Employer seeks judicial review of a final order of the Workers’ Compensation Board that approved a citation by the Oregon Occupational Safety and Health Division (OR-OSHA) for violating 29 CFR section 1926.451(g)(l)(vii)— a rule that OR-OSHA has adopted by reference
The pertinent facts are neither extensive nor disputed. Employer contracted to construct a scaffold as part of a roof-replacement project for a business in Newberg. The scaffold platform consisted of sheets of plywood laid across and nailed to aluminum I-beams. After the roof project was completed, employer dismantled the scaffold. Employees removed the nails from the plywood, picked up the plywood sheets, and passed them to other employees to be taken away. One of the plywood sheets shifted off its supporting I-beam after the nails had been removed. An employee was standing on the sheet when it shifted; both he and the sheet fell 40 feet to the floor below. At the time of the accident, the employee was wearing a fall-protection harness but was not “tied off’ to anything; that is, the harness was not fastened to anything in a way that would have stopped the employee from falling to the ground.
OR-OSHA issued a citation to employer alleging that it had violated 29 CFR section 1926.451(g)(l)(vii), which provides that, for certain types of scaffolds, “each employee shall be protected by the use of personal fall arrest systems or guardrail systems ***.”
On review, employer renews its argument that 29 CFR section 1926.451(g)(2), not paragraph (g)(1), applies when employees are erecting or dismantling a scaffold. OR-OSHA responds that paragraph (g)(2) merely sets out the standard by which an employer must determine whether fall protection is feasible and safe during the erеcting and dismantling processes, but does not itself require that any feasible fall protection be used. Instead, OR-OSHA contends, it is paragraph (g)(1) that requires that fall protection actually be used.
The parties’ arguments raise the issue of the correct interpretation of 29 CFR section 1926.451(g)(1) and (2). 29 CFR section 1926.451 was enacted by the federal Occupational Safety and Health Administration (OSHA) in 1996 and adopted by OR-OSHA on March 12, 1997. Safety Standards for Scaffolds Used in the Construction Industry, 61 Fed Reg 46026 (Aug 30, 1996); OAR 437-003-0001(12)(b). In some cases involving federal safety rules that OR-OSHA has adopted by reference, we have looked to federal case law for guidance. OR-OSHA v. Moore Excavation, Inc.,
Generally speaking, we interpret rules by applying the same analytical framework that applies to the interpretation of statutes. That is, we consider the text of the rule and its context, including other portions of the rule and related laws, and the rule’s adoption history, State v. Teixeira,
The pertinent subsections of 29 CFR section 1926.451(g) provide:
“(g) Fall protection. (1) Each employee on a scaffold more than 10 feet (3.1 m) above a lower level shall be protected from falling to that lower level. Paragraphs (g)(l)(i) through (vii) of this section establish the types of fall protection to be provided to the employees on each type of scaffold. Paragraph (g)(2) of this section addresses fall protection for scaffold erectors and dismantlers.
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“(vii) For all scaffolds not otherwise specified in paragraphs (g)(l)(i) through (g)(l)(vi) of this section, each employee shall be protected by the use of personal fall arrest systems or guardrail systems meeting the requirements of paragraph (g)(4) of this section.
“(2) Effective September 2, 1997, the employer shall have a competent person determine the feasibility and safety of providing fall protection for employees erecting or dismantling supported scaffolds. Employers are required to provide fall protection for employees erecting or dismantling supported scaffolds where the installation and use of such protection is feasible and does not create a greater hazard.”
OR-OSHA contends that the first sentence of paragraph (g)(1) (“Each employee * * * shall be protected from falling * * *.”) imposes a blanket requirement that all employees be protected from falling, and that paragraph (g)(2) creates an exception to that requirement for scaffold erectors and dismantlers when fall protection is infeasible or creates a greater hazard. According to the agency, paragraph (g)(2) requires the employer to make the feasibility determination and to “provide” fall protection when it is feasible, but “nothing in paragraph (g)(2) requires the use of fall protection. That obligation is found in paragraph (g)(1).” (Emphasis in original.) Thus, in OR-OSHA’s view, subparagraphs (g)(l)(i) through (vii), setting out the types of fall protection to be provided, apply to all employees for whom protection must be provided, inсluding scaffold erectors and dismantlers.
We disagree. OR-OSHA’s interpretation of the rule overlooks its adoption history. Paragraph (g)(2) of the adopted rule did not become effective until September 2, 1997, whereas the rest of the rule took effect in Oregon six months earlier.
Before 29 CFR section 1926.451(g) was adopted, fall protection for scaffold erectors and dismantlers was not required, because it was historically perceived that such protection was not feasible. Safety Standards for Scaffolds Used in the Construction Industry, 61 Fed Reg at 46064. As originally proposed, the rule included an express exemption from fall protection for erectors and
Ultimately, OSHA determined that, given the “large variety of supported scaffolds” and the “infinite number of unique site conditions that could affect the feasibility or safety of providing fall protection,” neither a blanket exemption nor an absolute requirement of fall protection was appropriate for erectors and dismantlers. Id. at 46069. Rather, the agency concluded that employers needed “flexibility to address fall hazards for erectors and dismantlers on a site-specific basis.” Id. Accordingly, OSHA found that
“the determination of what fall protection is feasible and can be used safely at a given worksite should be made by a competent person at the worksite. The competent person will need to have the ability and knowledge to decide whether fall protection can be provided for erectors and dismantlers under the specific site conditions, and, if so, what measures are appropriate.”
Id. The agency revisеd the proposed rule to include paragraph (g)(2), but it deferred compliance with that paragraph for one year “to allow time for employers to develop and implement the appropriate procedures.” Id.
Given OSHA’s recognition that fall protection for scaffold erectors and dismantlers is not always feasible or safe, the upshot of the adoption history is that OSHA intended to delay implementation of the requirement that scaffold erectors and dismantlers use fall-protection systems. It is not plausible that OSHA intended to defer requiring employers to determine the feasibility and safety of providing fall protection and to provide such protection if it is feasible and safe (as required by paragraph (g)(2)) without also postponing the requirement that erectors and dismantlers use protective equipment. But that would be the result if, as OR-OSHA argues, the general provisions of (g)(1) applied to erectors and dismantlers, as that paragraph includes neither a provision delaying its effective date with respect to scaffold erectors and dismantlers nor a provision limiting the use of protective equipment to circumstances in which it is feasible and safe. Put differently, OR-OSHA’s interpretation of the rule would result in erectors and dismantlers having been required, when 29 CFR section 1926.451(g) was first adopted, to use fall protection systems without a feasibility and safety determination having first been made. That interpretation is not plausible, particularly when considered in light of the rule’s adoption history. Consequently, we do not defer to it.
We therefore interpret the rule ourselves. As we already have explained, the general fall-protection requirements set out in 29 CFR section 1926.451(g)(1) do not apply to employees who are erecting or dismantling scaffolding. Rather, we conclude that paragraph (g)(2) of the rule applies to those employees. We reject OR-OSHA’s contention that such an interpretation is itself implausible because it undermines worker-safety goals. That argument is based on the agency’s view that paragraph (g)(2) literally requires оnly that employers provide scaffolding erectors and dismantlers with fall protection when it is feasible and safe to do so, but does not require that the employees actually use the provided fall-protection equipment. We do not share that view. The
For purposes of this case, the bottom line is that the OR-OSHA rule adopting 29 CFR section 1926.451(g)(1) does not apply to employees who are erecting or dismantling scaffolds. As noted above, the parties stipulated that, if paragraph (g)(1) does not apply to those employees, the citation that OR-OSHA issued to employer should be dismissed. Accordingly, we reverse the ALJ’s order and remand with instructions to dismiss the citation.
Reversed and remanded.
Notes
In OAR 437-003-0001(12), OR-OSHA adopted by reference 29 CPR section 1926.451 and other federal safety rules related to scaffolding.
OR-OSHA initially alleged three violations based on the same accident, but it later withdrew two of the allegations.
Under OAR 438-085-0865(3), the ALJ’s order is deemed to he a final order of the Workers’ Comрensation Board and may be the subject of judicial review without further action by the board.
Employer cites several federal administrative decisions in support of its position that 29 CFR section 1926.451(g)(1) does not apply when employees are erecting or dismantling a scaffold. Those decisions either do not address the issue raised in this case, e.g., Bast Hatfield, Inc., 18 OSH Cаs (BNA) 1848 (1999), or assume without analysis that paragraph (g)(1) does not apply, e.g., Atlantic Heydt Corporation, 20 OSH Cas (BNA) 2147 (2004) (stating conclusorily that paragraph (g)(1) does not apply to employees erecting or dismantling a scaffold). Accordingly, our analysis does not rely on those decisions.
In their briefs, the parties assume that, if OR-OSHA’s interpretation of 29 CFR section 1926.451(g) is plausible, it is entitled to deferеnce. In support of that assumption, they cite case law stating the general proposition that courts defer to an agency’s plausible interpretation of its own rule. See, e.g., DeLeon, Inc. v. DHS,
As noted above, 29 CFR section 1926.451(g) generally took effect in 1996 for federal purposes and was adopted by OR-OSHA in March 1997. Because the effective date of paragraph (g)(2) is written into the federal rule, which OR-OSHA adopted in whole, that paragraph became effective for both state and federal purposes in September 1997.
As originally proposed, the opening сlause of what became paragraph (g)(1) provided, “Employees (except those erecting or dismantling scaffolds) on platforms more than 10 feet (3.0 m) above lower levels shall be protected from falling to those lower levels by the use of body belt/harness systems or Type I guardrail systems, except as follows!.]” Safety Standards for Scaffolds Used in the Construction Industry, 51 Fed Reg 42680, 42707 (proposed Nov 25, 1986). The five subparagraphs that followed equated to subparagraphs (g)(l)(i) through (v) of the final rule. Id.