DEPARTMENT OF LABOR

Occupational Safety and Health Administration

Washington 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 January 26, 1973, notice was published in the Federal Register (38 FR 2421) of the approval of the Washington plan and the adoption of Subpart F to Part 1952 containing the decision.

The Washington 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. Section 1953.20 provides that where any alteration in the Federal program could have an adverse impact on at least as effective as status of the State program, a program change supplement to a State plan shall be required.

On its own initiative, the State submitted by letter dated April 2, 1993, from Mark O. Brown, Director, to James W. Lake, Regional Administrator, and incorporated as part of the plan, amendment of the State Agriculture Standard 296-306-WAC comparable to the Federal Standard 29 CFR 1928. The State-initiated amendment incorporates new sections to the State Agriculture standard including: WAC 296-306-061, machinery and machine guarding, and WAC 296-306-330, decontamination. (Several new pesticides sections were also added, but these are outside the scope of the State plan.) In addition, the amendment contains several regulatory and administrative changes to the State Agriculture standard. The State adopted the amendment by Administrative Order (AO) 92-24 on March 4, 1993, effective June 1, 1993. Regional Office review revealed discrepancies and the submission was returned to the State for correction. In a letter dated July 24, 1995, from Mark O. Brown, Director, to Richard S. Terrill, Acting Regional Administrator, the State re-submitted its entire Agriculture Standard 296-306-WAC after making corrections. The State-initiated amendment also included minor changes to supplementary requirements for materials handling and storage, guarding of power tools, hazardous materials, aerial manlift equipment and the application of WAC 296-24-233, motor vehicle trucks and trailers in the State Agriculture rules. The State adopted the amendment by AO 94-21 on May 1, 1995 with an effective date of January 16, 1996. In a letter of November 9, 1994, from Mark O. Brown, Director, to James W. Lake, Regional Administrator, the State submitted State-initiated amendments to the State Agriculture Standard incorporating new and amended sections addressing machine guarding and electrical requirements. The amendments were adopted by AO 94-01 on September 1, 1994, effective September 1, 1994.

On its own initiative, the State submitted by letters dated February 23, 1988 and December 7, 1990, from Joseph A. Dear, Director, to James W. Lake, Regional Administrator, and April 2, 1993 and April 8, 1994, from Mark O. Brown, Director, to James W. Lake, Regional Administrator, amendments to the State Agriculture standards concerning supplementary requirements for Rollover Protective Structures (ROPS) for materials handling equipment, WAC 296-306-260, which incorporates WAC 296-306-27095 Exhibit B, Figure C-17 through C-34. These amendments were adopted by the State in AO 87-24 on November 30, 1987, effective December 30, 1987; in AO 91-01 on May 20, 1991 effective June 20, 1991; in AO 92-24 on March 4, 1993 effective June 1, 1993; and in AO 93-17 on March 2, 1994, effective April 15, 1994. The State Agriculture standards supplementary requirements for ROPS for materials handling equipment parallel OSHA's ROPS requirements in 29 CFR Part 1926, Safety and Health Regulations for Construction.

On its own initiative, the State submitted by letter dated April 8, 1994 from Mark O. Brown, Director, to James W. Lake, Regional Administrator, amendment to the State Agriculture standard 296-306-WAC. The State-initiated amendment removes an exemption for the Agriculture industry from the following State standards and makes these sections applicable in Agriculture: WAC 296-24-11001, control of hazardous energy (Lockout/Tagout; WAC 296-24-12001, sanitation; WAC 296-24-14011, accident prevention tags; WAC 296-24-33003, flammable and combustible liquids; WAC 296-24-58503, fire protection; and WAC 296-24-73501, walking-working surfaces. In addition, the State-initiated amendment contains several regulatory and administrative changes to the State Agriculture standards. The State adopted the amendment by AO 93-17 on March 2, 1994, effective March 1, 1995.

On its own initiative, the State submitted by letter dated November 20, 1995 from Mark O. Brown, Director, to Richard S. Terrill, Acting Regional Administrator, an amendment to the State Agriculture standard 296-306-WAC. The State-initiated amendment removes the March 1, 1995 application date and reinstates the exemption for the State's Agriculture standard from WAC 296-24-33003, flammable and combustible liquids; WAC 296-24-58503, fire protection; and WAC 296-24-73501, walking-working surfaces. The State-initiated amendment also removes the March 1, 1995 application date from WAC 296-24-14011, accident prevention tags. In addition, the amendment removes the March 1, 1995 effective date from WAC 296-24-12001, sanitation, and includes an agriculture exemption for the shower requirements of WAC 296-24- 12009(3). The State adopted the amendment by AO 94-19 on October 20, 1995, effective January 16, 1996.

All of the administrative orders were adopted pursuant to RCW 34.04.040(2), 49.17.040, 49.17.050, Public Meetings Act RCW 42.30, Administrative Procedures Act RCW 34.04, and the State Register Act RCW 34.08. All these amendments have been incorporated as part of the State plan. The original State standard, Safety Standards for Agriculture, received approval on Tuesday, August 9, 1977 (42 FR 40278).

2. Decision

OSHA has determined that the State standard amendments for Agriculture are at-least-as-effective-as the comparable Federal standard, as required by Section 18(c)(2) of the Act. For the Agriculture amendments adopted by Administrative Orders 94-19 and 94- 21, OSHA has also determined that the differences between the State and Federal standards are minimal and that the standards are thus substantially identical. The other Agriculture amendments have been in effect since at least March 1, 1995. During this time OSHA has received no indication of significant objection to the State's different standard either as to its effectiveness in comparison to the Federal standard or as to its conformance with the product clause requirements of section 18(c)(2) of the Act. (A different State standard applicable to a product which is distributed or used in interstate commerce must be required by compelling local conditions and not unduly burden interstate commerce.) OSHA therefore approves these standards; 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; State of Washington Department of Labor and Industries, Division of Industrial Safety and Health, 7273 Linderson Way, S.W., Tumwater, Washington 98501; and the Office of State Programs, Occupational Safety and Health Administration, Room N- 3476, 200 Constitution Avenue, NW, Washington, D.C. 20210. For electronic copies of this Federal Register notice, contact OSHA's WebPage at http://www.osha.gov/.

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 Washington 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 at-least-as-effective-as the Federal standard which was promulgated in accordance with the 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 August 5, 1997. (§ 18, Pub. L. 91- 596, 84 STAT. 6108 [29 U.S.C. 667]).

Signed at Seattle, Washington, this 15th day of May, 1997.

Richard S. Terrill,
Acting Regional Administrator.

[FR Doc. 97-20550 Filed 8-4-97; 8:45 am)