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 2:400. Adoption of 29 C.F.R. 1926.1-6.

 

      RELATES TO: KRS Chapter 338

      STATUTORY AUTHORITY: KRS 338.051, 338.061

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051 and 338.061 require the Kentucky Occupational Safety and Health Standards Board to adopt and promulgate occupational safety and health rules, administrative regulations, and standards. The following administrative regulation contains those standards to be enforced by the Division of Occupational Safety and Health Compliance in the area of construction. The standards are arranged in numerical order in order to facilitate reference to 29 C.F.R. 1926.

 

      Section 1. Definitions. (1) "Assistant secretary" means Secretary, Labor Cabinet, or Commissioner, Department of Workplace Standards, Labor Cabinet.

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

      (3) "Employee" is defined by KRS 338.015(2).

      (4) "Employer" is defined by KRS 338.015(1).

      (5) "Standard" is defined by KRS 338.015(3).

 

      Section 2. The construction industry shall comply with the following federal regulation published by the Office of the Federal Register, National Archives and Records Administration:

      (1) 29 C.F.R. 1926.1- 6, revised July 1, 2013;

      (2) The revisions to 29 C.F.R. 1926.6 as 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; and

      (3) The revisions to 29 C.F.R. 1926.6 as published in the April 11, 2014 Federal Register, Volume 79, Number 70[2012; and

      (2) The revisions to 29 C.F.R. 1926.6, as published in the June 22, 2012 Federal Register, Volume 77, Number 121, corrected in the July 23, 2012 Federal Register, Volume 77, Number 141, and confirmed in the November 16, 2012 Federal Register, Volume 77, Number 222].

 

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. 1926. Section 2 also updates the C.F.R. to July 2013 and establishes the amendments to 29 C.F.R. 1926.6 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. Section 2 also establishes the amendments to 29 C.F.R. 1926.6 published in the April 11, 2014 Federal Register, Volume 79, Number 70. The Kentucky OSH Standards Board adopted these amendments on May 6, 2014. As a result of the adoption of the aforementioned direct final rules 803 KAR 2:400 must be amended to include the adopted changes. The April 11, 2014 OSHA final rule is removing and reserving outdated references to national consensus standards for electrical PPE. With the June 13, 2013 final rule OSHA is amending references to signage consensus standards to incorporate the most current version of the consensus standards. This revision will allow those required to have signage to follow the "old" version that is currently being enforced or the newest version that is being added to the regulation. 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. 29 C.F.R. 1953.5 requires state implementation of the new federal standard, or a more stringent amendment, within six (6) months of the April 11, 2014 final rule. Kentucky does not have an effective alternative to the final rule. Accordingly, in order to maintain its state program as effective as the federal program, Kentucky must incorporate the federal requirements by October 11, 2014. The amendments related to the June 13, 2013 rule 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, the amendments to 803 KAR 2:400, related to both final rules were all adopted by the Kentucky OSH Standards Board on May 06, 2014.

      (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. 1926. Section 2 also updates the C.F.R. to July 2013 and establishes the amendments to 29 C.F.R. 1926.6 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. Section 2 also establishes the amendments to 1926.6 published in the April 11, 2014 Federal Register, Volume 79, Number 70. This amendment related to this final rule is removing and reserving outdated references to national consensus standards for electrical PPE. 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. 29 C.F.R. 1953.5 requires state implementation of the new federal standard, or a more stringent amendment, within six (6) months of the April 11, 2014 final rule. Kentucky does not have an effective alternative to the final rule. Accordingly, in order to maintain its state program as effective as the federal program, Kentucky must incorporate the federal requirements by October 11, 2014. The amendments related to the June 13, 2013 direct final rule 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, the amendments to 803 KAR 2:400, related to both final rules, were all adopted by the Kentucky OSH Standards Board on May 06, 2014.

      (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 construction 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: The April 11, 2014 amendment does not require any additional compliance requirements by the employer. The June 13, 2013 direct final rule, does not require any additional compliance requirements with the update of incorporations by reference of national consensus standards for signage.

      (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3):There are no expected costs associated with the April 11, 2014 final rule removing and reserving outdated references to national consensus standards for electrical PPE. There are no expected costs associated with the June 13, 2013 direct final rule updating referenced to national consensus standards for signage.

      (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. 29 C.F.R. 1953.5 requires state implementation of the new federal standard, or a more stringent amendment, within six (6) months of the April 11, 2014 final rule. Kentucky does not have an effective alternative to the final rule. Accordingly, in order to maintain its state program as effective as the federal program, Kentucky must incorporate the federal requirements by October 11, 2014. The amendments related to the June 13, 2013 final rule 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, the amendments to 803 KAR 2:400 were adopted by the Kentucky OSH Standards Board 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. 29 C.F.R. 1953.5 requires state implementation of the new federal standard, or a more stringent amendment, within six (6) months of the April 11, 2014 final rule. Kentucky does not have an effective alternative to the final rule. Accordingly, in order to maintain its state program as effective as the federal program, Kentucky must incorporate the federal requirements by October 11, 2014. The amendments related to the June 13, 2014 final rule 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, the amendments to 803 KAR 2:400 were adopted by the Kentucky OSH Standards Board 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? The amendments to the regulation do not impose stricter requirements than those required by the federal mandate.

      5. Justification for the imposition of the stricter standard, or additional or different responsibilities or requirements. The amendments to the regulation do not impose stricter requirements than those required by the federal mandate.

 

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 construction 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? There are no expected costs associated with the April 11, 2014 final rule removing and reserving outdated references to national consensus standards for electrical PPE. Additionally, no cost are expected from the implementation of the June 13, 2012 direct final rule related to national consensus standards for signage.

      (d) How much will it cost to administer this program for subsequent years? No costs.

      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.