Oregon State Standards; Approval

DEPARTMENT OF LABOR

Oregon State Standards; 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 (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.

In response to Federal standards amendments, the State has

submitted by letters dated April 16, and October 16, 1992, 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 1910.1048, Formaldehyde, as published in the Federal Register

(57 FR 2681) on January 23, 1992, (57 19262) on May 5, 1992, (57 FR

22290) on May 27, 1992, (57 FR 24701) on June 10, 1992, and (57 FR

27160) on June 18, 1992. The State's rules pertaining to Formaldehyde,

contained in OAR 437-02-360(28), were adopted by reference on April 16,

1992, and October 13, 1992, pursuant to ORS 654.025(2), ORS 656.726(3),

and ORS 183.335, as ordered and transmitted under OR-OSHA

Administrative Orders 4-1992 and 12-1992. On March 24, 1991, and July

16, 1991, the State mailed the Notice of Proposed Amendment of Rules to

those on the Department of Insurance and Finance Mailing list,

established pursuant to OAR 431-01-000 and to those on the Department's

distribution list as their interest appeared. No written requests for a

public hearing were received. The State's rules pertaining to

Formaldehyde, contained in OAR 437-02-360(28), were originally adopted

by reference and approved in the Federal Register on January 13, 1989

(54 FR 1461), with other amendments approved on April 26, 1991 (56 FR

19382).

By letter dated January 6, 1993, from John A. Pompei,

Administrator, to James W. Lake, Regional Administrator, and

incorporated as part of the plan, the State on its own initiative

submitted a repeal of OAR 437-02-370, and adopted by reference

Sec. 1910.1025(e)(1), table 1, Lead Implementation Schedule. The State

standard was adopted and became effective on December 7, 1992, pursuant

to ORS 654.025(2), ORS 656.726(3), and ORS 183.335, as ordered and

transmitted under OR-OSHA Administrative Order 14-1992. The State's

Lead standard was originally approved in the Federal Register (54 FR

38300) on September 15, 1989. The change became necessary when on July

19, 1991, the U.S. Court of Appeals for the District of Columbia lifted

the judicial stays of the Lead standard for all industries, except

brass and bronze ingot production.

On its own initiative, the State has submitted by letter dated

October 19, 1993, from John A. Pompei, Administrator, to James W. Lake,

Regional Administrator, and incorporated as part of the plan, a

revision to State rules comparable to 29 CFR 1910.134, Respiratory

Protection, as published in the Federal Register (39 FR 23671) on June

27, 1974. The State's original adoption of Respiratory Protection was

promulgated as OAR 437, Chapter 22-69, and received Federal Register

approval at 40 FR 50583 on October 30, 1975. The State's standard was

subsequently recodified as OAR 437, Division 129, with Federal Register

approval at 52 FR 27026 on July 17, 1987. The State has repealed OAR

437, Division 129, in its entirety, and has incorporated 29 CFR

1910.134, Respiratory Protection, by reference as OAR 437-02-1910.134.

The State's readoption by reference also deleted General and Special

Industry Safety and Health Standards, Revocation, as published in the

Federal Register (43 FR 49748) on October 24, 1978, and Revocation of

Advisory and Repetitive Standards as published in the Federal Register

(49 FR 5322) on February 10, 1984. The State has also adopted one

State-initiated rule at OAR 437-02-133 on air quality in respirators in

lieu of 29 CFR 1910.134(d)(1), which updates the Compressed Gas

Association Commodity Specification from G-7.1-1966 (as in the Federal

rule) to G-7.1-1989. During the early period of Oregon's program, the

State elected not to adopt by reference standards comparable to 29 CFR

1910.137, Electrical Protective Devices, 1910.138, Effective Dates,

Sec. 1910.139, Sources of Standards, and 1910.140, Standards

Organizations. (These standards are at the end of 29 CFR 1910 subpart

I, Personal Protective Equipment.) With this notice the State has

chosen to do so, at OAR 437-02, Subdivision I. On March 22, 1993, the

Notice of Proposed Revision of Rules was mailed to those on the

Department of Insurance and Finance mailing list established pursuant

to OAR 436-90-505 and to those on the Department's distribution mailing

list as their interest appeared. Both actions failed to elicit a

request for hearing; however, two written comments were received which

recommended that the State retain its more specific language in some

areas of the standard. The State's revision was adopted on July 29,

1993, with an effective date of September 15, 1993, through OR-OSHA

Administrative Order 9-1993.

The State submitted by letter dated October 19, 1993, from John A.

Pompei, Administrator, to James W. Lake, Regional Administrator, and

incorporated as part of the plan, a State standards revision comparable

to 29 CFR 1910.133, Eye and Face Protection, as published in the

Federal Register (39 FR 23670) on June 27, 1974. The Oregon Eye and

Face Protection Standard is contained in OAR 437-02-1910.133. The

State's original standard was adopted as OAR 437 chapter 7, section 3,

rules 5 through 12 on March 19, 1974, and received Federal Register

approval (39 FR 38036) on October 25, 1974. The State standard was

subsequently recodified without change as OAR 437 Division 50-025 and

received Federal Register approval (52 FR 27077) on July 17, 1987. OAR

437, Division 50 has been repealed in its entirety. On March 22, 1993,

the Notice of Proposed Revision of Rules was mailed to those on the

Department of Insurance and Finance mailing list established pursuant

to OAR 436-90-505 and to those on the Department's distribution mailing

list as their interest appeared. Both actions failed to elicit a

request for hearing; however, two written comments were received which

recommended that the State retain its more specific language in some

areas of the standard. The State's revision was adopted on July 29,

1993, with an effective date of September 15, 1993, through OR-OSHA

Administrative Order 9-1993. The State has retained one State-initiated

standard requiring eye protection for employees exposed to laser beams

which was previously approved by OSHA. The renumbering changes for the

State-initiated rule are as follows: Originally adopted as OAR 437-7-3-

2, recodified as OAR 437-50-025(12), and readopted as OAR 437-02-

130(2). The State's more stringent rule received Federal Register

approval (39 FR 38036) on October 25, 1974 as part of Oregon's response

to Federal OSHA's 29 CFR 1910.133, Eye and Face Protection, as

published in the Federal Register (39 FR 23670) on June 27, 1974. The

State has also retained a minor State-initiated rule at OAR 437-02-

130(1), previously OAR 437-50-025(3), which requires eye and face

protection equipment to be designed and used in accordance with ANSI

Z87.1-1989.

2. Decision

Having reviewed the State submissions in comparison with the

Federal standards, amendments and corrections, it has been determined

that the State standard amendments for Formaldehyde, Lead, and Personal

Protective Equipment are identical to the Federal standards. OSHA

therefore approves these amendments. OSHA has also determined that the

Respiratory Protection amendments are at least as effective as the

comparable Federal amendments, as required by section 18(c)(2) of the

Act. In addition, OSHA has determined that the differences between the

State and Federal Respiratory Protection amendments are minimal and

that the standards are thus substantially identical. OSHA therefore

approves these amendments; however, the right to reconsider this

approval is reserved should substantial objection be submitted to the

Assistant Secretary.

Regarding the Eye and Face Protection amendments, OSHA has

determined that these amendments are at least as effective as the

comparable Federal amendments, as required by section 18(c)(2) of the

Act. With the adoption by reference of Sec. 1910.133, the State's

standard is now identical to the Federal, except for the retention of

two State-initiated rules. One of these rules was approved in the

Federal Register in 1974, and the other rule is minor. OSHA therefore

approves the standard; however, the right to reconsider this approval

is reserved should substantial objections be submitted to the Assistant

Secretary.

3. Location of Supplement for Inspection and Copying

A copy of the standards supplement, 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,

DC 20210.

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 amendment is as effective as the Federal standard

which was promulgated in accordance with the Federal law including

meeting requirements for public participation.

2. The standard amendment was adopted in accordance with the

procedural requirements of State law and further public participation

would be repetitious.

This decision is effective March 4, 1994.

Authority: Sec. 18, Public Law 91-596, 84 Stat. 1608 [29 U.S.C.

667].

Signed at Seattle, Washington, this 29th day of December 1993.

Richard S. Terrill,

Deputy Regional Administrator.

[FR Doc. 94-5010 Filed 3-3-94; 8:45 am]

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