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 2:308. Personal protective equipment.

 

      RELATES TO: KRS 338.051(3), 338.061, 29 C.F.R. 1910.132-1910.138

      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 occupational safety and health administrative regulations. 29 C.F.R. 1910.132 to 1910.138 and Appendices establish the federal requirements relating to personal protective equipment. This administrative regulation establishes personal protective equipment standards to be enforced by the Department of Workplace Standards[Office of Occupational Safety and Health] in general industry. EO-2008-472, effective June 16, 2008, established the Labor Cabinet and assigned to it all organizational entities associated with the former Department of Labor.

 

      Section 1. Definitions. (1) "C.F.R." means Code of Federal Regulations.

      (2) "Employee" is defined in KRS 338.015(2).

      (3) "Employer" is defined in KRS 338.015(1).

      (4) "Established federal standard" is defined in KRS 338.015(10).

      (5) "National consensus standard" is defined in KRS 338.015(9).

      (6) "Standard" is defined in KRS 338.015(3).

      (7) "U.S. Department of Labor" means Kentucky Labor Cabinet or[Kentucky Department of Labor or the U.S. Department of Labor.

 

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

      (1) 29 C.F.R. 1910.132 through 29 C.F.R. 1910.138, and Appendices, revised July 1, 2008[2007]; and

      (2) The amendment to 29 C.F.R. 1910.134[1916.132] published in the December 12, 2008[November 15, 2007], Federal Register, Volume 73, Number 240[72, Number 220 (72 Fed. Reg. 64428)].

 

J.R. GRAY, Chairman

      APPROVED BY AGENCY: May 19, 2009

      FILED WITH LRC: May 21, 2009 at 2 p.m.

      PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall be held on July 22, 2009 at 10:30 a.m., ET, 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 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 July 31, 2009. 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, health 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 in general industry to comply with the requirements of 29 C.F.R. Part 1910. Section 2 also updates the C.F.R. to July 1, 2008; and, establishes the amendment to 29 C.F.R. 1910.134, published in the December 12, 2008 Federal Register, Volume 73, Number 240, which clarifies language related to provision of personal protective equipment and training. 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. As a result of the final rule published in the December 12, 2008 Federal Register, 803 KAR 2:308 must be amended to include the adopted changes. OSHA is amending its standards to add language clarifying that the personal protective equipment (PPE) and training requirements impose a compliance duty to each and every employee covered by the standards and that noncompliance may expose the employer to liability on a per-employee basis. The final rule does not impose any new substantive requirements. The regulatory text clarifies that the duty to provide PPE of all types, including respirators, and training to employees is a duty owed to each employee covered by the requirement. This adds no new compliance burden; the nature of the employer’s duty to protect each employee is inherent in the existing provisions. To comply with existing PPE and training provisions, the employer must provide PPE to each employee who needs it and train each employee who must be informed of job hazards. This action is being taken in response to recent decisions of the Occupational Safety and Health Review Commission indicating that differences in wording among the various PPE and training provisions in OSHA safety and health standards affect the agency’s ability to treat an employer’s failure to provide PPE or training to each covered employee as a separate violation. Where an employer commits multiple violations of a single standard or regulation, OSHA either groups the violations and proposes a single penalty, or cites and proposes a penalty for each discrete violation. Although "grouping" is the more common method, OSHA proposes separate "per-instance" penalties in cases where the resulting heightened aggregate penalty is appropriate to deter flagrant violators and increase the impact of OSHA’s limited resources. The amendments add no new compliance obligations. Employers are not required to provide any new type of PPE or training, to provide PPE or training to any employee not already covered by the existing requirements, or to provide PPE or training in a different manner than that already required. The amendments simply clarify that the standards apply to each employee. Finally, this amendment updates this administrative regulation to meet KRS Chapter 13A considerations.

      (b) The necessity of this administrative regulation: Kentucky's Occupational Safety and Health 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 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: This administrative regulation, in Section 1, defines terms not found in the federal standard. Section 2 requires employers in general industry to comply with the requirements of 29 C.F.R. Part 1910. Section 2 also updates the C.F.R. to July 1, 2008; and, establishes the amendments to 29 C.F.R. 1910.134, published in the December 12, 2008 Federal Register, Volume 73, Number 240, which clarifies language related to provision of personal protective equipment and training.

      (b) The necessity of the amendment to this administrative regulation: Kentucky's Occupational Safety and Health 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 administrative regulation conforms to the content of the authorizing statutes of KRS 338.051 and 338.061.

      (d) How the amendment 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. Improved employee protection is likely to result from promulgation of this regulation because it maintains consistency with the federal requirement, providing all a clear understanding of the requirements.

      (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 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: OSHA believes that employers should already be implementing the requirements of the standard. This regulation does not add requirements of the employer; it merely adds wording to clarify the requirement of the regulation.

      (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): Because the regulation does not add compliance requirements and only clarifies confusing language in the regulation, no additional costs in paperwork or training are expected.

      (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): OSHA determined that with full compliance under the final rule, no future injuries or fatalities are expected to occur.

      (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 regulation.

      (b) On a continuing basis: There will be no cost on a continuing basis to implement this 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 will be used.

      (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. Pub.L. 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. Kentucky's Occupational Safety and Health 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.

      3. Minimum or uniform standards contained in the federal mandate. Kentucky's Occupational Safety and Health 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.

      4. Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate? This amendment does not impose stricter, additional, or different requirements or responsibilities than those required by the federal standards.

      5. Justification for the imposition of the stricter standard, or additional or different responsibilities or requirements. This amendment does not impose stricter, additional, or different requirements or responsibilities than those required by the federal standards.

 

FISCAL NOTE ON LOCAL GOVERNMENT

 

      1. Does this administrative regulation relate to any program, service, or requirements of a state or local government (including cities, counties, fire departments, or school districts)? Yes

      2. 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 that is covered by KRS 338 and engaged in general industry activities.

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

      4. 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? This amendment will not impose any cost. This amendment changes language in the regulation clarifying the requirements of employers as it relates to the provision of personal protective equipment and training.

      (d) How much will it cost to administer this program for subsequent years? This amendment will not impose any subsequent cost. This amendment changes language in the regulation clarifying the requirements of employers as it relates to the provision of personal protective equipment and training.

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

      Revenues (+/-): There will be no increase or decrease in local government revenues as a result of this amendment.

      Expenditures (+/-): There will be no increase or decrease in local government expenditures as a result of this amendment.

      Other explanation: N/A