[Federal Register Volume 69, Number 152 (Monday, August 9, 2004)]
[Notices]
[Pages 48253-48256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18081]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Occupational Safety and Health Administration


Oregon State Plan: Request for Public Comment on Oregon State 
Standards

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

ACTION: Request for comment on Oregon State standards for Fall 
Protection, Forest Activities and Steel Erection.

-----------------------------------------------------------------------

SUMMARY: The Occupational Safety and Health Administration (OSHA) 
invites public comment on three standards promulgated by the Oregon 
Occupational Safety and Health Division (OR-OSHA) of the Department of 
Consumer and Business Services pursuant to its OSHA-approved State 
plan: Fall Protection, Forest Activities, and Steel Erection. Oregon's 
Fall Protection standard for construction is comparable to the Federal 
OSHA Fall Protection standard, as published in the Federal Register on 
August 9, 1994, and amended through January 18, 2001. The State's 
Forest Activities standard is comparable to the Federal Logging 
Operations standard as published in the Federal Register on October 12, 
1994, and amended through March 7, 1996. Oregon's Steel Erection 
standard for construction is comparable to the Federal Steel Erection 
standard as published in the Federal Register on January 18, 2001, and 
amended through July 17, 2001.
    Where a State standard adopted pursuant to an OSHA-approved State 
plan differs significantly from a comparable Federal standard or is a 
State-initiated standard that contains significant differences, the 
Occupational Safety and Health Act of 1970 (the Act) requires that the 
State standard be ``at least as effective'' in providing safe and 
healthful employment and places of employment. In addition, if the 
standard is applicable to a product distributed or used in interstate 
commerce, it must be required by compelling local conditions and not 
pose any undue burden on interstate commerce. OSHA, therefore, seeks 
public comment as to whether these Oregon State standards meet the 
above requirements.

DATES: Written comments should be submitted by September 8, 2004.

ADDRESSES: Written comments should be submitted to the Regional 
Administrator, Region X, Occupational Safety and Health Administration, 
1111 Third Avenue, Suite 715, Seattle, Washington 98101-3212, by mail, 
telefax (206-553-6499), or e-mail ([email protected].)

FOR FURTHER INFORMATION CONTACT: For general information and press 
inquiries, contact Mike Shimizu, Director, Office of Public Affairs, 
U.S. Department of Labor, 1111 Third Avenue, Suite 930, Seattle, 
Washington 98101-3212, Telephone: (206) 553-7620. For technical 
inquiries, contact the Region X Office of Technical Support, OSHA, U.S. 
Department of Labor, 1111 Third Avenue, Suite 715, Seattle, Washington 
98101-3212, Telephone: (206) 553-5930. Oregon's referenced standards 
and program directives may be accessed on the State's Web page at 
http://www.cbs.state.or.us/external/osha/rules. Electronic copies of 
this Federal Register notice, as well as referenced Federal OSHA 
standards and directives, are available on OSHA's Web page at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

I. Introduction

A. Background

    The requirements for adoption and enforcement of safety and health 
standards by a State with a State plan approved under section 18(b) of 
the Act (29 U.S.C. 667) are set forth in section 18(c)(2) of the Act 
and in 29 CFR 1902, 1952.7, 1953.4, 1953.5 and 1953.6. OSHA regulations 
require that States respond to the adoption of new or revised permanent 
Federal standards by State promulgation of comparable standards within 
six months of OSHA publication in the Federal Register (29 CFR 
1953.5(a)). Independent State standards must be submitted for OSHA 
review and approval. Newly adopted State standards must be submitted 
for OSHA review and approval under procedures set forth in 29 CFR Part 
1953, but, as they are adopted under authority of State law, they are 
enforceable by the State upon adoption and prior to Federal review and 
approval.
    Section 18(c)(2) of the Act provides that if State standards which 
are not identical to Federal standards are applicable to products which 
are distributed or used in interstate commerce, such standards must be 
required by compelling local conditions and must not unduly burden 
interstate commerce. (This latter requirement is commonly referred to 
as the ``product clause'').

[[Page 48254]]

    On December 28, 1972, notice was published in the Federal Register 
(37 FR 286228) of the approval of the Oregon plan and the adoption of 
Subpart D to Part 1952 containing the decision and a description of the 
State's plan. The Oregon plan provides for the adoption of State 
standards that are ``at least as effective'' as comparable Federal 
standards promulgated under section 6 of the Act. The Administrator of 
the Oregon Occupational Safety and Health Division (OR-OSHA), 
Department of Consumer and Business Services is empowered to create, 
adopt, modify, and repeal rules and regulations governing occupational 
safety and health standards following public notice and a hearing in 
conformance with the State's Administrative Procedures Act. Public 
notice describing the subject matter of the proposed rule, and where 
and when the hearing will occur must be published in the State 
newspapers at least 30 days in advance of the hearing. The 
Administrator considers all recommendations by any member of the public 
in the promulgation process. Whenever the Administrator adopts a 
standard, the effective date is usually 30 days after signing.
1. Fall Protection
    In response to the promulgation of the Federal Fall Protection 
standard for construction at 29 CFR 1926.500-503 and appendices (1926 
Subpart M) as published in the Federal Register (59 FR 40732) on August 
9, 1994, with amendments on January 26, 1995 (60 FR 5131), August 2, 
1995 (60 FR 39255) and January 18, 2001 (66 FR 5265), Oregon adopted a 
comparable standard at OAR-003-1926.400 (Division 3/M) under 
Administrative Order 6-1995, on April 18, 1995, with amendments made on 
September 15, 1997; February 8, 2000; February 5, 2001; April 15, 2002; 
and July 19, 2002, under Administrative Orders 7-1997, 3-2000, 3-2001, 
3-2002 and 6-2002. Oregon's current standard contains these differences 
from the Federal standard:
    a. The Oregon standard does not contain all of the Federal 
provisions at 1926.501(b)(1) through (b)(15) that require employees to 
be protected from falling more than six feet to a lower level for 15 
construction surfaces/activities. The Oregon standard requires 
employees to be protected from falling more than 10 feet to a lower 
level, but retains the six-foot requirement for holes, wall openings, 
established floors, mezzanines, balconies, walkways and excavations. 
Oregon has also retained the Federal standard for protecting employees 
from falling into or onto dangerous equipment from heights below six 
feet. The surfaces/activities where the fall protection has been raised 
to 10 feet are leading edges, overhand bricklaying and related work, 
roofing work, precast concrete erection, residential construction, and 
formwork and reinforcing steel. In effect, the State has raised the 
height at which fall protection is required from six to ten feet for 
those working surfaces and activities where guardrail systems are 
normally impractical and personal fall arrest systems are most often 
the only reasonable alternative. The higher 10 foot trigger height is 
deemed by the State to be necessary for these six surfaces/activities 
because personal fall arrest systems require at least 10 feet of height 
to be effective in preventing an employee from striking a lower level 
in a fall situation. To increase overall safety, the State has removed 
several compliance alternatives allowed by the Federal standards where 
fall arrest systems can be used effectively. OSHA has experienced 
similar difficulty in requiring conventional fall protection for these 
six surfaces/activities and as a result, its standard and policy allow 
alternatives to be used in lieu of conventional fall protection. These 
alternatives may be used at all heights, not just between six and ten 
feet.
    The Federal standard addressing leading edges, precast concrete 
erection, overhand bricklaying and related work, and residential 
construction, allows employees to work in controlled access zones 
without fall protection regardless of height. The other areas that are 
affected by this difference are roofing work, and formwork and 
reinforced steel work. On rebar walls, OSHA policy allows employees to 
move from point to point without fall protection up to 20 feet in 
height. The Federal standard addressing roofs allows a safety monitor 
system to be used on roofs with slopes up to and including 4 in 12. The 
Oregon standard limits the use of the safety monitor system to slopes 
of 2 in 12 and less. Oregon is consistent with other OSHA policy in 
these areas with one exception. OSHA Directive STD 3-00-001 (STD 3-
0.1A), Plain Language Revision of OSHA Instruction 3.2, Interim Fall 
Protection Compliance Guidelines for Residential Construction, June 18, 
1999, exempts employees working on the top of residential concrete and 
block foundation walls and related formwork from using fall protection. 
Oregon did not adopt this policy and requires fall protection for 
employees working above 10 feet.
    OSHA standards and policy allow employers to utilize alternatives 
to conventional fall protection that the Oregon standards and policy do 
not. This difference results in the State standard providing protection 
for more workers at heights above 10 feet than the Federal standard. 
The Oregon 10-foot rule for residential construction has been in effect 
since June 1, 1995, and the 10-foot rule for general construction has 
been in effect since July 19, 2002. During that time, OSHA has received 
no indication of significant objection to the State's different 
standard as to its effectiveness in comparison to the Federal standard.
    b. The Oregon standard contains criteria for personal fall 
restraint systems. OSHA allows fall restraint systems, but the Federal 
standard does not address them. The Oregon standard is consistent with 
Federal policy on restraint systems.
    c. Oregon does not allow the use of controlled access zones and, 
therefore, has removed 29 CFR 1926.502(g), criteria for controlled 
access zones.
    d. The Oregon standard allows the use of slide guards consistent 
with OSHA Directive STD 3-00-001 (STD 3-0.1A). The Federal standard 
does not address slide guards.
    e. The Oregon standard adds definitions for Fall Protection 
Systems, Personal Fall Restraint Systems, Rake Edge and Slide Guard 
System and removes the definitions for Controlled Access Zones, Low-
slope Roof and Steep Roof.
2. Forest Activities
    In response to the promulgation of the Federal Logging Operations 
standard, 29 CFR 1910.266, as published in the Federal Register (59 FR 
51672) on October 12, 1994, with amendments on September 8, 1995 (60 FR 
47022) and March 7, 1996 (61 FR 9241), Oregon determined that its 
existing Logging standard in OAR, Chapter 437, Division 6, was as 
effective and asked that the standard be approved. This standard was 
adopted on September 27, 1991, under OR-OSHA Administrative Order 12-
1991. After discussion with OSHA, however, the standard was repealed on 
June 2, 2003, and a new OAR Chapter 437, Division 7 Forest Activities 
standard (OAR 437-007-0001 through 1405) was adopted under OR-OSHA 
Administrative Order 5-2003, and amended on June 7, 2004, under OR-OSHA 
Administrative Order 3-2004.
    Oregon's current standard contains many requirements that are 
different from or supplemental to the Federal standard. The significant 
differences are as follows:
    a. The scope of the Oregon standard is broader and covers many more 
activities. The OSHA standard defines logging operations associated 
with

[[Page 48255]]

felling and moving trees and logs from the stump to the point of 
delivery, such as, but not limited to, marking danger trees and trees/
logs to be cut to length, felling, limbing, bucking, debarking, 
chipping, yarding, loading, unloading, storing, and transporting 
machines, equipment and personnel to, from and between logging sites. 
The Oregon standard applies to all forest activity operations including 
but not limited to: chemical application; chipping; clearing and slash 
disposal; fire fighting; forest road construction, maintenance and 
decommissioning; log dumps, ponds, plantsite log yards and independent 
sort yards; log hauling; marking; pulpwood and non-pulpwood logging; 
reforestation/vegetation management; stream restoration; timber cutting 
and thinning operations; timber cruising.
    b. Both standards require the use of head protection when there is 
a potential for head injury, but the Oregon standard lists specific 
work areas where head protection is not necessary.
    c. The OSHA standard requires employees to work within visual or 
audible contact with another employee. The Oregon standard requires 
teams with a minimum of two employees for some jobs and lists other 
jobs where employees can work alone as long as certain conditions are 
met.
    d. The OSHA and Oregon requirements for falling objects protective 
structures (FOPS) and roll-over protective structures (ROPS) do not 
apply to machines that are capable of 360 degree rotation. After July 
1, 2009, the Oregon standard will require machines that are capable of 
360 degree rotation to have ROPS unless they are used on surfaces of 
less than 20 percent slope, or on slopes of less than 40 percent when 
used as anchors for cable yarding systems.
    e. The OSHA and Oregon standards require protective structures for 
machines to be of a size that does not impede the operator's normal 
movements. The Oregon standard also requires the cab of machines 
manufactured after July 1, 2004, to comply with the International 
Organization for Standards (ISO) 3411:1995.
    f. The OSHA and Oregon standards for machine cabs have construction 
requirements to prevent materials from entering the cab and to allow 
for maximum visibility. The Oregon standard also requires cabs to meet 
the requirements of the Society of Automotive Engineers (SAE) J1084 
April 80 or ISO 8084:1993.
    g. The OSHA and Oregon standards for egress and access to machines 
require compliance with SAE J185-1988. The Oregon standard also allows 
compliance with ISO 2867:1994.
    h. The OSHA and Oregon standards for ROPS require that they comply 
with the Society of Automotive Engineering (SAE) requirements. The 
Oregon standard also allows ROPS to meet the ISO 8082:1994 
requirements.
    i. The Federal standard for First Aid and CPR training requires all 
employees to be trained prior to initial assignment to work. The Oregon 
standard requires all supervisors and cutters to be first aid and CPR 
trained prior to their initial assignment; all other new employees must 
be briefed on first aid and CPR before their initial assignment, if 
they are not first aid or CPR trained, and must receive first aid and 
CPR training within 6 months of being hired. OR-OSHA's enforcement 
policy for forest activities first aid training, Program Directive A-
254 issued on May 24, 2004, provides guidelines for determining if the 
number and location of first aid and CPR trained individuals are 
adequate at forest activity operations to provide emergency medical 
care in a timely manner.
    j. The Oregon forest activities standard contains the following 
additional requirements not present in the OSHA logging standard: 
requires employers to develop and implement a written safety and health 
program; requires that accident scenes not be disturbed until allowed 
by the Oregon Program Administrator or designee or by a recognized law 
enforcement agency; requires the employer to conduct accident 
investigations with employee involvement and a written report, and 
monthly safety meetings with written notes; has requirements for 
nighttime logging; requires employers to conduct and document a pre-
work safety survey; specifically addresses the design and construction 
of haul roads and has warning sign requirements; has cable logging 
requirements; addresses the use of wedges and felling methods such as 
tree pulling and tree jacking; has requirements for the design of log 
landings and work practices that must be followed; addresses the 
loading, transportation, unloading and decking of logs and wood fiber; 
contains requirements for prescribed burns and fire suppression; and 
has signaling system requirements.
3. Steel Erection
    In response to the promulgation of the Federal Steel Erection 
standard, 29 CFR 1926.750-761 and appendices (Subpart R), as published 
in the Federal Register (66 FR 5196) on January 18, 2001, with a delay 
in the effective date published on July 17, 2001 (66 FR 37137), Oregon 
adopted its standard at OAR 437-003-1926.750 through 761 and appendices 
(OAR 437 Division 3/R) on April 5, 2002, effective April 18, 2002, 
under Administrative Order 3-2002. Changes to the State's standards at 
Subdivisions R (steel erection) and M (fall protection) were adopted 
and effective on July 19, 2002, under Administrative Order 6-2002. 
These amendments required a 10 foot fall protection trigger height for 
all construction trades in Oregon (including steel erection) except for 
6 feet for holes, wall openings, established floors, mezzanines, 
balconies, walkways, excavations, and working over dangerous equipment. 
The 2003 Oregon State Legislature's House Bill 3010 directed OR-OSHA to 
revise the Steel Erection standard to parallel the Federal requirements 
and not require the use of fall protection by workers engaged in steel 
erection at heights lower than the heights at which fall protection 
relating to steel erection is required by Federal regulations. The 
Federal steel erection standard requires fall protection at 15 feet in 
general, and at 30 feet for connectors and employees working in 
controlled decking zones. Accordingly, the State adopted amendments to 
its Steel Erection standard on December 30, 2003, effective January 1, 
2004, under Administrative Order 8-2003. The State standard is now 
almost identical to the comparable Federal standard with the following 
additions:
    a. The Oregon rule defines an ``opening'' as a gap or void 12 
inches or more in any direction. The Federal rule defines ``opening'' 
as a gap or void 12 inches or more in its least dimension.
    b. The Oregon rule requires that a copy of the written 
notifications to the controlling contractor (as required by 1926.752(a) 
& (b)) be maintained at the jobsite. The Federal rule does not require 
such written notifications to be maintained at the jobsite.
    c. The Oregon rule requires that the steel erection contractor 
develop a written site-specific erection plan. The Federal rule allows 
employers the option of developing alternate employee protection means 
and methods in a site-specific erection plan for any of the three 
activities relating to hoisting and rigging and open web steel joists 
that are specified in the standard at 1926.752(e).
    d. The Oregon rule requires that tag lines be used to control loads 
except when it is determined, by a qualified rigger, that they create a 
hazard. The Federal rule does not require tag lines.
    e. The Oregon rule requires that large roof and floor openings that 
cannot be decked over, be protected by covers or guardrails as soon as 
the openings are

[[Page 48256]]

created. The Federal rule requires these openings to be protected in 
accordance with 1926.760(a)(1).
    f. The Oregon rule requires a written certification of training 
record. The Federal rule does not.
    g. The Oregon rule requires employees to be retrained in certain 
conditions. The Federal rule does not address retraining.

B. Issues for Determination

    The Oregon standards in question are now under review by the 
Regional Administrator to determine whether they meet the requirements 
of section 18(c)(2) of the Act and 29 CFR Parts 1902 and 1953. Public 
comment is being sought by OSHA on the following issues.
``At Least as Effective'' Requirement
    Oregon's Fall Protection standard for construction in OAR Chapter 
437, Division 3, Subpart M is comparable to OSHA's standard 29 CFR 
1926, Subpart M; Oregon's Forest Activities (Logging) standard at OAR 
Chapter 437, Division 7 is comparable to OSHA's standard, 29 CFR 
1910.266; and the State's Steel Erection standard in OAR Chapter 437, 
Subpart R is comparable to OSHA's 29 CFR 1926, Subpart R. OSHA has 
evaluated the State's standards in comparison to the respective OSHA 
standards requirements and enforcement policies and has preliminarily 
determined that the State's standards in question meet the ``at least 
as effective'' criterion on section 18(c)(2) of the Occupational Safety 
and Health Act. However, public comment on the equivalent effectiveness 
of these standards is solicited for OSHA's consideration in its final 
decision on whether or not to approve these Oregon State standards.
Product Clause Requirement
    OSHA is also seeking through this notice public comment as to 
whether the Oregon standards:
    (a) Are applicable to products which are distributed or used in 
interstate commerce;
    (b) If so, whether they are required by compelling local 
conditions; and
    (c) Unduly burden interstate commerce.

C. Public Participation

    Interested persons are invited to submit written data, views and 
arguments with respect to the State standards and the issues described 
above. These comments must be postmarked on or before September 8, 2004 
and submitted to the Regional Administrator, Region X, U.S. Department 
of Labor-OSHA, 1111 Third Avenue, Suite 715, Seattle, WA 98101-3212, 
fax: (206) 553-6499, e-mail: [email protected]. Written 
submissions must clearly identify the issues which are addressed and 
the position taken with respect to each issue. The Occupational Safety 
and Health Administration will consider all relevant comments, 
arguments and requests submitted concerning these standards and will 
publish notice of the decision approving or disapproving the standards.

D. Location of Supplement for Inspection and Copying

    Copies of basic State plan documentation are maintained at the 
following locations; specific documents are available upon request, 
including a copy of these State standards and the submitted comparisons 
to the equivalent Federal standards. Oregon's standards, program 
directives and other documents may be accessed on the State's Web page 
at http://www.cbs.state.or.us/external/osha/rules. Contact the Office 
of the Regional Administrator, U.S. Department of Labor-OSHA, 1111 
Third Avenue, Suite 715, Seattle, Washington 98101-3212, (206) 553-
5930, fax (206) 553-6499; Department of Consumer and Business Services, 
Oregon Occupational Safety and Health Division, 350 Winter Street NE., 
Room 430, Salem OR, 97310, (503) 378-3272, fax (503) 947-7461; and the 
Office of State Programs, Occupational Safety and Health 
Administration, Room N3700, 200 Constitution Avenue, NW, Washington, DC 
20210, (202) 693-2244, fax (202) 693-1671. Electronic copies of this 
Federal Register notice, as well as referenced Federal OSHA standards 
and directives, are available on OSHA's Web page at http://www.osha.gov.
    This notice is issued pursuant to section 19 of the Occupational 
Safety and Health Act of 1970, Pub.L. 91-596, 84 STAT 6108 (29 U.S.C. 
667).

    Signed at Seattle, Washington, this 13th day of July, 2004.
Richard S. Terrill,
Regional Administrator.
[FR Doc. 04-18081 Filed 8-6-04; 8:45 am]
BILLING CODE 4510-26-P