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 2:421. Adoption of 29 C.F.R. Part 1926.950-968.

 

RELATES TO: KRS Chapter 338, 29 C.F.R. 1926.950 968

STATUTORY AUTHORITY: KRS 338.051(3), 338.061

NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.051(3) and 338.061 authorize the Kentucky Occupational Safety and Health Standards Board to promulgate occupational safety and health rules, administrative regulations, and standards. This[The following] administrative regulation contains those standards to be enforced by the Division of Occupational Safety and Health Compliance in the area of construction.

 

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

 

Section 2. Except as modified by the definitions established in Section 1 of this administrative regulation, the construction 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. 1926.950-1926.967, revised as of July 1, 2014;[2013; and]

(2) The amendments to Subpart V of 29 C.F.R. 1926 as published in the September 24, 2014 Federal Register, Volume 79, Number 185; and

(3) The amendments to Subpart V of 29 C.F.R. 1926 as published in the May 4, 2015 Federal Register, Volume 80, Number 85[April 11, 2014 Federal Register, Volume 79, Number 70].

 

LARRY L. ROBERTS, Chairman

APPROVED BY AGENCY: June 11, 2015

FILED WITH LRC: June 12, 2015 at 11 a.m.

PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall be held on July 21, 2015 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 July 31, 2015. 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 2014 and establishes the amendments to Subpart V of 1926 as published in the September 24, 2014 Federal Register, Volume 79, Number 185 and in the May 4, 2015 Federal Register, Volume 80, Number 85. The Kentucky OSH Standards Board adopted the September 24, 2014 Federal Register amendments on May 5, 2015 and the Chair adopted the May 4, 2015 amendments to ensure prompt promulgation. As a result of the adoption of the aforementioned amendments, 803 KAR 2:421 must be amended to include the adopted changes. With the September 24, 2014 Federal Register, OSHA is amending the electrical power generation, transmission, and distribution requirements by correcting errors made in the text of the regulation as well as some reference tables that were not caught when changing the rule in April of 2014. Because of confusing wording in the preamble, OSHA is amending the decision making flow chart in Appendix A-2 of 1910.269, which refers to the definition of a "qualified" employee under 1910.399 instead of the definition in 1910.269. There are also numerous technical and typographical errors to the footnotes in multiple tables throughout the regulation. The amendments in this Federal Register also correct the regulatory text in 1910.269 where the ladder strength requirement for portable ladders was inadvertently dropped. This federal register restores that requirement. There were also minor and typographical amendments made to the construction standards in Subpart V of 1926 to include correcting equations and removing erroneous references. The May 4, 2015 final rule creates new requirements of employers to protect employees entering permit required confined spaces in the construction industry. The requirements in this final rule are much like those that are already enforced for general industry employers under 803 KAR 2:309, with a few exceptions. Like the general industry rule, the construction rule, requires employers to develop written procedures, create and maintain a permit entry system, train employees on the aspects of their assigned roles, and prepare for the need for rescue. Unlike the general industry rule, the construction rule sets forth detailed requirements for sharing information as there are typically multiple employers on construction sites. The construction rule also requires the designation of a competent person, continuous atmospheric monitoring as well as continuous monitoring for engulfment hazards. Additionally, the construction industry final rule requires employer to completely cancel a permit when unexpected hazards are found in the confined space. There were also a few small changes to this construction industry rule to clarify some questions that had been raised with the general industry rule, this includes: clarifying alternate entry procedures, ensuring that third party rescue teams are available during entry, and defining terms that were not common to the general industry rule. The specific amendments within this KAR are related to the entry of enclosed spaces in the power transmission, and generation industry and the definition of this term. 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 May 4, 2015 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 November 4, 2015. The amendments related to the September 24, 2014 Federal Register amendments 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 maintain consistency with the federal program, the amendments to 803 KAR 2:421 were adopted by the Kentucky OSH Standards Board on May 05, 2015.

(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 Chapter338.051 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 2014 and establishes the amendments to Subpart V of 1926 as published in the September 24, 2014 Federal Register, Volume 79, Number 185 and in the May 4, 2015 Federal Register, Volume 80, Number 85. The amendments in the September 24, 2014 Federal Register simply correct mistakes made during the publishing of a final rule in April 2014 related to electrical power generation, transmission, and distribution. These corrections do not place additional compliance requirements on the employer. The amendments related to May 4, 2015 final rule, amend language adopted by this KAR related to entrance into enclosed spaces and the definition of an enclosed space. This amendment also updates the 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 May 4, 2015 final rule. Kentucky does not have an effective alternative to the final rule in its state-specific rule. Accordingly, in order to maintain its state program as effective as the federal program, Kentucky must incorporate the federal requirements by November 4, 2015. The amendments related to the September 24, 2014 Federal Register amendments 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 maintain consistency with the Federal program, the amendments to 803 KAR 2:421 were all adopted by the Kentucky OSH Standards Board on May 05, 2015.

(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: No additional compliance duties are expected from the revisions to Subpart V as set forth in the September 24, 2014 Federal Register. The amendments in the May 4, 2015 Federal Register specific to this KAR are not extensive and only clarify duties during entry into enclosed spaces which are specifically defined within Subpart V of 1926.

(b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): Because the amendments require no new occupational safety and health requirements, no costs are expected to be 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. 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 May 4, 2015 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 November 4, 2015. The amendments related to the September 24, 2014 Federal Register 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 2:421, related to the September 24, 2014 Federal Register were adopted by the board on May 5, 2015. The amendments in the May 4, 2014 Federal Register were adopted by the Kentucky OSH Board Chairperson to ensure promulgation of the regulation within six months.

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 May 4, 2015 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 November 4, 2015. The amendments related to the September 24, 2014 Federal Register 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 2:421, related to the September 24, 2014 Federal Register were adopted by the board on May 5, 2015. The amendments in the May 4, 2014 Federal Register were adopted by the Kentucky OSH Board Chairperson to ensure promulgation of the regulation within six months.

4. Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate? Neither the regulation nor the amendments to the regulation 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. Neither the regulation nor the amendments to the regulation 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 costs associated with either of the related-amendments of this regulation.

(d) How much will it cost to administer this program for subsequent years? There are no costs associated with either of the related-amendments of this regulation.

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.