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.

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 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 http://www.osha.gov/.

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: § 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:

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 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)).

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3. Section 1952.107 is amended by adding paragraph (f) to read as follows:

1952.107 Changes to approved plans.

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(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)