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 the at least as effective as status of the State program, a program change supplement to a State plan shall be required.

In response to a Federal standard change, the State submitted by letter dated November 9, 1994, from Mark O. Brown, Director, to James W. Lake, Regional Administrator, a State standard amendment comparable to 29 CFR 1910.269, Electric Power Generation, Transmission and Distribution, as published in the Federal Register on January 31, 1994, (59 FR 4320), and subsequent corrections published in the Federal Register on June 30, 1994 (59 FR 33658). The State standards were adopted by Administrative Order 94-16 on September 30, 1994, with an effective date of November 20, 1994. A review of the standard revealed discrepancies and the submission was returned to the State for correction. On April 22, 1998, the State submitted by letter from Michael A. Silverstein, Assistant Director, to Richard S. Terrill, Regional Administrator, corrections to the discrepancies. The State standard amendments were adopted by Administrative Order 97-17 on March 6, 1998, with an effective date of May 6, 1998. A review of the amendments revealed new discrepancies and the submission was returned to the State for correction. On June 15, 1999, the State submitted by letter from Michael A. Silverstein, Assistant Director, to Richard S. Terrill, Regional Administrator, the requested corrections. The corrections were adopted by Administrative Order 99-04 on April 20, 1999, and became effective on August 1, 1999. The State standards are contained in Chapter 296-45 WAC, Safety Standards for Electrical Workers. OSHA has determined the following major differences between the State and Federal standards: (1) The State standards did not adopt provisions for live-line bare-hand work. The State requires that rubber gloves be only used on voltages of 5,000 or less between phases. (2) The State standards contain numerous supplemental requirements such as that for underground residential distribution. The State standards also incorporate the requirements of the 1997 National Electrical Safety Code (NESC) (ANSI-C2), Parts (1), (2) and (3) by reference.

On its own initiative, the State of Washington has submitted by letter dated July 27, 1998, from Michael A. Silverstein, Assistant Director, to Richard S. Terrill, Acting Regional Administrator, an amendment to its Construction Safety standard at WAC 296-155-130 for below the hook rigging. On December 18, 1998, the amendment was returned to the State for clarification of several issues. On February 22, 1999, in a letter from Michael A. Silverstein, to Richard S. Terrill, Regional Administrator, clarification was submitted and the standard was found to be comparable to Federal OSHA standards. The main difference is the State amendment was made so the rigging codes would be easier to follow and be located in one place in the Construction Safety standards rather than in various parts. The State's submission was adopted by Washington Administrative Order 96-20 on June 15, 1998, and became effective on August 15, 1998.

On its own initiative, the State has submitted by letter dated March 26, 1999, from Michael A. Silverstein, Assistant Director, to Richard S. Terrill, a State amendment to Washington Health Standards for Emergency Washing Facilities contained in Chapter 296-62. Prior to the change, the State's compliance and consultation officers relied on WAC 296-62-130, WRD 12.35, WRD 91-13A and ANSI Z358.1-1990 to verify compliance with emergency washing facility requirements. This action replaces WISHA Regional Directive 12.35 and WISHA Regional Directive 91-13A. The main difference is the State's amendment revises the current rule by explicitly incorporating certain ANSI requirements in order to eliminate confusion and provide more specific information to the employer. The State's submission was adopted by Washington Administrative Order 98-18 on March 17, 1999, effective June 17, 1999.

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.

2. Decision

OSHA has determined that the State standard amendments for Electric Power Generation, Transmission and Distribution are as least as effective as the comparable Federal standards, as required by section 18(c)(2) of the Act. The major differences in these amendments have been in effect since November 20, 1994. During that 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 amendments. However, the right to reconsider this approval is reserved should substantial objections be submitted to the Assistant Secretary.

OSHA has determined that the State amendments to its Construction Safety Standard (below the hook rigging) and Emergency Washing Facilities 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 these State amendments and the Federal amendments are minor. OSHA therefore approves these amendments; 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, SW., Tumwater, Washington 98501; and the Office of State Programs, Occupational Safety and Health Administration, Room N-3476, 200 Constitution Avenue, NW., Washington, DC 20210. For electronic copies of this Federal Register notice, contact OSHA's Web Page 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 as effective as the Federal standards 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

(Sec. 18, Pub. L. 91-596, 84 STAT. 6108 [29 U.S.C. 667]).