LABOR CABINET

Department of Workplace Standards

Division of Occupational Safety and Health Compliance

Division of Occupational Safety and Health Education and Training

(Amendment)

 

      803 KAR 2:306. Occupational health and environmental controls.

 

      RELATES TO: KRS Chapter 338, 29 C.F.R. 1910.6, 1910.94-1910.98

      STATUTORY AUTHORITY: KRS 338.051(3), 338.061

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) requires the Kentucky Occupational Safety and Health Standards Board to adopt and promulgate occupational safety and health administrative regulations necessary to accomplish the purposes of KRS Chapter 338.[29 C.F.R. 1910.94-1910.98 establishes federal requirements relating to occupational noise exposure.] This administrative regulation establishes the occupational health and environmental control standards to be enforced by the Department of Workplace Standards in general industry.

 

      Section 1. Definitions. (1) "Act" means KRS Chapter 338.

      (2) "Assistant Secretary of Labor" means Secretary, Labor Cabinet, or Commissioner, Department of Workplace Standards, Labor Cabinet.

      (3) "C.F.R." means Code of Federal Regulations.

      (4) "Standard" means "occupational safety and health standard" as defined by KRS 338.015(3).

      (5) "U.S. Department of Labor" means Kentucky Labor Cabinet, U.S. 127 South, Frankfort, Kentucky 40601, or the U.S. Department of Labor.

 

      Section 2. Except as modified by the definitions in Section 1 of this administrative regulation and the requirements established in Section 3 of this administrative regulation, general industry shall comply with the following federal requirements published by the Office of the Federal Register, National Archives and the Records Services, General Services Administration:

      (1) 29 C.F.R. 1910.94-1910.98 and Appendices, revised July 1, 2013; and

      (2) The amendment to 29 C.F.R. 1910.97 published in the June 13, 2013 Federal Register, Volume 78, Number 114 and corrected and confirmed in the November 6, 2013 Federal Register, Volume 78, Number 215[2009; and

      (2) The amendment to 29 C.F.R. 1910.94 published in the September 9, 2009, Federal Register, Volume 74, Number 173].

 

      Section 3. Occupational Noise Exposure. (1) (a)The language relating to audiometric test requirements for occupational noise exposure in paragraph (b) of this subsection shall apply in lieu of 29 C.F.R. 1910.95(h)(1).

      (b) Audiometric tests shall be pure tone, air conduction, hearing threshold examinations with test frequencies including as a minimum 500, 1,000, 2,000, 3,000, 4,000, and 6,000 Hz. Testing at 8,000 Hz shall be included in the audiometric tests for employers using audiometers with that capacity and all audiometric tests shall include 8,000 Hz.

      (2)(a) The language relating to audiometric test requirements for occupational noise exposure in paragraph (b) of this subsection shall apply in lieu of 29 C.F.R. 1910.95(h)(4).

      (b) Audiometric examinations shall be administered in a room meeting the requirements listed in 29 C.F.R. 1910.95, Appendix D: Audiometric Test Rooms. If an audiometric test room is located in a mobile test van, background sound pressure level measurements shall be taken at each testing location.

      (3)(a) The language relating to audiometric test requirements for occupational noise exposure in paragraph (b) of this subsection shall apply in lieu of 29 C.F.R. 1910.95(h)(5)(ii).

      (b) Audiometer calibration shall be checked acoustically at least annually in accordance with subsection (7)(b) of this section: Acoustic Calibration of Audiometers.

      1. Test frequencies below 500 Hz and above 8,000 Hz may be omitted from this check.

      2. Deviations of fifteen (15) decibels or greater shall require an exhaustive calibration.

      (4)(a)The language relating to audiometric test requirements for occupational noise exposure in paragraph (b) of this subsection shall apply in lieu of 29 C.F.R. 1910.95(h)(5)(iii).

      (b) An exhaustive calibration shall be performed at least every two (2) years in accordance with sections 4.1.2; 4.1.3; 4.1.4.3; 4.2; 4.4.1; 4.4.2; 4.4.3; and 4.5 of the American National Standard Specification for Audiometers, S3.6-1969. Test frequencies below 500 Hz and above 8,000 Hz may be omitted from this calibration.

      (5)(a)The language relating to access to information and training materials requirements for occupational noise exposure in paragraph (b) of this subsection shall apply in lieu of 29 C.F.R. 1910.95(l)(1).

      (b) The employer shall make available to affected employees or their representatives copies of this standard and shall also post a notice of the availability of this standard in the workplace.

      (6)(a) The language relating to exemptions to the administrative regulation for occupational noise exposure requirements in paragraph (b) of this subsection shall apply in lieu of 29 C.F.R. 1910.95(o).

      (b) 29 C.F.R. 1910.95(c) through (n) and subsections (1) through (5) of this section shall not apply to employers engaged in oil and gas well drilling and servicing operations, agriculture, or construction.

      (7)(a) The language relating to acoustical calibration of audiometers for occupational noise exposure in paragraph (b) of this subsection shall apply in lieu of 29 C.F.R. 1910.95, Appendix E.

      (b) Acoustic Calibration of Audiometers.

      1. Subparagraphs 2 through 5 of this paragraph shall be mandatory.

      2. Audiometer calibration shall be checked acoustically, at least annually, according to the procedures established in subparagraphs 2 through 5 of this paragraph.

      a. The equipment necessary to perform these measurements shall be a sound level meter, octave-band filter set, and a National Bureau of Standards 9A coupler.

      b. In making these measurements, the accuracy of the calibrating equipment shall be sufficient to determine that the audiometer is within the tolerances permitted by American Standard Specification for Audiometers, S3.6-1969.

      3. Sound pressure output check.

      a. Place the earphone coupler over the microphone of the sound level meter and place the earphone on the coupler.

      b. Set the audiometer's hearing threshold level (HTL) dial to seventy (70) dB.

      c. Measure the sound pressure level of the tones that each test frequency from 500 Hz through 8,000 Hz for each earphone.

      d. At each frequency the readout on the sound level meter should correspond to the levels in Table E-1 or Table E-2 of this administrative regulation, as appropriate for the type of earphone, in the column entitled "sound level meter reading".

      4. Linearity check.

      a. With the earphone in place, set the frequency to 1,000 Hz and the HTL dial on the audiometer to seventy (70) dB.

      b. Measure the sound levels in the coupler at each ten (10) dB decrement from seventy (70) dB to ten (10) dB, noting the sound level meter reading at each setting.

      c. For each ten (10) dB decrement on the audiometer the sound level meter shall indicate a corresponding ten (10) dB decrease.

      d. This measurement may be made electrically with a voltmeter connected to the earphone terminals.

      5.a. Tolerances. If any of the measured sound levels deviate from the levels in Table E-1 or Table E-2 of this administrative regulation plus or minus three (3) dB at any test frequency between 500 and 3,000 Hz, four (4) dB at 4,000 Hz, or five (5) dB at 6,000 Hz and 8,000 Hz, the employer shall consider conducting an exhaustive calibration.

      b. The employer shall conduct an exhaustive calibration if the deviations are greater than ten (10) dB at any test frequency.

TABLE E-1 - REFERENCE THRESHOLD LEVELS FOR

TELEPHONICS-TDH-39 EARPHONES

Frequency, Hz

Reference threshold

level for TDH-39

earphones, dB

Sound level meter

level

meter reading dB

500

11.5

81.5

1000

7.07

77.0

2000

9.07

79.0

3000

10.0

80.0

4000

9.57

79.5

6000

15.5

85.5

8000

13.0

83.0

 

TABLE E-2 - REFERENCE THRESHOLD LEVELS FOR

TELEPHONICS-TDH-49 EARPHONES

Frequency, Hz

Reference threshold

level for TDH-49

earphones, dB

Sound level meter

level

meter reading dB

500

13.5

83.5

1000

7.5

77.5

2000

11.0

81.0

3000

9.5

79.5

4000

10.5

80.5

6000

13.5

83.5

8000

13.0

83.0

 

LARRY L. ROBERTS, Chairman

      APPROVED BY AGENCY: May 13, 2014

      FILED WITH LRC: May 14, 2014 at 11 a.m.

      PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall be held on June 25, 2014 at 10:30 a.m. (EDT) at the Labor Cabinet, 1047 US HWY 127 South, Suite 4, Frankfort, Kentucky. Individuals interested in being heard at this hearing shall notify this agency in writing five (5) working days prior to the hearing of their intent to attend. If no notification of intent to attend the hearing is received by that date, the hearing may be canceled. This hearing is open to the public. Any person who wishes to be heard will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to attend the public hearing, you may submit written comments on the proposed administrative regulation. Written comments shall be accepted until June 30, 2014. Send written notification of intent to be heard at the public hearing or written comments on the proposed administrative regulation to the contact person.

      CONTACT PERSON: Kristi Redmon, OSH Standards Specialist, Kentucky Department of Workplace Standards, 1047 U.S. HWY 127 South, Suite 4, Frankfort, Kentucky 40601, phone (502) 564-3504, fax (502) 564-1682.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact person: Kristi Redmon

      (1) Provide a brief summary of:

      (a) What this administrative regulation does: This administrative regulation, in Section 1, defines terms not found in the federal standard. Section 2 requires employers to comply with the requirements of 29 C.F.R. 1910. Section 2 also updates the C.F.R. to July 2013 and establishes the amendment to 29 C.F.R. 1910.97 published in the June 13, 2013 Federal Register, Volume 78, Number 114, which was corrected and confirmed in the November 6, 2013 Federal Register, Volume 78, Number 215. The Kentucky OSH Standards Board adopted the amendment on May 6, 2014. As a result of the adoption of the direct final rule 803 KAR 2:306 must be amended to include the adopted changes. With the June 13, 2013 direct final rule OSHA is updating its references to national consensus standards for signage. OSHA’s rule will update references to the American National Standards Institute (ANSI) standards within the rules for accident prevention signs and tags throughout the regulations. The direct final rule amendments specific to this KAR updates references to signage requirements that are incorporated within the non-ionizing radiation regulation permitting the employer to follow the old or the new consensus standard. Finally, this amendment updates this administrative regulation to meet KRS Chapter 13A considerations.

      (b) The necessity of this administrative regulation: The Kentucky OSH Program is mandated by 29 C.F.R. Parts 1952 and 1953 to be at least as effective as OSHA. Since OSHA’s amendment did not impose any additional or more stringent requirements on employers than the existing standard, the Kentucky Occupational Safety and Health Standards Board was not obligated to adopt this amendment. However, to promote consistency and provide employers and employees with a clear understanding of the requirements, the Kentucky Occupational Safety and Health Standards Board adopted this amendment.

      (c) How this administrative regulation conforms to the content of the authorizing statutes: This administrative regulation conforms to the content of the authorizing statutes of KRS Chapter 338.051 and 338.061.

      (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation will promote worker health and safety throughout Kentucky and keep the state program as effective as the federal program.

      (2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

      (a) How the amendment will change this existing administrative regulation: Section 2 requires employers to comply with the requirements of 29 C.F.R. 1910. Section 2 also updates the C.F.R. to July 2013 and establishes the amendments to 29 C.F.R. 1910.97 published in the June 13, 2013 Federal Register, Volume 78, Number 114, which was corrected and confirmed in the November 6, 2013 Federal Register, Volume 78, Number 215. The amendments to the regulation revise references to consensus standards incorporated by reference within OSHA standards permitting the employer to comply with either the old or updated reference to the national consensus standard. This amendment also updates this administrative regulation to meet KRS Chapter 13A considerations.

      (b) The necessity of the amendment to this administrative regulation: The Kentucky OSH Program is mandated by 29 C.F.R. Parts 1952 and 1953 to be at least as effective as OSHA. Since OSHA’s amendment did not impose any additional or more stringent requirements on employers than the existing standard, the Kentucky Occupational Safety and Health Standards Board was not obligated to adopt this amendment. However, to promote consistency and provide employers and employees with a clear understanding of the requirements, the Kentucky Occupational Safety and Health Standards Board adopted this amendment.

      (c) How the amendment conforms to the content of the authorizing statutes: This amendment conforms to the content of the authorizing statutes of KRS Chapter 338.051 and 338.061.

      (d) How the amendment will assist in the effective administration of the statutes: This amendment maintains consistency with the federal requirements, providing all a clear understanding of the requirements. This amendment promotes worker health and safety throughout Kentucky and keeps the state program as effective as the federal program.

      (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: This administrative regulation affects all employers in the Commonwealth engaged in general industry activities covered by KRS Chapter 338.

      (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including: (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: This amendment updates references to consensus standards incorporated by reference within OSHA’s standards. No additional compliance duties are expected from the revisions to 1910.97.

      (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): Because there are no additional compliance duties based on the revision, OSHA does not expect any costs associated with the amendment.

      (c) As a result of compliance, what benefits will accrue to the entities identified in question (3):

Improved employee protection is likely to result from the promulgation of this amendment due to the consistency with the federal requirement, providing all a clear understanding of the requirements.

      (5) Provide an estimate of how much it will cost to implement this administrative regulation:

      (a) Initially: There will be no cost to implement this specific amendment.

      (b) On a continuing basis: There will be no costs on a continuing basis to implement this amendment to the administrative regulation.

      (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: Current state and federal funding.

      (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment: There is neither an increase in fees nor an increase in funding necessary to implement these revisions.

      (8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees: This administrative regulation neither establishes any fees nor directly or indirectly increases any fees.

      (9) TIERING: Is tiering applied? Tiering is not applied. All employers covered by KRS Chapter 338 are treated equally.

 

FEDERAL MANDATE ANALYSIS COMPARISON

 

      1. Federal statute or regulation constituting the federal mandate.

Public Law 91-596, the Occupational Safety and Health Act of 1970, Section 18; 29 C.F.R. Part 1952; 29 C.F.R. Part 1953

      2. State compliance standards. The Kentucky OSH Program is mandated by 29 C.F.R. Parts 1952 and 1953 to be at least as effective as OSHA. Since OSHA’s amendment did not impose any additional or more stringent requirements on employers than the existing standard, the Kentucky Occupational Safety and Health Standards Board was not obligated to adopt this amendment. However, to promote consistency and provide employers and employees with a clear understanding of the requirements, the Kentucky Occupational Safety and Health Standards Board adopted this amendment on May 06, 2014.

      3. Minimum or uniform standards contained in the federal mandate. The Kentucky OSH Program is mandated by 29 C.F.R. Parts 1952 and 1953 to be at least as effective as OSHA. Since OSHA’s amendment did not impose any additional or more stringent requirements on employers than the existing standard, the Kentucky Occupational Safety and Health Standards Board was not obligated to adopt this amendment. However, to promote consistency and provide employers and employees with a clear understanding of the requirements, the Kentucky Occupational Safety and Health Standards Board adopted this amendment on May 06, 2014.

      4. Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate? Section 3 of this administrative regulation carries requirements which are stricter than those required by OSHA. This administrative regulation requires that audiometric tests and equipment include the 8,000 Hz. frequency, which the federal regulation does not. This provision has been in place since December 15, 1989. This current amendment to the regulation does not impose stricter, additional, or different requirements or responsibilities than those required by the federal mandate.

      5. Justification for the imposition of the stricter standard, or additional or different responsibilities or requirements. The provision in Section 3 of this administrative regulation which requires that audiometric tests and equipment include the 8,000 Hz. frequency has been in place since December 15, 1989. The purpose for the inclusion of the 8,000 Hz. frequency is to comply with the International Standards Organization (ISO) standard 6189-1983, "Acoustics -- Pure tone air conduction threshold audiometry for hearing conservation purposes." This current amendment to the regulation does not impose stricter, additional, or different requirements or responsibilities than those required by the federal standards.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

      1. What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? This administrative regulation will affect any unit, part, or division of local government covered by KRS 338 and engaged in general industry activities.

      2. Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 338.051, KRS 338.061, Public Law 91-596 84 STAT. 1590, 29 C.F.R. Parts 1952 and 1953.

      3. Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.

      (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? None.

      (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? None.

      (c) How much will it cost to administer this program for the first year? Because no additional compliance duties are required as a result of the revisions, no costs are associated with the amendment of this regulation.

      (d) How much will it cost to administer this program for subsequent years? There are no expected costs associated with the direct final rule updating references to a national consensus standard.

      Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

      Revenues (+/-): Unknown.

      Expenditures (+/-): Unknown.

      Other explanation: The specific amendment to this regulation is not expected to create any additional costs to the entities. No information was available specific to this state.