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State
Oregon Regulations
CHAP 437 DEPARTMENT OF CONSUMER AND BUSINESS SERVICES, OREGON OCCUPATIONAL SAFETY AND HEALTH DIVISION DIVISION 1 RULES FOR THE ADMINISTRATION OF THE OREGON SAFE EMPLOYMENT ACT





The Oregon Administrative Rules contain OARs filed through July 14, 2006

DEPARTMENT OF CONSUMER AND BUSINESS SERVICES, OREGON OCCUPATIONAL SAFETY AND HEALTH DIVISION

DIVISION 1

RULES FOR THE ADMINISTRATION OF THE OREGON SAFE EMPLOYMENT ACT

[ED NOTE: OAR 436, Division 046, Rules for the Administration of the Oregon Safe Employment Act, was redesignated as OAR 437, Division 001, by APD Admin. Order 7-1988, filed 6/17/88. Its effective date remains 7/1/74.]



437-001-0001

Model Rules of Procedure

The Model Rules of Procedure, OAR 137-001-0005 through 137-001-0100, in effect on January 1, 2006, as promulgated by the Attorney General of the State of Oregon under the Administrative Procedures Act, are adopted as the rules of procedure for rulemaking actions of the Oregon Occupational Safety and Health Division.

[ED. NOTE: The full text of the Attorney General's Model Rules of Procedure is available from the agency.]

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: OSHA 3-1991, f. & cert. ef. 2-25-91; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 2-1994, f. & cert. ef. 5-19-94; OSHA 2-1996, f. & cert. ef. 6-13-96; OSHA 7-1999, f. & cert. ef. 7-15-99; OSHA 11-2000, f. & cert. ef. 12-12-00; OSHA 2-2002, f. & cert. ef. 3-12-02; OSHA 6-2004, f. & cert. ef. 12-30-04; OSHA 1-2006, f. & cert. ef. 2-14-06

437-001-0002

Notice to Interested Persons of Rulemaking

Except when acting in an emergency to adopt a temporary rule, in accordance with ORS 183.335(5), the Director will give prior notice of the proposed adoption, amendment or repeal of an administrative rule:

(1) By causing notice of the proposed action to be published once, in the Secretary of State's bulletin referred to in ORS 183.360, prior to the effective date of the adoption, amendment or repeal of the rule as provided in ORS 183.335.

(2) By mailing a copy of Notice to persons on the Oregon Occupational Safety and Health Division's mailing list established pursuant to ORS 183.335(7).

(3) By mailing or delivering a copy of the Notice to any person upon request; and

(4) By mailing copies of the Notice to persons that may have an interest in the subject matter of the proposal, and to organizations and publications that may provide notice to persons who may have an interest, such as the following, depending on the subject matter of the proposal:

(a) Workers' Compensation Insurers;

(b) Self-Insured Employers;

(c) News Organizations;

(d) Labor Unions;

(e) Employer Groups and Associations;

(f) Interested Parties;

(g) Employers and Employees.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: OSHA 9-1991, f. & cert. ef. 4-25-91; OSHA 6-1994, f. & cert. ef. 9-30-94; OSHA 7-1999, f. & cert. ef. 7-15-99

General Information
437-001-0005

Authority and Applicability of Rules

(1) These rules are promulgated under the Director's authority contained in ORS 654.025(2) and 656.726(3).

(2) Adoption Procedures: These rules for the Administration of the Oregon Safe Employment Act (OAR 437, Division 1) are adopted in accordance with ORS Chapter 183 and the Director's Rules of Practice and Procedure Applicable to Rule Making Functions.

(3) History: Prior "Rules for the Administration of the Oregon Safe Employment Act" (OAR Chapter 436, Division 46, OAR 436-046-0005 through 436-046-0750) were first adopted by WCB Admin. Order 19-1974; filed 6-5-74; effective 7-1-74. Amendments were made by:

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 33-1974, f. 9-5-74, ef. 9-26-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 7-1979, f. 8-20-79, ef. 9-1-79; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; WCD 12-1982, f. 6-28-82, ef. 8-1-82; WCD 3-1983, f. 1-31-83, ef. 2-1-83; WCD 9-1983, f. 11-15-83, ef. 11-15-83; WCD 2-1984, f. 3-2-84, ef. 3-15-84; WCD 12-1984, f. 9-20-84, ef. 11-1-84; WCD 9-1986, f. 10-7-86, ef. 12-1-86; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 5-1988, f. 5-16-88, ef. 5-16-88; APD 7-1988, f. 6-17-88, cert. ef. 7-1-74; OSHA 10-1990(Temp), f. & cert. ef. 5-31-90; OSHA 24-1990, f. & cert. ef. 10-10-90; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92

437-001-0010

Purpose and Scope of Rules

(1) These rules provide procedures by which the Division shall implement and enforce the Director's authority and responsibilities under the Act.

(2) The Director adopts OAR Chapter 437, Division 1, to assure, as far as possible, safe and healthful working conditions for every employee in Oregon, to preserve our human resources and to reduce the substantial burden which is created by occupational injury and disease.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 10-1990(Temp), f. & cert. ef. 5-31-90; OSHA 24-1990, f. & cert. ef. 10-10-90; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92

437-001-0015

Definitions

The following definitions shall apply to OAR 437, unless the context requires otherwise:

(1) Abatement -- Action by an employer to comply with a cited violation of the Oregon Safe Employment Act.

(2) Accepted Disabling Claims -- Claims accepted for disabling occupational injuries or illnesses only. A disabling injury or illness entitles the worker to compensation for disability or fatality. This type of claim excludes temporary total disability suffered during the first three calendar days after the employee leaves work as a result of the injury unless the worker is an inpatient in a hospital.

(3) Accepted Disabling Claims Rate -- The ratio of accepted disabling claims to annual average employment, times 100. Claims and employment figures are based upon the best knowledge of the Department at the time the rate is calculated (ADCR = Number of claims times 100 divided by the number of employees).

(4) Act -- The Oregon Safe Employment Act (ORS 654.001 to 654.295, 654.750 to 654.780, and 654.991).

(5) Administrator -- The Administrator of the Oregon Occupational Safety and Health Division (OR-OSHA).

(6) Affected employee -- An employee who, in the course and scope of employment, may be or may have been exposed to a condition or practice described in a citation, order, application for an extension date or variance.

(7) Agent of the employer -- The manager, superintendent, foreperson or other person in charge or control of all or part of the place of employment.

(8) Appeal -- A written request for a hearing in which to contest a citation, notice or order issued by the Division. Unless the context otherwise requires, any writing which clearly contests, objects to or seeks relief from a Division citation, notice or order shall be construed as an appeal.

(9) Audiometric Zero -- The lowest sound pressure level that the average, young adult with normal hearing can hear.

(10) Board -- The Workers' Compensation Board created by ORS 656.712.

(11) Catastrophe -- An accident in which two or more employees are fatally injured, or three or more employees are admitted to a hospital or an equivalent medical facility.

(12) Citation -- A document issued by the Division pursuant to ORS 654.071 to cite a violation. A citation may include a notice of penalty and a correction order.

(13) Complaint -- A written or oral report from an employee, employee representative or other person that an occupational safety or health violation may exist at a place of employment. A complaint may be classified as one of the following:

(a) Imminent danger;

(b) Serious;

(c) Other than serious.

(14) Compliance Officer -- A designated Division employee whose responsibility is to conduct inspections or investigations to identify possible violations and hazards and to propose citations, penalties and correction dates, and to assist employers and employees with information to correct violations and hazards.

(15) Comprehensive Consultation -- is a consultation to cover the entire establishment and entails a physical hazard assessment evaluation, reviews of records, written programs and the employer's illness and injury prevention plan. Comprehensive consultations include a written report by the provider including findings, recommendations, and the guidance necessary to resolve the problems noted in the report.

(16) Consultant -- A designated Division employee whose responsibility is to provide a full range of occupational safety and health assistance including, but not limited to, providing employers, employees and other agency staff with information, advice and recommendations on maintaining safe employment or a place of employment; on correcting violations or hazards; and on applicable occupational safety and health rules, techniques, devices, methods, practices and development of safety and health programs.

(17) Correction order -- A written Division order which directs a person to stop a violation within a given period of time. The term also includes a Red Warning Notice issued pursuant to OAR 437-001-0096.

(18) Days Away, Restricted, or Transferred (DART) -- The number of lost workday injury and illness cases experienced by 100 full-time workers (DART rate = Number of lost workday cases times 200,000 divided by the number of employee hours worked).

(19) Decibel (dB) -- Unit of measurement of sound level. For purposes of this rule, decibels refer to the combined average of the readings at 2000, 3000, and 4000 Hz on the audiogram.

(20) Department -- The Department of Consumer and Business Services.

(21) Director -- The Director of the Department of Consumer and Business Services, or the Director's designee.

(22) Division -- The Oregon Occupational Safety and Health (OR-OSHA) Division of the Department of Consumer and Business Services.

(23) Emphasis Program -- A special program that targets Division activity to industries that, according to national or state data, have a high potential for serious injuries or illnesses.

(24) Employee -- Any individual who is currently employed or formerly employed, including a minor whether lawfully or unlawfully employed, who engages to furnish services for a remuneration, financial or otherwise, subject to the direction and control of an employer, and includes salaried, elected and appointed officials of the state, state agencies, counties, cities, school districts and other public corporations, or any individual who is provided with workers compensation coverage as a subject worker pursuant to ORS Chapter 656, whether by operation of law or by election.

(25) Employee exposure record -- A record of monitoring or measuring which contains a qualitative or quantitative information indicative of employee exposures to toxic materials or harmful physical agents. This includes both individual exposure records and general research or statistical studies based on information collected from exposure records.

(26) Employee medical record -- A record which contains information concerning the health status of an employee or employees exposed or potentially exposed to toxic materials or harmful physical agents. These records may include, but are not limited to:

(a) The results of medical examinations and tests;

(b) Any opinions or recommendations of a physician or other health professional concerning the health of an employee or employees; and

(c) Any employee medical complaints relating to workplace exposure. Employee medical records include both individual medical records and general research or statistical studies based on information collected from medical records.

(27) Employee representative -- A bargaining unit representative, or an individual selected by employees, who serves as their spokesperson.

(28) Employer -- Any person who has one or more employees, or any sole proprietor or member of a partnership who elects workers compensation coverage as a subject worker pursuant to ORS 656.128.

(29) Employer representative -- An individual selected by the employer, to serve as spokesperson or, in the absence of a selected spokesperson, the person in charge of the place of employment at the time of the inspection.

(30) Environmental Exposure Sampling -- Sampling of the work place environment, performed for a variety of reasons including, identification of contaminants present and their sources, determination of worker exposures and checking the effectiveness of controls.

(31) Establishment -- An establishment is a single physical location doing business or offering services or with industrial operations. For activities where employees do not work at a single physical location, such as construction; transportation; communications, electric, gas and sanitary services; and similar operations, the establishment is the main or branch offices, terminals, stations, etc. that either supervise such activities or are the base from which personnel carry out these activities.

(a) One location/multiple establishments. Normally, one business location has only one establishment. Under limited conditions, two or more separate businesses that share a single location are separate establishments. An employer may divide one location into two or more establishments only when:

(A) Each of the establishments represents a distinctly separate business;

(B) Each business is engaged in a different economic activity;

(C) No one industry description in the Standard Industrial Classification Manual (1987) applies to the joint activities of the establishments; and

(D) Separate reports are routinely prepared for each establishment on the number of employees, their wages and salaries, sales or receipts, and other business information. For example, if an employer operates a construction company at the same location as a lumber yard, each business can be a separate establishment.

(b) Multiple locations/one establishment. Only under certain conditions. An employer may combine two or more physical locations into a single establishment only when:

(A) The employer operates the locations as a single business operation under common management;

(B) The locations are all near each other; and

(C) The employer keeps one set of business records for all the locations, such as records on the number of employees, their wages and salaries, sales or receipts, and other kinds of business information. For example, one manufacturing establishment might include the main plant, a warehouse a few blocks away, and an administrative services building across the street.

(c) Telecommuting from home. For employees who telecommute from home, the employee's home is not a business establishment, do not keep a separate 300 Log. Link employees who telecommute to one of your establishments under 437-001-0700(15)(c).

(32) Farm operation -- Any operation involved in the growing or harvesting of crops or the raising of livestock or poultry.

(33) Filed -- A document shall be deemed to have been filed on the date of postmark if mailed or on the date of receipt if transmitted to OR-OSHA, DCBS, or the WCB by other means.

(34) First aid -- Any one-time treatment and subsequent observation of minor scratches, cuts, burns, splinters or similar injuries which do not ordinarily require medical care. Such one-time treatment and subsequent observation is considered first aid even though provided by a physician or registered professional personnel.

(35) Fixed place of employment -- The entire facility maintained by an employer at one general location, regardless of the size or number of departments or buildings in the facility. For the purpose of determining repeat violations fixed place of employment includes employers or owners engaged in construction activity who will be at a single worksite continuously for more than 24 months.

(36) Hazard -- A condition, practice or act which could result in an injury or illness to an employee.

(37) Health Hazard -- Health hazards mean carcinogens, lead, silica, toxic metals and fumes, vapors or gases, toxic or highly corrosive liquids or chemicals, chemical sensitizers, pesticides, fungicides, solvents, biological agents and harmful physical stress agents.

(38) Imminent danger -- A condition, practice or act which exists in any place of employment and could reasonably be expected to cause death or serious physical harm immediately.

(39) Injury or illness -- An injury or illness is an abnormal condition or disorder. Injuries include cases such as, but not limited to, a cut, fracture, sprain, or amputation. Illnesses include both acute and chronic illnesses, such as, but not limited to, a skin disease, respiratory disorder, or poisoning. (Note: Record injuries and illnesses only if they are new, work-related cases that meet one or more of the recording criteria.)

(40) Inspection -- An official examination of a place of employment by a Compliance Officer to determine if an employer is in compliance with the Act. An inspection may be classified as:

(a) Programmed.

(A) Routine inspection -- An inspection of a place of employment which is made based principally on that place of employment's record of workers' compensation claims or Standard Industrial Classification and number of employees;

(i) Emphasis inspection -- An inspection made in response to a national or state Emphasis Program.

(B) Periodic inspection -- An inspection made because of a time-related factor, including, but not limited to, intermittent or seasonal employment activity;

(C) Area inspection -- An inspection made because of a geographic factor;

(D) Random inspection -- An inspection scheduled and conducted pursuant to written neutral administrative standards.

(b) Unprogrammed.

(A) Follow-up inspection -- An inspection made to determine if a previously cited violation has been corrected or after a request for an extension, a stay of correction time or a variance has been denied;

(B) Complaint inspection -- An inspection made in response to a complaint;

(C) Accident investigation -- A systematic appraisal of an accident sequence to determine causal factors, corrective actions and preventative measures; and

(D) Referral inspection -- An inspection made in response to a referral.

(41) Letter of Corrective Action -- A letter stating the corrective action(s) taken by the employer to comply with the violation(s) that were not corrected at the time of the inspection.

(42) Lost workdays -- The actual number of days after, but not including, the day of injury or illness during which the employee would have worked, but could not perform all or any part of his/her normal assignment during all or any part of the employee's next regular workday or shift because of the occupational injury or illness.

(43) Lost Workday Cases Incidence Rate (LWDCIR) (Also see DART) -- The number of lost workday injury and illness cases experienced by 100 full-time workers (LWDCIR = Number of lost workday cases times 200,000 divided by the number of employee hours worked).

(44) Medical treatment -- Treatment administered by a physician or by registered professional personnel under the standing orders of a physician. Medical treatment does not include first aid treatment even though provided by a physician or registered professional personnel, nor does it include treatment ordinarily considered diagnostic or preventative in nature.

(45) Owner -- Every person having ownership, control or custody of any place of employment or of the construction, repair or maintenance of any place of employment.

(46) Person -- One or more individuals, legal representatives, partnerships, joint ventures, associations, corporations (whether or not organized for profit), business trusts, or any organized group of persons, and includes the state, state agencies, counties, municipal corporations, school districts, and other public corporations or subdivisions.

(47) Personal exposure samples -- Measurement of contaminants or physical agents to characterize the environment in the breathing or hearing zone of individual workers in order to evaluate their specific work exposures. Personal samplers are placed on the worker to obtain either one continuous sample covering a portion of the workday or consecutive samples covering a stated time period.

(48) Physician or Other Licensed Health Care Professional -- A physician or other licensed health care professional is an individual whose legally permitted scope of practice (i.e., license, registration, or certification) allows them to independently perform, or be delegated the responsibility to perform, the activities described by this regulation.

(49) Place of employment -- Includes every place, whether fixed or movable, whether indoors or out or underground, and the premises and structures appurtenant thereto, where either temporarily or permanently an employee works or is intended to work and every place where there is carried on any process, operation or activity related, either directly or indirectly, to an employer's industry, trade, business or occupation, including a labor camp provided by an employer for his/her employees or by another person engaged in providing living quarters or shelters for employees, but place of employment does not include any place where the only employment involves nonsubject workers employed in or about a private home. Any corporate farm where the only employment involves the farm's family members, including parents, spouses, sisters, brothers, daughters, sons, daughters-in-law, sons-in-law, nieces, nephews or grandchildren.

(50) Record -- Any recorded information regardless of its physical form or character.

(51) Recordable occupational injuries or illnesses -- Any occupational injuries or illnesses which result in:

(a) Fatalities, regardless of the time between the injury and death, or the length of the illness;

(b) Lost workday cases, other than fatalities, that prevent the employee from performing his/her normal assignment during any part of the employee's next regular, or any subsequent workday or shift; or

(c) Non-fatal cases, without lost workdays which result in transfer to another job or termination of employment, or require medical treatment (other than first aid), or involve loss of consciousness or restriction of work or motion. This category also includes any diagnosed occupational illnesses which are reported to the employer but are not classified as fatalities or lost workday cases.

(52) Referral -- A notification made to the responsible agency of safety or health violations observed by a Division employee, other federal, state or local government representatives, or the media.

(53) Rule -- Any agency directive, standard, regulation or statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedures or practice requirements of the agency and is adopted according to the Administrative Procedure Act. The term includes the amendment or repeal of a prior rule, but does not include, unless a hearing is required by statute, internal management directives, regulations or statements which do not substantially affect the interests of the public.

(54) Scheduling List -- An electronic or paper list of places of employment or employers scheduled for inspection. Lists can be in electronic form, paper form or both.

(55) Serious physical harm:

(a) Injuries that could shorten life or significantly reduce physical or mental efficiency by inhibiting, either temporarily or permanently, the normal function of a part of the body. Examples of such injuries are amputations, fractures (both simple and compound) of bones, cuts involving significant bleeding or extensive suturing, disabling burns, concussions, internal injuries, and other cases of comparable severity.

(b) Illnesses that could shorten life or significantly reduce physical or mental efficiency by inhibiting, either temporarily or permanently, the normal function of a part of the body, even though the effects may be cured by halting exposure to the cause or by medical treatment. Examples of such illnesses are cancer, pneumoconiosis, narcosis, or occupational infections (caused by biological agents), and other cases of comparable severity.

(56) Standard Industrial Classification (SIC) -- A classification system developed by the Office of Statistical Standards, Executive Office of the President/Office of Management and Budget, for use in classifying establishments by the type of activity in which they are engaged. Each establishment is assigned an industry code for its major activity, which is determined by the value of receipts or revenue for services rendered or products produced, or in some cases by the employment or payroll. The 1987 edition of the SIC manual is used for coding.

(57) Standard Threshold Shift (STS) -- A change in hearing threshold relative to the baseline audiogram of an average of 10 dB or more in either ear.

(58) Substantial failure to comply -- When an employer engaged in the production of crops intended for human consumption fails to provide acceptable and accessible toilet facilities, handwashing facilities or drinking water, and that failure exposes affected workers to a serious hazard likely to result in an injury or illness.

(59) Suspended penalty -- A penalty which is determined but not assessed.

(60) Variance -- The written authority given by the Division to an employer permitting the use of a specific alternative means or method to comply with the intent of a rule. Specific types of variances are:

(a) Permanent -- A variance that remains in effect until modified or revoked in accordance with OAR 437-001-0430;

(b) Temporary -- A variance granted for a stated period of time to permit the employer to achieve compliance with a new rule;

(c) Research -- A variance granted for a stated period of time to allow industrial or governmental research designed to demonstrate or validate new and improved safety or health techniques or products; and

(d) Interim order -- The temporary authority for an employer to use an alternative means or method by which the employer effectively safeguards the safety and health of employees until final action can be taken on the variance request.

(61) Violation -- The breach of a person's duty to comply with an Oregon occupational safety or health statute, regulation, rule, standard or order.

(a) Specific classifications of violations are:

(A) Serious violation -- A violation in which there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations or processes which have been adopted or are in use in a place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation;

(B) Other than serious violation -- A violation which is other than a serious or minimal violation; and

(C) Minimal violation -- A violation which does not have a direct or immediate relationship to the safety or health of employees.

(b) Specific types of the above classifications are:

(A) Willful violation -- a violation that is committed knowingly by an employer or supervisory employee who, having a free will or choice, intentionally or knowingly disobeys or recklessly disregards the requirements of a statute, regulation, rule, standard or order.

(B) Unabated violation -- A violation that has not been fully corrected by the date ordered.

(C) Repeat violation:

(i) An employer's second or subsequent violation of the requirements of the same statute, regulation, rule, standard or order.

(ii) Subsequent violations shall not be considered to be a repeat when more than 36 months have elapsed and the violation has not reoccurred.

(iii) In these rules, Repeat, Repeated and Repeatedly are used as synonyms.

(D) First-instance violation -- An employer's first violation of a particular statute, regulation, rule, standard or order.

(E) Egregious -- Those conditions which normally constitute a flagrant violation of the OSEAct or OR-OSHA standards or regulations such that each instance of the violation is cited separately.

(c) Combined violation -- Multiple violations of the same statute, regulation, rule, standard or order within an establishment which have been combined as one violation to indicate an overall lack of compliance with a safety or health statute, regulation, rule, standard or order.

(d) Grouped violation -- Multiple violations of different statutes, regulations, rules, standards or orders, within an establishment which have been combined as one violation to indicate an increase in the severity of the violation.

Stat. Auth.: ORS 654.025(2) & 656.726(3)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD , 7-1979, f. 8-20-79, ef. 9-1-79; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; WCD 9-1983, f. & ef. 11-15-83; WCD 2-1984, f. 3-2-84, ef. 3-15-84; WCD 12-1984, f. 9-20-84, ef. 11-1-84; WCD 9-1986, f. 10-7-86, ef. 12-1-86; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 10-1990(Temp), f. & cert. ef. 5-31-90; OSHA 24-1990, F. & cert. ef. 10-10-90; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 6-1994, f. & cert. ef. 9-30-94; OSHA 2-1996, f. & cert. ef. 6-13-96; OSHA 5-1998, f. & cert. ef. 10-15-98; OSHA 7-1999, f. & cert. ef. 7-15-99; OSHA 11-1999(Temp), f. & cert. ef. 10-20-99 thru 4-14-00; OSHA 4-2000, f. 4-14-00, cert. ef. 4-15-00; OSHA 11-2001, f. 9-14-01, cert. ef. 1-1-02; OSHA 7-2002, f. & cert. ef. 11-15-02; OSHA 6-2003, f. & cert. ef. 11-26-03

437-001-0020

Authority to Administer

(1) The Administrator is hereby granted authority to do whatever is reasonably necessary or incidental to accomplish the purposes of the act and these rules.

(2) The Administrator shall administer the Voluntary Compliance Program separately from the enforcement activities. The Voluntary Compliance Program includes but is not limited to, education, consultations, demonstration programs and research.

(3) The Administrator shall name employees or classifications of employees who shall have authority to carry out the voluntary compliance and enforcement provisions of the Oregon Safe Employment Act.

(4) The official acts of the Administrator in administering and enforcing the Oregon Safe Employment Act, and the acts of those designated by the Administrator, shall be considered the official acts of the Director.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295

His.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0025

Liberal Construction

The Act, other rules adopted thereunder, and these rules shall be liberally construed to accomplish the preventative purposes expressed in the Act.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0030

Use of Gender and Number

For the purpose of these rules, each gender includes the other gender, the singular includes the plural and the plural includes the singular.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0035

Occupational Safety and Health Rules

(1) The Division shall propose occupational safety and health rules for adoption by the Director. Proposed rules shall be:

(a) Reasonable;

(b) Mandatory;

(c) Designed to protect the life, safety and health of employees; and

(d) At least as effective as occupational safety and health rules adopted by the U.S. Department of Labor.

(2) In proposing rules for adoption, the Division may consider recommendations from national standards-setting organizations, the U.S. Department of Labor, National Institute of Occupational Safety and Health (NIOSH), Centers for Disease Control (CDC), employers, employees, employee representatives and the Division's occupational safety and health experience.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0045

Adoption, Amendment or Repeal of Rules

(1) Rules will be adopted, amended or repealed in accordance with ORS Chapter 183 and the Director's rules of practice and procedure applicable to rule-making functions.

(2) Any person may request the adoption, amendment or repeal of a rule.

(3) A request for adoption, amendment or repeal of a rule shall:

(a) Be in writing, addressed to the Administrator, OR-OSHA Division, Labor and Industries Building, Salem, Oregon 97310;

(b) Identify the rule proposed for adoption, amendment or repeal and include reasons for the change.

(4) Upon receipt of the request the Division shall within 30 days, either deny the request or initiate rule-making proceedings.

(5) If the request to adopt, amend or repeal a rule is denied, the Division shall state its reasons for the denial in writing. A copy shall be mailed to the person making the request and all other persons upon whom a copy of the request was served.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0047

Voluntary Compliance Program, General

(1) The Division shall provide a coordinated program to encourage voluntary compliance with occupational health and safety laws, rules and codes and to promote more effective workplace health and safety programs.

(2) The program shall be designed to assist employers achieve voluntary compliance and shall be administered to preclude issuance of citations and penalties except when an employer fails to correct serious violations identified.

(3) The program shall include but is not limited to:

(a) Health and safety consultative services;

(b) Worker and employer training and education;

(c) Research projects including: Causes and prevention of industrial accidents and diseases; trends demonstrating the need for licensing, certification, or need or revised rules;

(d) Demonstration projects utilizing new or innovative processes or procedures to assist workers and employers in preventing occupational injury or disease, whatever the cause;

(e) Publication and general distribution of training and accident prevention materials.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0050

Enforcement Program, General

The Division shall provide an effective program to enforce statutes, regulations, rules, standards or orders for the protection of life, safety and health of employees. This program shall include, but is not limited to:

(1) The inspection of places of employment;

(2) The investigation of industrial accidents, fatalities or catastrophes;

(3) Issuing citations for violations;

(4) Identifying safety and health hazards which may or may not be violations and bringing them to the attention of employers and employees;

(5) Issuing reasonable correction orders;

(6) Assisting employers and employees in safety and health matters;

(7) Assessing and collecting civil monetary penalties for violations;

(8) Holding informal conferences with employers or employees to discuss citations, penalties or correction orders and other safety and health matters without limiting or extending the employer's appeal rights; and

(9) Granting or denying extensions of the times set by correction orders.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0053

Preserving Physical Evidence at the Scene of an Accident

(1) Employers, their representatives, or others shall not disturb the scene of a fatality or catastrophe other than to conduct the rescue of injured persons or mitigate an imminent danger until authorized by the Administrator (or designee), or directed by a recognized law enforcement agency.

(2) In order to preserve physical evidence at the scene of a fatality or catastrophe, the Administrator is authorized to limit the number of employer representatives or employee representatives accompanying the compliance officer during the documentation of the scene. The employer representative and employee representative must be provided an opportunity to document the scene prior to disturbance or removal of physical evidence.

(3) If an employer, their representative or others disturb the scene of a fatality or catastrophe other than to conduct the rescue of injured person(s) or mitigate an imminent danger before authorized by the Administrator or directed by a recognized law enforcement agency, a minimum penalty of $200 may be assessed.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 7-1999, f. & cert. ef. 7-15-99

Inspections
437-001-0055

Priority of Inspections

Inspections shall be prioritized to predominantly focus enforcement activities upon places of employment reasonably believed to be the most unsafe. Inspections should be made according to the following priorities:

(1) Imminent danger -- An inspection shall be made as soon as possible after the Division becomes aware of the condition or practice.

(2) Fatality, catastrophe or accident -- An investigation may be made as soon as possible after the Division becomes aware of a fatality, catastrophe or accident.

(3) Complaint -- An inspection may be initiated when the Division receives a complaint and the nature of the information indicates the complaint's probable validity.

(4) Referral -- An inspection may be made if safety or health violations were observed by a Division employee or other federal, state or local governmental representative and the nature of the information indicates the referral's probable validity.

(5) Programmed Inspections -- An inspection may be made by following the provisions in OAR 437-001-0057.

(6) Follow-up -- An inspection:

(a) Shall be initiated when the employer requests removal of a Red Warning Notice; or

(b) Shall be initiated when a stay of correction or a variance has been denied; or

(c) May be initiated when an extension of time has been denied; or

(d) May be initiated when the Division believes the employer is not in compliance or to monitor progress towards correction of a violation; or

(e) May be initiated when the employer is issued a citation with a correction order for one or more serious violations.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 11-1999(Temp), f. & cert. ef. 10-20-99 thru 4-14-00; OSHA 4-2000, f. 4-14-00, cert. ef. 4-15-00

437-001-0057

Scheduling Inspections

The following rules are intended to predominantly focus enforcement activities on the places of employment that the director reasonably believes to be the most unsafe.

(1) The Division will schedule programmed inspections according to a priority system based on neutral administrative standards.

(2) The Division will identify the most hazardous industries and places of employment through information obtained from the Department of Consumer and Business Services claim and employer files, the Bureau of Labor Statistics Occupational Injury and Illness Survey, and knowledge of recognized safety and health hazards associated with certain processes. Health hazards include carcinogens, lead, silica, toxic metals and fumes, vapors or gases, toxic or highly corrosive liquids or chemicals, chemical sensitizers, pesticides, fungicides, solvents, harmful physical stress agents and biological agents.

(3) Scheduling lists will be provided by the Division to its field offices, at least on an annual basis.

(4) Scheduling of Fixed Places of Employment for Safety Inspections.

(a) The following scheduling lists are designed as an electronic scheduling system used by safety enforcement managers to schedule fixed places of employment for each compliance officer. The scheduling lists will be sorted by field office. Employers will be selected and placed on one of four lists based on the following criteria:

(A) List A -- Fixed places of employment, excluding agriculture, which have 11 or more employees. The following neutral administrative criteria will be used to place employers on this list:

(i) One or more accepted disabling claims in the first 12 of the previous 18 months; and

(ii) No comprehensive safety inspection within the previous 24 months. The employers on this list will be ranked using SIC, Violation History, Weighted Claims Rate, and Weighted Claims as described in subsection (b) of this section.

(B) List B -- Fixed places of employment, excluding agriculture, which have 10 or fewer employees. The following neutral administrative criteria will be used to place employers on this list:

(i) One or more accepted disabling claims in the first 12 of the previous 18 months; and

(ii) No comprehensive safety inspection within the previous 24 months. The employers on this list will be ranked using SIC, Violation History, Weighted Claims Rate, and Weighted Claims as described in subsection (b) of this section.

(C) List C -- Agriculture places of employment (SIC 01, 02, 0711, 0721, 0722, 0723, 0761, 0762, 0783, 0811) which have 11 or more employees. The following neutral administrative criteria will be used to place employers on this list:

(i) One or more accepted disabling claims in the first 12 of the previous 18 months; and

(ii) No comprehensive safety inspection within the previous 24 months. The employers on this list will be ranked using SIC, Violation History, Weighted Claims Rate, and Weighted Claims as described in subsection (b) of this section.

(D) List D -- Agriculture places of employment (SIC 01, 02, 0711, 0721, 0722, 0723, 0761, 0762, 0783, 0811) which have 10 or fewer employees. The following neutral administrative criteria will be used to place employers on this list:

(i) One or more accepted disabling claims in the first 12 of the previous 18 months; and

(ii) No comprehensive safety inspection within the previous 24 months. The employers on this list will be ranked using SIC, Violation History, Weighted Claims Rate, and Weighted Claims as described in subsection (b) of this section.

(b) Ranking Factors: The employers on scheduling lists A, B, C, and D are ranked using High Hazard SIC, Violation History, Weighted Claims Rate, and Weighted Claims Count. The rankings from each factor are combined to produce a score for each employer, and the employers are ranked by field office based on their score.

(A) High Hazard SIC: The High Hazard SIC ranking comes from the Bureau of Labor and Statistics (BLS) with employers in an industry ranked as number one by BLS receiving a ranking of one and employers in an industry ranked as 200 by BLS receiving a ranking of 200. Employers in a SIC not ranked by BLS receive a rank of 999. For Agriculture lists, all employers will receive the same ranking of 999 since Agriculture SIC's are not ranked by BLS.

(B) Violation History: Employers with a violation history will be assigned points for each violation on citations that have become a final order within the previous 36 months. Willful violations are assigned five points, failure to abate violations four points, repeat violations three points, serious violations two points, and other-than-serious violations one point. Points are added together with the employer having the most points receiving a ranking of one followed by the employer with the next highest points receiving a ranking of two, etc. Employers not inspected within 36 months are given a ranking of zero, which will put them at the top of this category.

(C) Weighted Claims Count: Selected Claims from the first 12 of the previous 18 months are assigned points based on the seriousness of the claim. These points are totaled for each employer. Employers are ranked on the total points with the employer having the most points receiving a rank of one, followed by the second highest weighted claims count receiving a ranking of two, etc.

(D) Weighted Claims Rate: Employers are ranked in this category with the highest weighted claims rate receiving a ranking of one, followed by the second highest weighted claims rate receiving a ranking of two, etc. The weighted claims count described in (C) above is used to determine the claims rate.

NOTE: The selected claims and the points assigned to the selected claims will be identified by the agency in a Program Directive.

(c) The Field Office Managers will provide each Compliance Officer a list of inspections that are assigned in descending order from lists A through D. The Compliance Officer will make a reasonable effort to inspect each employer on that list prior to receiving another list, however failure to inspect all employers on a list will not invalidate subsequent inspections. The Compliance Officer's list will generally be followed in descending order but may be inspected in any order to utilize the Compliance Officer's time efficiently.

(d) No more than one scheduled comprehensive safety inspection will be made at any particular fixed place of employment in any 24-month period unless the place of employment has five or more accepted disabling claims or has processes or operations which vary within the 24-month period.

(5) Scheduling of Non-Fixed Places of Employment for Safety Inspections.

(a) Construction and logging scheduling lists will be used by safety enforcement managers and compliance staff to focus enforcement efforts on employers with the most hazardous places of employment. Employers will be selected and placed on one of two lists based on the following criteria:

(A) Construction List -- The following neutral administrative criteria will be used to select and rank employers on this list: Construction employers which have one or more accepted disabling claims in the first 12 of the previous 18 months and are ranked in the top 500 construction employers. The employers on this list will be ranked statewide using Violation History, Weighted Claims Rate, and Weighted Claims Count as described in subsection (b) of this section. The 500 employers with the most points will be placed on a list.

(B) Logging List -- The following neutral administrative criteria will be used to select and rank employers on this list: Logging employers which have one or more accepted disabling claims in the first 12 of the previous 18 months and are ranked in the top 50 logging employers. The employers on this list will be ranked statewide using Violation History, Weighted Claims Rate, and Weighted Claims Count as described in subsection (b) of this section. The 50 employers with the most points will be placed on a list.

(b) Ranking Factors: Construction and logging employers are ranked using Violation History, Weighted Claims Rate, and Weighted Claims Count. The rankings from each factor are combined to produce a score for each employer, and the employers are ranked based on their score. The top 500 construction employers will be on one list and the top 50 logging employers will be on another list:

(A) Violation History: Employers with a violation history will be assigned points for each violation on citations that have become a final order within the previous 36 months. Willful violations are assigned five points, failure to abate violations four points, repeat violations three points, serious violations two points, and other-than-serious violations one point. An average points per citation will be determined with the employer having the most points receiving a ranking of one followed by the employer with the next highest points receiving a ranking of two, etc. Employers not inspected within 36 months are given a ranking of zero, which will put them at the top of this category.

(B) Weighted Claims Count: Selected Claims from the first 12 of the previous 18 months are assigned points based on the seriousness of the claim. These points are totaled for each employer. Employers are ranked on the total points with the employer having the most points receiving a rank of one, followed by the second highest weighted claims count receiving a ranking of two, etc.

(C) Weighted Claims Rate: Employers are ranked in this category with the highest weighted claims rate receiving a ranking of one, followed by the second highest weighted claims rate receiving a ranking of two, etc. Theweighted claims count described in (B) above is used to determine the claims rate. (continued)