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• Publication Date: 04/25/1995
• Publication Type: Final Rules
• Fed Register #: 60:20191-20193
• Standard Number: 1902.37(b)(1); 1952
• Title: Michigan State Plan: Approval of Revised Compliance Staffing Benchmarks

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

[Docket No. T-026]

Michigan State Plan: Approval of Revised Compliance Staffing Benchmarks

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

ACTION: Final Rule: approval of revised State compliance staffing benchmarks.


SUMMARY: This document amends agency regulations to reflect the Assistant Secretary's decision to approve revised compliance staffing benchmarks for the Michigan State plan.

EFFECTIVE DATE: April 25, 1995.

FOR FURTHER INFORMATION CONTACT: Richard Liblong, 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, D.C. 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 be 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. The State of Michigan participated in this benchmark revision process, which resulted in a methodology whereby a State could submit data that would justify revision of its 1980 benchmarks. In 1992, Michigan proposed to the Assistant Secretary revised compliance staffing levels for a "fully effective" program responsive to the occupational safety and health needs of the State. (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.)

Proposed Revision of Benchmarks

In 1980, OSHA submitted a report to the Court containing the benchmarks and requiring Michigan to allocate 141 safety compliance officers and 225 industrial hygienists. Pursuant to the initiative begun in August 1983 by the State plan designees as a group, and in accord with the formula and general principles established by that group for individual State revision of benchmarks, Michigan reassessed the compliance staffing necessary for a "fully effective" occupational safety and health program in the State.

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) completed, in conjunction with OSHA, a review of the compliance staffing benchmarks approved for Michigan in 1980. This reassessment resulted in a proposal to OSHA of revised compliance staffing benchmarks of 56 safety and 45 health compliance officers for the State of Michigan.

History of the Present Proceedings

On March 29, 1994, the Occupational Safety and Health Administration published notice in the Federal Register of its proposal to approve revised compliance staffing benchmarks for Michigan (59 FR 14586). A detailed description of the methodology and State-specific information used to develop the revised compliance staffing levels for Michigan was included in the notice. In addition, OSHA submitted, as a part of the record, detailed submissions containing both narrative explanation and supporting data for Michigan's proposed revised benchmarks (Docket No. T-026). An informational record was established in a separate docket (Docket No. T-018) and contains background information relevant to the benchmark issue and the current benchmark revision process.

To assist and encourage public participation in the benchmark revision process, a copy of Michigan's complete record was maintained in the OSHA Docket Office in Washington, DC. Copies of Michigan's record were also maintained in the OSHA Region V Office in Chicago, Illinois, and in the offices of the Michigan Department of Labor and the Michigan Department of Public Health in Lansing, Michigan.

The March 29 proposal invited interested parties to submit, by May 3, 1994, written comments and views regarding whether Michigan's proposed revised compliance staffing benchmark levels should be approved. One comment was received regarding Michigan's proposed benchmarks.

Summary and Evaluation of Comments Received

In response to the March 29 Federal Register notice for Michigan, OSHA received one comment from Paul M. Schubert of Akron, Ohio (Exhibit 4-1). Douglas J. Kalinowski, Chief of the Michigan Division of Occupational Health, responded to the public comment (Exhibit 4-2).

Mr. Schubert commented that he had been a health compliance officer with the Michigan Department of Public Health from 1975 through 1981, and that it was his opinion, based on his experience as a compliance officer, that the complexity of many of the health compliance inspections would require more than the State's historical average of 27.8 hours per health compliance inspection. Mr. Schubert also noted that during one of his years as a compliance officer his inspections had averaged 210 hours per inspection.

In his response, Mr. Kalinowski noted that the annual number of hours available for compliance activity per Michigan health compliance officer is 1,462 hours. If each health inspection required an average of 210 hours, fewer than seven inspections would be conducted per compliance officer. According to Mr. Kalinowski, 31.5 health inspectors conducted a total of 1,766 health inspections in 1980, with an average of 56 inspections per health inspector and an average of 26 hours per inspection. In its 1992 submission proposing revised compliance staffing benchmarks, Michigan utilized actual inspection activity data for Fiscal Years 1990 and 1991 to determine that the average health inspection required approximately 27.8 hours. Michigan's data was comparable to the national average number of hours per health inspection for all 18(b) State plans of 24 in Fiscal Year 1990 and 25 in Fiscal Year 1991. It is OSHA's determination that the State's use of the average of 27.8 hours per health inspection is reasonable and acceptable.

Decision

OSHA has carefully reviewed the record developed during the above described proceedings. In light of all the facts presented on the record, including all comments received thereon, the Assistant Secretary has determined that the revised compliance staffing levels proposed for Michigan meet the requirements of the 1978 Court Order in AFL-CIO v. Marshall in providing the number of safety and health compliance officers for a "fully effective" enforcement program. Therefore, the revised compliance staffing levels of 56 safety and 45 health for Michigan are approved.

Effect of Decision

The approval of the revised staffing levels for Michigan, set forth elsewhere in this notice, establishes the requirement for a sufficient number of adequately trained and qualified compliance personnel as set forth in Section 18(c) of the Act and 29 CFR 1902.37(b)(1). These benchmarks are established pursuant to the 1978 Court Order in AFL-CIO v. Marshall and define the compliance staffing levels necessary for a "fully effective" program in Michigan. The allocation of sufficient staffing to meet the benchmarks is one of the conditions necessary for States to receive an 18(e) determination (final State plan approval) with its resultant relinquishment of concurrent Federal enforcement jurisdiction.

Explanation of Changes to 29 CFR Part 1952

29 CFR 1952 contains, for each State having an approved occupational safety and health plan, a subpart generally describing the plan and setting forth the Federal approval status of the plan. This notice makes several changes to Subpart T to reflect the approval of Michigan's revised compliance staffing benchmarks, as well as to reflect minor editorial modifications to the structure of the Subpart.

A new § 1952.393, Compliance staffing benchmarks, has been added to Subpart T to reflect the approval of the revised benchmarks for Michigan.

While most of the existing subparts have been retained, paragraphs within the subpart have been rearranged and renumbered so that the major steps in the development of the plan (initial approval, developmental steps and certification of completion of developmental steps) are set forth in chronological order.

Related editorial changes to the subparts include modification of the heading of § 1952.260 to clearly identify the initial plan approval of Michigan. The addresses of locations where the Michigan plan may be inspected have been updated and are found at § 1952.266.

Regulatory Flexibility Act

OSHA certifies, pursuant to the Regulatory Act of 1980 (5 U.S.C. 601, et seq.), that this rulemaking will not have significant economic impact on a substantial number of small entities. Approval of the revised compliance staffing benchmarks for Michigan will not place small employers in the State 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.

List of Subjects in 29 CFR Part 1952

Intergovernmental relations, Law enforcement, Occupational safety and health.

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

Signed at Washington, DC, this 20th day of April 1995.

Joseph A. Dear,
Assistant Secretary of Labor.

PART 1952--[AMENDED]

Accordingly, Subpart T of 29 CFR Part 1952 is amended to read as follows:

Subpart T--Michigan

1. The authority citation for Part 1952 continues to read:

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

2. Section 1952.260 is amended by revising the heading to read:

1952.260 Description of the plan as initially approved.

1952.265 [Redesignated as § 1952.267]

1952.262 [Redesignated as § 1952.265]

3. Section 1952.265 is redesignated as § 1952.267, and § 1952.262 is redesignated as § 1952.265.

1952.264 [Redesignated as § 1952.262]

4. Section 1952.264 is redesignated as § 1952.262, and is amended by revising the heading to read:

1952.262 Completion of developmental steps and certification.

1952.264 [Reserved]

5. A new § 1952.264 is added and reserved.

1952.261 [Redesignated as § 1952.266]

6. Section 1952.261 is redesignated as § 1952.266 and revised to read as follows:

1952.266 Where the plan may be inspected

A copy of the principal documents comprising the plan may be inspected and copied during normal business hours at the following locations: Office of State Programs, Occupational Safety and Health Administration, U.S. Department of Labor, Third Street and Constitution Avenue, N.W., Room N3700, Washington, D.C. 20210; Regional Administrator, Occupational Safety and Health Administration, U.S. Department of Labor, Room 3244, 230 South Dearborn Street, Chicago, Illinois 60604; Michigan Department of Labor, Victor Office Center, 201 North Washington Square, Lansing, Michigan 48933; and Michigan Department of Public Health, 3423 North Logan Street, Lansing, Michigan 48909

1952.261 [Redesignated from § 1952.263]

7. Section 1952.263 is redesignated as § 1952.261 and a new § 1952.263 is added to read as follows:

1952.263 Compliance staffing benchmarks.

Under the terms of the 1978 Court Order in AFL-CIO v. Marshall, compliance staffing levels ("benchmarks") necessary for a "fully effective" enforcement program were required for each State operating an approved State plan. In 1992, Michigan completed, in conjunction with OSHA, a reassessment of the levels initially established in 1980 and proposed revised benchmarks of 56 safety and 45 health compliance officers. After opportunity for public comment and service on the AFL-CIO, the Assistant Secretary approved these revised staffing requirements on April 20, 1995.

8. Newly designated § 1952.261 is amended by revising the heading to read:

1952.261 Developmental schedule.

1952.261 [Amended]

9. Newly designated § 1952.261(i) is further redesignated as § 1952.262(i).

[FR Doc. 95-10138 Filed 4-24-95; 8:45 am]


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