Washington State Standards; Request for Public Comment

AGENCY:

Occupational Safety and Health Administration (OSHA), Department of Labor.

ACTION:

Request for comment on Washington State amendments to: Safeguarding Power Transmission Parts Standard.

SUMMARY:

This notice invites public comment on Washington's amendments to its Safeguarding Power Transmission Parts Standard comparable to the Federal final rule at 29 CFR 1910.219 as published in the Federal Register on May 29, 1971, and subsequent changes.

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 must 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 this Washington standard and amendments meet the above requirements.

DATES:

Written comments should be submitted by July 21, 2000.

ADDRESSES:

Written comments should be submitted to the Regional Administrator, Occupational Safety and Health Administration, 1111 Third Avenue, Suite 715, Seattle, Washington 98101-3212.

FOR FURTHER INFORMATION 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.

SUPPLEMENTARY INFORMATION:

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, 1953.21, 1953.22 and 1953.23. 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 1953.23(a)). A 30-day response time is required for State adoption of a standard comparable to a Federal emergency temporary standard (29 CFR 1953.22(a)(1)). 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 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 January 26, 1973, notice was published in the Federal Register (38 FR 2421) of the approval of the Washington State plan and the adoption of Subpart F to Part 1952 containing the decisions.

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. The Director of the Washington Department of Labor and Industries (the Director) 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 Director considers all recommendations by any member of the public in the promulgation process. Whenever the Director adopts a standard, the effective date is usually 30 days after the signing.

Safeguarding Power Transmission Parts

On its own initiative, the State of Washington has submitted by letters dated July 2, 1998, and December 17, 1999, from Michael A. Silverstein, Assistant Director, to Richard S. Terrill, Regional Administrator, a State standard for Safeguarding Power Transmission Parts. The State's initial submittal, a complete rewrite of the standard, was adopted on May 4, 1998, effective January 1, 1999, under Washington Administrative Order 97-11. The State's further revision of the standard was adopted on September 21, 1999, with an effective date of January 1, 2000, under Washington Administrative Order 99-23. The State standard is contained in Chapter 296-24 WAC, Part C. The original State standard for Safeguarding Power Transmission Parts, WAC 296-24-205, received OSHA approval on June 4, 1976 (41 FR 22655).

OSHA has determined that the State standard amendments for Safeguarding Power Transmission Parts are at least as effective as the comparable Federal standard, as required by Section 18(c)(2) of the Act. OSHA has also determined that there are major differences between the State and Federal standards. The State standard is performance-oriented and allows safeguarding by using enclosure guards, devices, safe distances, or safe locations. The State standard allows the employer more flexibility in choosing guard materials that take advantage of current technology, but provide equivalent protection. The State standard is also rewritten in plain language.

B. Issues for Determination

The Washington standard amendments 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

Washington's amendments to the Safeguarding of Power Transmission Parts Standard are comparable to the Federal final rule at 29 CFR 1910.219, Mechanical Power Transmission Apparatus. OSHA has evaluated the State's requirements in comparison to the respective OSHA standard requirements and to enforcement policy and has preliminarily determined that the State's amendments 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 these issues is solicited for OSHA's consideration in its final decision on whether or not to approve theseWashington amendments.

Product Clause Requirement

OSHA is also seeking through this notice public comment as to whether the Washington standard amendments:

(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 issues described above. These comments must be postmarked on or before July 21, 2000 and submitted to the Regional Administrator, U.S. Department of Labor-OSHA, 1111 Third Avenue, Suite 715, Seattle, WA 98101-3212. 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 this standard and will publish notice of the decision approving or disapproving the standard.

D. Location of Supplement for Inspection and Copying

A copy of Washington's standard and amendments applicable to Safeguarding Power Transmission Parts, along with approved State provisions for adoption of standards, may be inspected and copied during normal business hours at the following locations: Office of the Regional Administrator, U.S. Department of Labor-OSHA, 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, DC 20210. For electronic copies of this Federal Register notice, contact OSHA's Web Page at http://www.osha.gov .

Authority: Sec. 18, 84 STAT 6108 [29 U.S.C. 667].