29 CFR Part 1952

[Docket No. T-026]

Michigan 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.

SUMMARY: This document gives notice of the proposed revision of compliance staffing benchmarks applicable to the Michigan State plan. Michigan's benchmarks were originally established in April 1980 in response to the U.S. Court of Appeals decision in AFL-CIO v. Marshall, 570 F. 2d 1030 (D.C. Cir. 1978). The State of Michigan 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 Michigan 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-026, 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 Michigan to allocate 141 safety and 225 health compliance personnel to conduct inspections under the plan. Attainment of the 1980 benchmark levels or subsequent revision thereto is a prerequisite for State plan final approval consideration under section 18(e) of the Act.

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 Michigan plan, which was granted initial State plan approval on September 24, 1973 (38 FR 2739), is administered by the Michigan Department of Labor and the Michigan Department of Public Health. Concurrent Federal enforcement jurisdiction was suspended in Michigan with the publication of an Operational Status Agreement on March 22, 1977 (42 FR 15411). The plan was certified as having satisfactorily completed all of its developmental commitments on January 16, 1981 (46 FR 3865).

Proposed Revision of Benchmarks

In 1992, the Michigan Department of Labor (the designated agency or "designee" for safety enforcement in the State) and the Michigan Department of Public Health (the designated agency or "designee" for health enforcement in the State) reviewed, in conjunction with OSHA, the compliance staffing benchmarks approved for Michigan in 1980. In accordance with the formula and general principles established by the joint Federal/State task group for the revision of the 1980 benchmarks, Michigan 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 submitted in April 1992 and March 1993, of revised staffing benchmarks of 56 safety and 45 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 manufacturing establishments and the January 1990 Dun and Bradstreet listing of non-manufacturing establishments in Michigan) 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 7.7 hours on such inspections, and each State safety inspector is able to devote 1,305 hours annually to actual inspection activity based on State personnel practices. Establishments have been added to this initial general inspection universe based on the State's analysis of past injury and inspection experience to identify those employers or groups of employers most likely to have hazards that could be eliminated by inspection. 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 Michigan.

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 and January 1990 Dun and Bradstreet listing of non-manufacturing establishments in Michigan) 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 27.8 hours on such inspections, and each health compliance officer is able to devote 1,462 hours annually to actual inspection activity, based upon State personnel practices. Establishments have been added to this initial general schedule universe based on the State's knowledge gained from inspection experience and other data on the extent of employee exposure to and use of toxic substances and harmful physical agents by individual employers or groups of employers, and the extent to which hazardous exposures can be eliminated by inspection. 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 Michigan.

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 T, which generally describes the Michigan plan and sets forth the State's revised safety and health benchmark levels.

Documents of Record

A comprehensive document containing the proposed revision to Michigan'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-026, U.S. Department of Labor, room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210.

Regional Administrator - Region V, U.S. Department of Labor - OSHA, room 3244, 230 South Dearborn Street, Chicago, Illinois 60604.

Michigan Department of Labor, Victor Office Center, 201 North Washington Square, Lansing, Michigan 48933.

Michigan Department of Public Health, 3423 North Logan Street, Lansing, Michigan 48909.

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-026, 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 Michigan 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 Michigan 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-026, U.S. Department of Labor, room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210. Written submissions must be directed to the specific benchmarks proposed for Michigan 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,
Secretary of Labor.

[FR Doc. 94-7253 Filed 3-28-94; 8:45 am]