[Federal Register Volume 70, Number 86 (Thursday, May 5, 2005)]
[Notices]
[Pages 23886-23888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8918]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration


Oregon State Plan: Approval of Oregon State Standards

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

ACTION: Approval of Oregon State standards for fall protection, forest 
activities and steel erection.

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SUMMARY: The Occupational Safety and Health Administration (OSHA) is 
approving three standards: fall protection, forest activities and steel 
erection, promulgated by the Oregon Department of Consumer and Business 
Services pursuant to its OSHA-approved state plan. These standards 
differ from the equivalent federal standards but have been determined 
to be ``at least as effective'' as the federal standards.
    On August 9, 2004, OSHA published a Federal Register notice (69 FR 
48253) requesting public comment on whether the Oregon standards met 
both the ``at least as effective'' criterion and product clause tests 
of Section 18(c)(2) of the Occupational Safety and Health Act. This 
notice invited interested persons to submit by September 8, 2004, 
written comments and views regarding the Oregon state standards and 
whether they should be approved by the Regional Administrator. OSHA 
received two comments in response to the fall protection standard.

DATES: Effective Date: May 5, 2005.

FOR FURTHER INFORMATION CONTACT: Barbara Bryant, Director, Office of 
State Programs, Directorate of Cooperative and State Programs, 
Occupational Safety and Health Administration, Room N3700, 200 
Constitution Avenue, NW., Washington, DC 20210, telephone (202) 693-
2244. You may access Oregon's standards on the state's Web page at 
http://www.cbs.state.or.us/external/osha/standards/standards. You may 
also access electronic copies of this Federal Register notice, as well 
as federal OSHA standards, 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 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'').
    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.

[[Page 23887]]

B. Standards Approved

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 40672) on 
August 9, 1994, with amendments on January 26, 1995 (60 FR 5131), 
August 2, 1995 (60 FR 39254) and January 18, 2001 (66 FR 5317), Oregon 
adopted 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.
    The federal provisions at 29 CFR 1926.501(b)(1) through (b)(15) 
generally require employers to use conventional fall protection to 
protect employees from fall hazards at heights of six feet or more, 
though for many work activities employers can use alternative measures 
in lieu of conventional fall protection. The Oregon standard, in 
contrast, requires employers to use conventional fall protection to 
protect employees from fall hazards at heights of 10 feet or more [per 
OAR 437-003-1501], but generally does not permit the use of the 
alternative measures allowed under the federal standard.\1\ In 
addition, Oregon 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. (For a more complete list of differences 
between the federal fall protection standard and Oregon's fall 
protection program see OSHA's August 9, 2004 Federal Register notice 
requesting public comment (69 FR 48253), available on OSHA's Web site 
at http://www.osha.gov.).
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    \1\ The state adopted a 10 foot trigger height 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 state deems the higher trigger height 
necessary for circumstances where 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.
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    The Oregon standard for fall protection in residential construction 
has been in effect since June 1, 1995, and the state's standard for 
fall protection in 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.
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 9228), 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.
    The scope of the Oregon standard is broader and covers all forest 
activity operations, while the federal standard applies only to logging 
operations. Oregon's standard contains many different requirements 
relating to head protection, working within contact of another 
employee, falling object protective structures (FOPS), rollover 
protective structures (ROPS), other protective structures for machines, 
standards for machine cabs, and first aid and CPR training. Oregon's 
forest activities standard also includes numerous additional 
requirements. (For a more complete list of differences between the 
federal logging operations standard and Oregon's forest activities 
standard, see OSHA's August 9, 2004 Federal Register notice requesting 
public comment (69 FR 48253) , available on OSHA's Web site at http://www.osha.gov.).
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 5317) 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 15, 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. The differences or 
additional requirements relate to written site-specific erection plans, 
written notifications to the controlling contractor, tag lines, large 
roof and floor openings, written certifications of training records, 
and definition of the term ``opening''. (For a more complete list of 
differences between the federal steel erection standard and Oregon's 
steel erection standard, see OSHA's August 9, 2004 Federal Register 
notice requesting public comment (69 FR 48253), available on OSHA's Web 
site at http://www.osha.gov.)

II. Public Participation

    On August 9, 2004, OSHA published a Federal Register notice (69 FR 
48253) requesting public comment on whether the Oregon standards for 
fall protection, forest activities and steel erection meet both the 
``at least as effective'' criterion and the product clause test of 
Section 18(c)(2) of the Act. This notice invited interested persons to 
submit by September 8, 2004, written comments and views regarding these 
Oregon standards and whether they should be approved by the Regional 
Administrator. In response to this notice, two comments were received 
concerning Oregon's fall protection standard. No comments were received 
regarding the state's forest activities and steel erection standards. 
One comment, from Michelle Johnson, Safety and Health Supervisor, 
Chelan County Public Utilities District, Washington, was a request for 
information on the Washington state fall protection standard. The 
second comment, from J.

[[Page 23888]]

Nigel Ellis of Ellis Safety Solutions, Wilmington, Delaware, claimed 
that Oregon's 10-foot trigger height for certain fall protection 
requirements renders the state's standard less effective than the 
federal standard. The commenter suggested that Oregon adopt an across-
the-board trigger height of 6 feet to be consistent with the federal 
standard. OSHA has reviewed the Oregon fall protection standard for 
overall effectiveness and in light of the comments received. OSHA has 
also reviewed a letter from Oregon OSHA dated November 16, 2004, 
responding to the comments and providing clarifications and assurances 
regarding its interpretation of the standard and intended enforcement 
policies. OSHA's findings are as follows:
    For many work activities Oregon's fall protection standards mirror 
the federal standard and require employers to provide fall protection 
for employees working at heights of 6 feet and higher. OAR 437-003-
1501(1)-(4). For some tasks, however, Oregon OSHA has a 10-foot trigger 
for fall protection requirements. OAR 437-003-1501. But while the 
federal standard often permits employers to utilize alternative 
measures, e.g., a controlled access zone with a safety monitor, at 
heights of 10 feet and above, OR-OSHA regularly requires the use of 
conventional fall protection at those more dangerous heights. Oregon 
has represented to federal OSHA that employers in that state virtually 
never raise infeasibility as a basis or defense for not providing 
conventional fall protection, and that infeasibility has not been a 
successful argument in a contested case or recognized in settlement 
agreements. Therefore, OSHA has determined that the Oregon standards 
are as strict or stricter than the federal standard with respect to 
those activities for which the state maintains a 6-foot trigger height 
and for all work done at heights of 10 feet or higher. With respect to 
those few fall hazards between 6 and 10 feet that are not otherwise 
covered by Oregon's fall protection standard, the state has assured 
OSHA that it will consider the issuance of citations or orders to 
correct under its general duty clause (ORS 654.010, 654.015), or the 
posting of red warning notices (ORS 654.082). Accordingly, OSHA 
believes that Oregon's fall protection program is at least as effective 
as the federal program.

III. Decision

    Having reviewed the state submissions and public comments submitted 
in response to the August 9, 2004, Federal Register notice, OSHA has 
determined that:
    (1) The state standards meet the ``at least as effective'' criteria 
of Section 18(c)(2) of the Act.
    (2) The record on these standards includes no persuasive evidence, 
developed by or submitted to OSHA, that the standards are not in 
compliance with the product clause test of Section 18(c)(2) of the Act. 
There is no evidence that the standards pose an undue burden upon 
interstate commerce or are not based upon compelling local conditions. 
Therefore the standards are presumed to be in compliance with Section 
18(c)(2) of the Act.
    OSHA therefore approves these standards; however, OSHA reserves the 
right to reconsider this approval should substantial objections be 
submitted to the Assistant Secretary.

IV. Location of Basic State Plan Documentation

    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, the submitted comparisons to 
the equivalent federal standards, and public comments received. 
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, 
Occupational Safety and Health Administration, 1111 Third Avenue, Suite 
715, Seattle, Washington 98101-3212, (206) 553-5930, fax (206) 553-
6499; Oregon Occupational Safety and Health Division, Department of 
Consumer and Business Services, 350 Winter Street, Room 430, Salem, 
Oregon 97301-3882, (503) 378-3272, fax (503) 7461; and the Office of 
State Programs, Occupational Safety and Health Administration, Room N-
3700, 200 Constitution Avenue, NW., Washington, DC 20210, (202) 693-
2244, fax (202) 693-1671. An electronic copy of this Federal Register 
notice, as well as referenced federal OSHA standards, may be obtained 
from the OSHA home page, http://www.osha.gov.
    This notice is issued pursuant to section 18 of the Occupational 
Safety and Health Act of 1970, Pub. L. 91-596, 84 STAT 1608 (29 U.S.C. 
667).

    Signed at Seattle, Washington, this 9th day of March 2005.
Richard S. Terrill,
Regional Administrator.
[FR Doc. 05-8918 Filed 5-4-05; 8:45 am]
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