[Federal Register Volume 59, Number 60 (Tuesday, March 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7252]
[[Page Unknown]]
[Federal Register: March 29, 1994]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1952
[Docket No. T-028]
California State Plan: Proposed Revision to State Staffing
Benchmarks; Request for Comments
AGENCY: Department of Labor, Occupational Safety and Health
Administration (OSHA).
ACTION: Proposed revision to State compliance staffing benchmarks;
request for written comments.
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SUMMARY: This document gives notice of the proposed revision of
compliance staffing benchmarks applicable to the California State plan.
California's benchmarks were originally established in April 1980 in
response to the U.S. Court of Appeals decision in AFL-CLO v. Marshall,
570 F. 2d 1030 (D.C. Cir. 1978). The State of California has
reconsidered the information utilized in the development of its 1980
benchmarks and determined that changes in local conditions and improved
inspection data warrant revision of its benchmarks. OSHA is soliciting
written public comments to afford interested persons an opportunity to
present their views regarding whether or not the revised benchmarks for
California should be approved.
DATES: Written comments must be received by May 3, 1994.
ADDRESSES: Written comments should be submitted, in quadruplicate, to
the Docket Officer, Docket No. T-028, U.S. Department of Labor, room N-
2625, 200 Constitution Avenue NW., Washington, DC 20210, (202) 219-
7894.
FOR FURTHER INFORMATION CONTACT:
James Foster, Director, Office of Information and Consumer Affairs,
Occupational Safety and Health Administration, U.S. Department of
Labor, Room N-3637, 200 Constitution Avenue NW., Washington, DC 20210,
(202) 219-8148..
SUPPLEMENTARY INFORMATION:
Background
Section 18 of the Occupational Safety and Health Act of 1970 (``the
Act,'' 29 U.S.C. 651 et seq.) provides that States which desire to
assume responsibility for developing and enforcing occupational safety
and health standards may do so by submitting, and obtaining Federal
approval of, a State plan. Section 18(c) of the Act sets forth the
statutory criteria for plan approval, and among these criteria is the
requirement that the State's plan provide satisfactory assurances that
the state agency or agencies responsible for implementing the plan have
``* * * the qualified personnel necessary for the enforcement of * * *
standards,'' 29 U.S.C. 667(c)(4).
A 1978 decision of the U.S. Court of Appeals and the resultant
implementing order issued by the U.S. District Court for the District
of Columbia (AFL-CIO v. Marshall, C.A. No. 74-406) interpreted this
provision of the Act to require States operating approved State plans
to have sufficient compliance personnel necessary to assure a ``fully
effective'' enforcement effort. The Assistant Secretary of Labor for
Occupational Safety and Health (the Assistant Secretary) was directed
to establish ``fully effective'' compliance staffing levels, or
benchmarks, for each State plan. In 1980 OSHA submitted a Report to the
Court containing these benchmarks and requiring California to allocate
334 safety and 471 health compliance personnel to conduct inspections
under the plan.
Both the 1978 Court Order and the 1980 Report to the Court
explicitly contemplate subsequent revisions to the benchmarks in light
of more current data, including State-specific information, and other
relevant considerations. In August 1983 OSHA, together with State plan
representatives, initiated a comprehensive review and revision of the
1980 benchmarks. A complete discussion of both the 1980 benchmarks and
the present revision system process is set forth in the January 16,
1985 Federal Register (50 FR 2491) regarding the Wyoming occupational
safety and health plan.
The California plan, which was granted initial State plan approval
on May 1, 1973 (38 FR 10717), is administered by the California
Department of Industrial Relations. Concurrent Federal enforcement
jurisdiction was suspended in California with the publication of an
Operational Status Agreement on January 13, 1976 (41 FR 1904). The plan
was certified as having satisfactorily completed all of its
developmental commitments on August 19, 1977 (42 FR 161).
Proposed Revision of Benchmarks
In June 1993, the California Department of Industrial Relations
(the designated agency or ``designee'' in the State) completed, in
conjunction with OSHA, a review of the compliance staffing benchmarks
approved for California in 1980. In accord with the formula and general
principles established by the joint Federal/State task group for the
revision of the 1980 benchmarks, California reassessed the staffing
necessary for a ``fully effective'' occupational safety and health
program in the State. This reassessment resulted in a proposal,
contained in supporting documents, of revised staffing benchmarks of
118 safety and 80 health compliance officers.
The proposed revised safety benchmark contemplates biennial general
schedule inspection of all private sector manufacturing establishments
with greater than 10 employees (based upon a computerized summary
utilizing the July 1991 Dun and Bradstreet listing of manufacturers for
California) in Standard Industrial Classifications whose Lost Workday
Case Injury Rate is higher than the overall State private sector rate
(as determined by the Bureau of Labor Statistics' (BLS) Annual
Occupational Injury and Illness Survey). Data indicate that the State
is spending an average of 14 hours on such inspections, and each State
safety inspector is able to devote 1,440 hours annually to actual
inspection activity based on State personnel practices. In addition,
inspection resources are allocated to coverage of mobile and public
employee (State and local government) work sites, response to
complaints and accidents, and follow-up inspections to ascertain
compliance, based upon recent historical experience and an assessment
of proper safety coverage in the State of California.
The proposed revised health benchmark contemplates general schedule
inspection coverage once every three years of all private sector
manufacturing establishments with greater than 10 employees (based upon
a computerized summary utilizing the July 1991 Dun and Bradstreet
listing of manufacturing establishments for California) in the 150
Standard Industrial Classifications (SICs) in the State having the
highest likelihood of exposure to health hazards. These SICs are
determined by a health ranking system utilizing data from the National
Occupational Hazards Survey (NOHS), as published in 1977, which
assesses the potency and toxicity of substances in use in the State.
The State has historically spent an average 30.5 hours on such
inspections, and each health compliance officer is able to devote 1,440
hours annually to actual inspection activity, based upon State
personnel practices. In addition, inspection resources are allocated to
coverage of mobile and public employee (State and local government)
work sites, response to complaints and accidents, and follow-up
inspections to ascertain compliance, based on recent historical
experience and an assessment of proper health coverage in the State of
California.
OSHA has reviewed the State's proposed revised benchmarks and
supporting documentation, prepared a narrative describing the State's
submission, and determined that the proposed compliance staffing levels
appear to meet the requirements of the Court in AFL-CIO v. Marshall and
provide staff sufficient to ensure a ``fully effective enforcement
program.''
Effect of Benchmark Revision
Consistent with the 1978 Court Order in AFL-CIO v. Marshall and the
procedures for implementation of benchmarks described by OSHA in the
1980 Report to the Court, if the proposed revised benchmarks are
approved by OSHA, the State must allocate a sufficient number of safety
and health enforcement staff to meet the revised benchmarks in order to
be eligible for final approval under section 18(e) of the Act. Approval
of the revised benchmarks would be accompanied by an amendment to 29
CFR part 1952, subpart DD, which generally describes the California
plan and sets forth the State's revised safety and health benchmark
levels. Attainment of the 1980 benchmark levels or subsequent revision
thereto is a prerequisite for final State plan approval consideration
under section 18(e) of the Act.
Documents of Record
A comprehensive document containing the proposed revision to
California's benchmarks, including a narrative of the State's
submission and supporting statistical data has been made a part of the
record in this proceeding and is available for public inspection and
copying at the following locations:
Docket Office, Docket No. T-028, U.S. Department of Labor, Room N-
2625, 200 Constitution Avenue, NW., Washington, DC 20210.
Regional Administrator--Region IX, U.S. Department of Labor--OSHA,
71 Stevenson Street, San Francisco, California 94105.
California Department of Industrial Relations, 455 Golden Gate
Avenue, 4th Floor, San Francisco, California 94102.
In addition, to facilitate informed public comment, an
informational record has been established in a separate docket (No. T-
018) containing background information relevant to the benchmark issue
in general and the current benchmark revision process. This information
docket includes, among other material, the 1978 Court of Appeals
decision in AFL-CIO v. Marshall, the 1978 implementing Court Order, the
1980 Report to the Court, and a report describing the 1983-1984
benchmark revision process. It is also available for public inspection
and copying at the following location:
Docket Office, Docket No. T-018, U.S. Department of Labor, room N-
2625, 200 Constitution Avenue, NW., Washington, DC 20210.
Public Participation
OSHA is soliciting public participation in its consideration of the
approval of the revised California benchmarks to assure that all
relevant information, views, data and arguments are available to the
Assistant Secretary during this proceeding. Members of the public are
invited to submit written comments in relation to whether the proposed
revised benchmarks will provide for a fully effective enforcement
program for California in accordance with the Court Order in AFL-CIO v.
Marshall. Comments must be received on or before May 3, 1994, and be
submitted in quadruplicate to the Docket Office, Docket No. T-028, U.S.
Department of Labor, room N-2625, 200 Constitution Avenue, NW.,
Washington, DC 20210. Written submission must be directed to the
specific benchmarks proposed for California and must clearly identify
the issues which are addressed and the positions taken with respect to
each issue.
All written submissions as well as other information gathered by
OSHA will be considered in any action taken. The record of this
proceeding, including written comments and all material submitted in
response to this notice, will be made available for public inspection
and copying in the Docket Office, room N-2625, at the previously
mentioned address, between the hours of 8:15 a.m. and 4:45 p.m.
List of Subjects in 29 CFR Part 1952
Intergovernmental relations, Law enforcement, Occupational safety
and health.
(Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR part 1902, Secretary
of Labor's Order No. 9-83 (43 FR 35736))
Signed at Washington, DC, this 18th day of March 1994.
Joseph A. Dear,
Assistant Secretary of Labor.
[FR Doc. 94-7252 Filed 3-28-94; 8:45 am]
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