary also retains 
authority under section 6 of the Act to promulgate, modify or revoke 
occupational safety and health standards which address the working 
conditions of all employees, including those in states which have 
received an affirmative 18(e) determination. In the event that a 
state's 18(e) status is subsequently withdrawn and Federal authority 
reinstated, all Federal standards, including any standards promulgated 
or modified during the 18(e) period, would be federally enforceable in 
the state.
    In accordance with section 18(e), this determination relinquishes 
Federal OSHA authority with regard to occupational safety and health 
issues covered by the Oregon plan (except for temporary labor camps), 
but OSHA retains full authority over issues which are not subject to 
state enforcement under the plan. Thus, for example, Federal OSHA 
retains its authority to enforce all provisions of the Act, and all 
Federal standards, rules or orders, as applicable to the safety or 
health of employees in 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. These employers 
remain subject to Federal OSHA jurisdiction. In addition, Federal OSHA 
may subsequently initiate the exercise of jurisdiction over any issue 
(hazard, industry, geographical area, operation or facility) for which 
the state is unable to provide effective coverage for reasons which 
OSHA determines are not related to the required performance or 
structure of the state plan.
    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. Section 18(f) and regulations at 29 CFR part 1955 provide 
procedures for the withdrawal of Federal approval should the Assistant 
Secretary find that the state has subsequently failed to comply with 
any provision or assurance contained in the plan. Additionally, the 
Assistant Secretary may initiate proceedings to revoke an 18(e) 
determination and reinstate concurrent Federal authority under 
procedures set forth in 29 CFR 1902.47, et seq., if the Assistant 
Secretary's evaluations show that the state has substantially failed to 
maintain a program which is at least as effective as operations under 
the Federal program, or if the state does not submit program change 
supplements to the Assistant Secretary as required by 29 CFR part 1953. 
See 29 CFR 1902.43(a)(4).

Explanation of Changes to 29 CFR Part 1952

    29 CFR part 1952 contains, for each state having an approved plan, 
a Subpart generally describing the plan and setting forth the Federal 
approval status of the plan. 29 CFR 1902.43(a)(3) requires that notices 
of affirmative 18(e) determinations be accompanied by changes to part 
1952 reflecting the final approval decision. This notice makes changes 
to subpart D of part 1952 to reflect the final approval of the Oregon 
plan.
    The table of contents for part 1952, subpart D, has been revised to 
reflect the following changes:
    A new Section 1952.104, Final approval determination, which 
formerly was reserved, has been added to reflect the determination 
granting final approval of the plan. This section contains a more 
accurate description of the current scope of the plan than the

[[Page 24954]]

one contained in the initial approval decision.
    Section 1952.105, Level of Federal enforcement, has been revised to 
reflect the state's 18(e) status. This replaces the former description 
of the relationship of state and Federal enforcement under an 
Operational Status Agreement voluntarily suspending Federal enforcement 
authority, which was entered into on January 23, 1975. Section 1952.105 
describes the issues over which Federal authority has been terminated, 
and the issues for which it has been retained in accordance with the 
discussion of the effects of the 18(e) determination set forth earlier 
in the present Federal Register notice.

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.

Federalism

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
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 Supplementary Information section 
of today's final approval decision 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 
Act because they 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.
    This document was prepared under the direction of Jonathan L. 
Snare, Acting Assistant Secretary of Labor for Occupational Safety and 
Health. It is issued under Section 18 of the Occupational Safety and 
Health Act of 1970, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR part 1902; 
and Secretary of Labor's Order No. 5-2002 (67 FR 65008, Oct. 22, 2002).

List of Subjects in 29 CFR Part 1952

    Intergovernmental relations, Law enforcement, Occupational safety 
and health, Occupational Safety and Health Administration, Reporting 
and recordkeeping requirements.

    Signed at Washington, DC, this 2nd day of May, 2005.
Jonathan L. Snare,
Acting Assistant Secretary.

0
Part 1952 of 29 CFR is hereby amended as follows:

PART 1952--[AMENDED]

0
1. The authority citation of part 1952 is revised to read as follows:

    Authority: Section 18 of the OSH Act (29 U.S.C. 667), 29 CFR 
part 1902, and Secretary of Labor's Order No. 5-2002 (67 FR 65008).

Subpart D--Oregon

0
2. A new Sec.  1952.104 is added to read as follows:


Sec.  1952.104  Final approval determination.

    (a) In accordance with Section 18(e) of the Act and procedures in 
29 CFR Part 1902, and after determination that the state met the 
``fully effective'' compliance staffing benchmarks as revised in 1994 
in response to a court order of the United States District Court for 
the District of Columbia in AFL-CIO v. Marshall, (C.A. No. 74-406), and 
was satisfactorily providing reports to OSHA through participation in 
the Federal-state Integrated Management Information System, the 
Assistant Secretary evaluated actual operations under the Oregon State 
Plan for a period of at least one year following certification of 
completion of developmental steps. Based on an 18(e) Evaluation Report 
covering the period October 1, 2002 through September 30, 2003, and 
after opportunity for public comment, the Assistant Secretary 
determined that, in operation, Oregon's occupational safety and health 
program (with the exception of temporary labor camps in agriculture, 
general industry, construction and logging) is at least as effective as 
the Federal program 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 Oregon 
State Plan was granted final approval and concurrent Federal 
enforcement authority was relinquished for all worksites covered by the 
plan (with the exception of temporary labor camps in agriculture, 
general industry, construction and logging), effective May 12, 2005.
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of 
employment in Oregon. The plan does not cover 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.
    (c) Oregon is required to maintain a state program which is at 
least as effective as operations under the Federal program; to submit 
plan supplements in accordance with 29 CFR part 1953; to allocate 
sufficient safety and health enforcement staff to meet the benchmarks 
for state staffing established by the U.S. Department of Labor, or any 
revisions to those benchmarks; and, to furnish such reports in such 
form as the Assistant Secretary may from time to time require.

0
3. Section 1952.105 is revised to read as follows:


Sec.  1952.105  Level of Federal enforcement.

    (a) As a result of the Assistant Secretary's determination granting 
final approval to the Oregon State Plan under Section 18(e) of the Act, 
effective May 12, 2005, occupational safety and health standards which 
have been promulgated under Section 6 of the Act (with the exception of 
those applicable to temporary labor camps in agriculture, general 
industry, construction and logging) do not apply with respect to issues 
covered under the Oregon plan. This determination also relinquishes 
concurrent Federal OSHA authority to issue citations for violations of 
such 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

[[Page 24955]]

the Act under Section 17. The Assistant Secretary retains jurisdiction 
under the above provisions in any proceeding commenced under Section 9 
or 10 before the effective date of the 18(e) determination. The 
Operational Status Agreement, effective January 23, 1975, and as 
amended, effective December 12, 1983 and November 27, 1991, is 
superseded by this action, except that it will continue to apply to 
temporary labor camps in agriculture, general industry, construction 
and logging.
    (b)(1) In accordance with Section 18(e), final approval 
relinquishes Federal OSHA authority with regard to occupational safety 
and health issues covered by the Oregon plan (with the exception of 
temporary labor camps in agriculture, general industry, construction 
and logging). OSHA retains full authority over issues which are not 
subject to state enforcement under the plan. Thus, Federal OSHA retains 
its authority relative to:
    (i) 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. This includes: Employment on the 
navigable waters of the U.S.; shipyard and boatyard employment on or 
immediately adjacent to the navigable waters--including floating 
vessels, dry docks, graving docks and marine railways--from the front 
gate of the work site to the U.S. statutory limits; longshoring, marine 
terminal and marine grain terminal operations, except production or 
manufacturing areas and their storage facilities; construction 
activities emanating from or on floating vessels on the navigable 
waters of the U.S.; commercial diving originating from an object afloat 
a navigable waterway; and all other private sector places of employment 
on or adjacent to navigable waters whenever the activity occurs on or 
from the water;
    (ii) 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 boundaries of all Indian reservations, including the Warm 
Springs and Umatilla reservations, and on lands outside these 
reservations that are held in trust by the Federal government for these 
tribes. (Businesses owned by Indians or Indian tribes that conduct work 
activities outside the tribal reservation or trust lands are subject to 
the same jurisdiction as non-Indian owned businesses.);
    (iii) 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;
    (iv) Enforcement of occupational safety and health standards with 
regard to all Federal government employers and employees; and the U.S. 
Postal Service (USPS), including USPS employees, and contract employees 
and contractor-operated facilities engaged in USPS mail operations.
    (2) In addition, any hazard, industry, geographical area, operation 
or facility over which the state is unable to effectively exercise 
jurisdiction for reasons which OSHA determines are not related to the 
required performance or structure of the plan shall be deemed to be an 
issue not covered by the state plan which has received final approval, 
and shall be subject to Federal enforcement. Where enforcement 
jurisdiction is shared between Federal and state authorities for a 
particular area, project, or facility, in the interest of 
administrative practicability Federal jurisdiction may be assumed over 
the entire project or facility. In any of the aforementioned 
circumstances, Federal enforcement authority may be exercised after 
consultation with the state designated agency.
    (c) Federal authority under provisions of the Act not listed in 
Section 18(e) is unaffected by final approval of the Oregon State Plan. 
Thus, for example, the Assistant Secretary retains authority under 
Section 11(c) of the Act with regard to complaints alleging 
discrimination against employees because of the exercise of any right 
afforded to the employ