DEPARTMENT OF LABOR

Occupational Safety and Health Administration

Oregon State Standards; Notice of Approval

1. Background.

Part 1953 of Title 29, Code of Federal Regulations, prescribes procedures under Section 18 of the Occupational Safety and Health Act of 1970 (hereinafter called the Act) by which the Regional Administrator for Occupational Safety and Health (hereinafter called Regional Administrator) under a delegation of authority from the Assistant Secretary of Labor for Occupational Safety and Health (hereinafter called the Assistant Secretary (29 CFR 1953.4) will review and approve standards promulgated pursuant to a State plan which has been approved in accordance with Section 18(c) of the Act and 29 CFR Part 1902. On December 28, 1972, notice was published in the Federal Register (37 FR 28628) of the approval of the Oregon plan and the adoption of Subpart D to Part 1952 containing the decision.

The Oregon plan provides for adoption of State standards which are at least as effective as comparable Federal standards promulgated under Section 6 of the Act. Section 1953.20 provides that where any alteration in the Federal program could have an adverse impact on the at least as effective as status of the State program, a program change supplement to a State plan shall be required. The Oregon plan also provides for the adoption of Federal standards as State standards by reference.

The state submitted by letter dated September 13, 1989, from John A. Pompei, Administrator, to James W. Lake, Regional Administrator, and incorporated as part of the plan, State standard amendments comparable to 29 CFR 1926, Safety and Health Regulations for Construction, as published in the Federal Register (36 FR 75) on April 17, 1971. The Oregon Safety and Health Regulations for Construction are contained in OAR Division 3. The regulations were re-adopted by reference, but included a large number of State-initiated rules adopted in addition or in lieu of specific rules in 1926. The new Construction rules became effective July 7, 1989 under Oregon Administrative Order 8-1989. Included were State-initiated amendments concerning fall protection and traffic control (Administrative Order 2-1989). On April 26, 1989, the State mailed the proposed amendment of rules to those on the Department of Insurance and Finance mailing list established pursuant to OAR 436-01-000 and to those on the Department's distribution list as their interest appeared. On June 15, 1994, the submittal was returned to the State for clarification of some issues and corrections of others. On October 29, 1996, the State submitted an explanation of the issues and its plan for making the necessary corrections. Since the corrections were minor and did not require an administrative order, they were made when the standards were reprinted. The final corrections were made in 1998.

On its own initiative, the State of Oregon has submitted by letter dated March 25, 1991, from John A. Pompei, Administrator, to James W. Lake, Regional Administrator, and incorporated as part of the plan, adoption of an Oregon-initiated rule, OAR 437-03-093, which makes the Motor Vehicle standard 1926.601 applicable to all construction job sites with no exceptions. The amendment was adopted March 18, 1991, effective April 15, 1991, under Administrative Order 5-1991.

On its own initiative, the State of Oregon has submitted by letter dated May 10, 1994, from John A. Pompei, Administrator, to James W. Lake, Regional Administrator, a repeal of OAR 437-050, 055 and 060 because they duplicate the requirements contained in 29 CFR 1926, Subpart X, Ladders. These standards originally received Federal Register approval (42 FR 62554) on December 13, 1977. At the same time Oregon also submitted a State-initiated amendment to its construction standards at OAR 437-03-020(1) to raise the minimum estimated cost of construction projects requiring flush toilet facilities from $500,000 to $1,000,000. The State standard amendments were adopted and effective April 27, 1994, under Administrative Order 1-1994.

In response to Federal standard changes, the State of Oregon has submitted by letter dated June 13, 1997, from Peter De Luca, Administrator, to Richard Terrill, Acting Regional Administrator, and incorporated as part of the plan, State standards comparable to 29 CFR 1926.57(f), (g), (h) and (i), 1926.103(d), (e), (f), (g), (h) and (i), 1926.416(a)(4), (f), (g) and 1926.417(d) contained in the incorporation of General Industry Safety and Health Standards Applicable to Construction Work and Technical Amendments, as published in the Federal Register (58 FR 35099) on June 30, 1993; and State standards comparable to the changes contained in the Federal Register (61 FR 9230) as published on March 7, 1996, Miscellaneous Minor and Technical Amendments, except minor and technical amendments to the following sections were not adopted: 29 CFR 1910.142(c)(4), 1910.142(i)(1), 1910.153, 1910.261(a)(3), 1910.261(a)(4), 1910.261(n), 1910.266(d)(3)(iv), 1910.266(e)(2)(i), 1910.266(f)(3)(ii), 1910.266(f)(3)(iii), 1910.266(f)(3)(iv), 1910.266(f)(4), 1910.266(f)(5)(i), 1910.268(f)(1), 1926.33(c)(13)(i), 1926.103(a)(2), 1926.1103, 13 Carcinogens and the associated deletions to 1926.1104 and .1106 through .1116, 1928.21(a)(6), 1928.51(b)(1), 1928.52, 1928,53, Appendix B to Subpart C and 1928.1027; and State standards comparable to the changes to 29 CFR 1910 and 1915, changes to Subpart C and D to 29 CFR 1926 and changes to the Cadmium standard contained in 1926.1127 as published in the Federal Register (61 FR 31427) on June 20, 1996, Consolidation of Repetitive Provisions; Technical Amendments. These changes were adopted and became effective on April 2, 1997, under Administrative Order 4-1997.

In response to Federal standard changes, the State has submitted by letter dated June 13, 1997, from Peter De Luca, Administrator, to Richard Terrill, Acting Regional Administrator, and incorporated as part of the plan, State standards identical to 29 CFR 1926.450 through .454, Safety Standards for Scaffolds Used in the Construction Industry as published in the Federal Register (61 FR 46051) on August 30, 1996, and corrections and partial stay published in the Federal Register (61 FR 59831) on November 25, 1996. In addition to adopting the federal standard, the state adopted three state initiated standards and added a note to clarify one standard. The state initiated standards require the employer to have the manufacturer's operating manual with manually propelled elevating aerial platforms, boom supported elevating work platforms and scissor lifts and that they follow all operating and maintenance instructions. The state rules were adopted and became effective on March 12, 1997, under Administrative Order 2-1997.

2. Decision

OSHA has determined that the State standards for Scaffolds in Construction, General Industry Standards Applicable to Construction Work and Technical Amendments, Miscellaneous Minor and Technical Amendments, and Consolidation of Repetitive Provisions (Technical Amendments) are at least as effective as the comparable Federal standards as required by Section 18(c)(2) of the Act. OSHA has also determined that the differences between the State and Federal standards are minimal and that the standards are thus substantially identical. OSHA has also determined that the State standards for Construction, Motor Vehicles, and repeal of duplicative Ladder standards are at least as effective as the comparable Federal standards, as required by Section 18(c)(2) of the Act. The re-adopted Construction standards have been in effect since July 7, 1989, the Motor Vehicle standard has been in effect since April 15, 1991, and the repeal of the Ladder standards and amendment of construction standards regarding flush toilet facilities have been in effect since April 27, 1994. During this time OSHA has received no indication of significant objection to the State's different standards either as to their effectiveness in comparison to the Federal standards or as to their conformance with the product clause requirements or Section 18(c)(2) of the Act. (A different state standard applicable to a product which is distributed or used in interstate commerce but be required by compelling local conditions and not unduly burden interstate commerce). OSHA approves all of the standards. However, the right to reconsider this approval is reserved should substantial objections be submitted to the Assistant Secretary. The state standards were adopted pursuant to ORS 654.025(2), ORS 656.726(3) and ORS 183.335.

3. Location of Supplement for Inspection and Copying

A copy of the standards, along with the approved plan, may be inspected and copied during normal business hours at the following locations: Office of the Regional Administrator, Occupational Safety and Health Administration, 1111 Third Avenue, Suite 715, Seattle, Washington 98101-3212; Oregon Occupational Safety and Health Division, Department of Consumer and Business Services, Salem, Oregon 97310; and the Office of State Programs, Occupational Safety and Health Administration, Room N-3476, 200 Constitution Avenue, NW, Washington, D.C. 20210. An electronic copy of this Federal Register notice may be obtained from the OSHA home page, http://www.osha.gov. Click on Federal Register under the Regulation section.

4. Public Participation

Under 29 CFR 1953.2(c), the Assistant Secretary may prescribe alternative procedures to expedite the review process or for other good cause which may be consistent with applicable laws. The Assistant Secretary finds that good cause exists for not publishing the supplement to the Oregon State Plan as a proposed change and making the Regional Administrator's approval effective upon publication for the following reasons:

1. The standard amendments are as effective as the federal standards which were promulgated in accordance with federal law including meeting requirements for public participation.

2. The standard amendments were adopted in accordance with the procedural requirements of State law and further public participation would be repetitious. This decision is effective April 12, 1999. (Sec. 18, Pub. L. 91-596, 84 Stat. 6108 [29 U.S.C. 667]).

Signed at Seattle, Washington, this 16th day of October 1998.

Richard S. Terrill,
Acting Regional Administrator.

[FR Doc. 99-9048 Filed 4-9-99; 8:45 am]

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