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[960].

 

      RELATES TO: KRS Chapter 338, 29 C.F.R. 1926.950 – 968[960]

      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. 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[and the requirements of subsection (1) of this section], 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)[Amend subparagraph 1926.950(c)(1)(i) to read as follows: "The employee is insulated or guarded from the energized part. Insulating gloves, as well as insulating sleeves if necessary, rated for the voltage involved shall be considered insulation of the employee from the energized part…";

      (2)] 29 C.F.R. 1926.950-1926.967[1926.960], revised as of July 1, 2013; and

      (2) The amendments to Subpart V of 29 C.F.R. 1926 as published in the April 11, 2014 Federal Register, Volume 79, Number 70[2010; and (3) 29 C.F.R. 1926.952 as amended and published in the August 9, 2010 Federal Register, Volume 75, Number 152].

 

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 and sets forth a state-specific requirement related to electric power transmission and generation. Section 2 also updates the C.F.R. to July 2013 and establishes the amendments to Subpart V of 1926 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 final rule 803 KAR 2:421 must be amended to include the adopted changes. The April 11, 2014 final rule is amending Subpart V in construction, 1926.950 through 1926.968 to make it more consistent with the general industry standard 1910.269, Electric power generation, transmission, and distribution. By being consistent, these new amendments simplify the requirements for employers in construction and general industry. The final rule also specifies that employers who comply with 1910.269 generally will be considered in compliance with the requirements of Subpart V. The final rule will include new or revised provisions on host employers and contractors, job briefings, fall protection, minimum approach distances, protection from electric arcs, operating mechanical equipment near overhead power lines, de-energizing transmission and distribution lines, and insulation and working position of employees working on or near live parts. This final rule added a number of regulations (1910.961-968) to the Subpart requiring changes to the [Related to:] section of the KAR. It also replaced wording related to Kentucky state-specific requirement in Section 2(1) allowing the program to delete the requirement and the OSH Standards Board to adopt the requirement as amended by the April 11, 2014 Federal Register during the May 06, 2014 meeting. 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 to 803 KAR 2:421, 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 updates the C.F.R. to July 1, 2013 and establishes the amendments to Subpart V of 29 C.F.R. 1926 published in the April 11, 2014 Federal Register, Volume 79, Number 70. As a result of the adoption of this final rule 803 KAR 2:421 must be amended to include the adopted changes. 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 to 803 KAR 2:421 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 final rule adds new regulations to Subpart V. This includes cost for Host-Contractor Communications, Expanded Job Briefings, and Arc-Flash PPE.

      (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): The April 11, 2014 final rule will have a total annual cost of 49 million dollars. This includes cost for Host-Contractor Communications, Expanded Job Briefings, and Arc-Flash PPE.

      (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 to 803 KAR 2:421, were all 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 to 803 KAR 2:421, were all 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? The April 11, 2014 final rule will have a total annual cost of 49 million dollars.

      (d) How much will it cost to administer this program for subsequent years? The April 11, 2014 final rule will have a total annual cost of 49 million dollars.

      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: No information was available specific to this state.