THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
Health Division				)  Docket No:  SH91039 

	Plaintiff			)

		vs.			)  CITATION NO. C192502391


	Defendant			)  OPINION AND ORDER

	Pursuant to notice, the above matter came before Referee Black
for hearing in Eugene, Oregon, on May 24, 1991. Plaintiff was
represented by its attorney, Armonica Gilford, an Assistant
Attorney General. C. W. (Chuck) Selden. Employee Relations
Supervisor, participated on behalf of the employer. The
proceedings were reported by Paula Cotrell-Shirey. The record
closed at the conclusion of the hearing.


	Did the employer violate OAR 437-30-110(5) on or about November
15, 1990? The employer has appealed that portion of a citation
issued December 26, 1990, which imposed a $250 penalty in
connection with failure to give warnings at the time of the
felling of trees.

                      FINDINGS OF FACT

	Ron Cameron, an OROSHA Compliance Officer, made a general
inspection visit to the employer's timber cutting operations at
a site shown in topographical detail on Exhibit 10. Generally,
this was fairly steep, up and down terrain marked by draws and
ridges. Depending on whether one walked through recently
clear-cut areas or went into the standing timber, the land was
open and clear or thickly timbered with brush and second-growth
Douglas fir together with noncommercial species.

	The employer had three cutters at work together with a
supervisor. The cutters were properly equipped and supported.
When Cameron arrived, they were working at locations adequately
separated to provide a two tree length zone of safety between
themselves. At one point after the Compliance Officer had
arrived, two of the cutters were together in the woods briefly,
but no cutting was underway at the time.

	The trees being cut ranged in length up to about 80 feet.
Although the cutters were shutting off their chain saws prior to
the actual toppling of the trees, they were not calling out as
the trees were felled. Generally speaking, brush in the woods
was such that a cutter could not see "the tops of the trees
"that is, could not see the point where the end of the tree
would strike the ground and generally could not tell whether any
individuals were in the immediate area or not.

	The employer's work rules at such sites require that the
cutters be staked out to work at distances providing ample
separation. Thereafter, they are instructed not to enter each
other's work zones without first obtaining permission.

	"Vicinity" has been given to mean the same, two tree length
area required by OAR 437-80-110(1) by OROSHA in applying section
(5) of the same rule.

	On November 15, 1990, the Compliance Officer was not
prematurely following requirements of Proposed OAR 437-06-355.
The officer had been instructed not to cite timber cutting
employers if the faller is actually able to see where a tree is
going to hit, and there appear no complicating circumstances
such as unusual terrain or other hazards.

                     FINDING OF ULTIMATE FACT

	The employer's cutters did not fail to give timely warning to
fellow employees in the vicinity of trees being felled or fail
to ascertain that such warnings were heard by all employees
known to be in the vicinity.


OAR 437-80-110(5) provides:

	"Fallers shall give timely warning to buckers and other
employees in the vicinity of a tree about to be felled,
indicating the direction of fall and taking notice that such
employees are not only out of reach of the tree, but also clear
of logs, fallen trees, snags or other trees which may be struck
by the falling tree. Yallers shall make sure this warning has
been heard and heeded by all employees known to be in the
vicinity." (Emphasis supplied).

	OAR 437-80-110(1) requires a minimum safe distance between
timber cutters of two times the height of the trees being
felled. The rules in OAR 437 division 80 do not indicate whether
"vicinity" is the same as the two-lengths requirement. (See
Appendix 80A as per OAR 437-80-005). Compliance Officer
Cameron's practice has been to eroceed on the assumption that
"vicinity" meant the two-length minimum distance requirement.

	OAR 437-80-110(5) assumes that the cutter knows of the presence
of employees within the vicinity, that is, within a two-length
distance from his cutting location. The rule imposes a duty to
call out to such employees as are within this radius and to
anticipate any additional foreseeable consequences of felling
the tree with respect to employees known to be within this
radius. The rule does not state whether the cutter is excused
from calling out if he reasonably believes no one to be present
in the danger zone or whether there is any additional duty to
take notice that such employees are out of the reach of the
tree" when it is impossible to determine who is where because of
brush or other visual obstructions.

	A valid citation must be in conformance with the letter of the
safety regulation cited. Upon repeated reading of section (5), I
conclude that the citation cannot be upheld. The last sentence
of the rule is particularly telling in this regard. Perhaps the
rule could be construed to require that the cutter search the
area of potential fall in order to absolve himself from a duty
to call out. Read as a whole, however, the rule clearly
contemplates that the faller will know who is in his immediate
vicinity and is only required to call out if anyone is within
two tree lengths of his operations. Without further authority to
assist in interpreting this rule, I conclude that employees must
be "within the vicinity" to invoke the requirement that the
cutter call out. In the instant case, although it is conceded
that the cutters were not calling out, it is not established
that there were any employees within the two-length one at the
time felling was actually performed.

	The informal instructions given Compliance Officers with
respect to application of this rule are a good common sense

	The revision of this rule (see Exhibit 899; Proposed OAR
437-06-355) under proposed Forest Activities regulations
presently subject to the public hearing process highlights these
ambiguities. It solves the warning problem with a common sense
requirement that audible warnings are required unless smaller
trees are being cut and the cutter can see exactly what is going
on within the impact area. treatment of the problem consistent
with the rule as it exists long as one is not involved with the
brushy terrain exception.

	The referee does not rely upon the employer's work rules to
reach this result. Those rules, however, would tend to assure
that the rule, as written, is workable. The employer's work
rules would tend to keep cutters informed of the presence of
fellow employees within their vicinity and corresponding danger

	This ruling requires no change for the present. One trusts that
the employer is aware that, had this case been tried under the
proposed rule, it would clearly have been found in violation.


	THEREFORE, IT IS ORDERED THAT citation C192502391 is modified
to delete the violation of OAR 437-30-110(5) set out at item
number 1-1 together with the penalty therefor.

	NOTICE TO ALL PARTIES: You are entitled to judicial review of
this Order. Proceedings for review are to be instituted by
filing a petition in the Court of Appeals, Supreme Court
Building, Salem, Oregon 97310, within 60 days following the date
this Order is entered and served as shown hereon. The procedure
for such judicial review is prescribed by ORS 183.480 and ORS

	Entered at Eugene, Oregon JULY 1 1991 



				BY Bruce K. Black, REFEREE