[Federal Register Volume 79, Number 162 (Thursday, August 21, 2014)][Proposed Rules][Pages 49465-49469]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-19781]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1952
[Docket ID. OSHA 2014-0019]
RIN 1218-AC92
Arizona State Plan for Occupational Safety and Health
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Proposed rejection of State initiated plan change;
reconsideration of final approval of State plan; and request for
written comments.
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SUMMARY: The Occupational Safety and Health Act requires state plans to
provide safety standards "at least as effective as" those of Federal
OSHA. The legislature of Arizona enacted a fall protection standard for
residential roofing that provides fall protection at heights above 15
feet, while that of OSHA provides protection to workers at 6 feet. OSHA
is proposing to take action to require Arizona to revise its standard
to provide equivalent protection. OSHA is initiating two concurrent
administrative proceedings which would officially reject Arizona's fall
protection standard, and rescind the "final approval" status of the
Arizona state plan in the construction industry, to allow OSHA to
enforce Federal construction safety standards pending enactment by
Arizona of an "at least as effective" fall protection standard. OSHA
is soliciting written comments to ensure that all relevant information,
views and data are available to the Assistant Secretary. If requested,
a public hearing may be held on these issues.
DATES: Comments and requests for a hearing must be received by
September 25, 2014.
ADDRESSES: Written comments: Submit comments, identified by docket
number OSHA-2014-0019, or regulatory information number (RIN) 1218-
AC92, by any of the following methods:
Electronically: Submit comments and attachments electronically at
http://www.regulations.gov, which is the Federal eRulemaking Portal.
Follow the instructions on-line for making electronic submissions; or
Fax: If your submission, including attachments, does not exceed 10
pages, you may fax them to the OSHA Docket Office at (202) 693-1648; or
U.S. mail, hand delivery, express mail, messenger or courier
service: Submit your comments and attachments to the OSHA Docket
Office, Docket Number OSHA-2014-0019, U.S. Department of Labor, Room N-
2625, 200 Constitution Avenue NW., Washington, DC 20210; telephone
(202) 693-2350 (OSHA's TTY number is (877) 889-5627). Deliveries (hand,
express mail, messenger and courier service) are accepted during the
Department of Labor's and Docket Office's normal business hours, 8:15
a.m.-4:45 p.m., EDT.
Instructions for submitting comments: All submissions must include
the docket number (Docket No. OSHA-2014-0019) or the RIN number (RIN
1218-AC92) for this rulemaking. Because of security-related procedures,
submission by regular mail may result in significant delay. Please
contact the OSHA Docket Office for information about security
procedures for making submissions by hand delivery, express delivery
and messenger or courier service.
All comments, including any personal information you provide, are
placed in the public docket without change and will be made available
online at http://www.regulations.gov. Therefore, OSHA cautions you
about submitting personal information such as social security numbers
and birthdates.
Docket: To read or download submissions in response to this Federal
Register notice, go to docket number OSHA-2014-0019, at
http://www.regulations.gov. All submissions are listed in the
http://www.regulations.gov index, however some information (e.g.,
copyrighted material) is not publicly available to read or download
through that Web page. All submissions, including copyrighted material,
are available for inspection and copying at the OSHA Docket Office.
Electronic copies of this Federal Register document are available
at http://www.regulations.gov. This document as well as news releases
and other relevant information, is available at OSHA's Web page at
http://www.osha.gov. A copy of the documents referenced in this notice
may also be obtained from the OSHA Docket Office, at the address above.
Other information about the Arizona State Plan is posted on the state's
Web site at http://www.ica.state.az.us/adosh/adosh_main.aspx.
FOR FURTHER INFORMATION CONTACT:
For press inquiries: Mr. Francis Meilinger, OSHA Office of
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210; telephone: (202) 693-1999; email:
meilinger.francis2@dol.gov.
For general and technical information: Mr. Douglas J. Kalinowski,
Director, OSHA Directorate of Cooperative and State Programs, Room N-
3700, U.S. Department of Labor, 200 Constitution Avenue NW.,
Washington, DC 20210; telephone: (202) 693-2200; email:
kalinowski.doug@dol.gov.
SUPPLEMENTARY INFORMATION:
Background
Arizona State Plan
Arizona administers an OSHA-approved State Plan to develop and
enforce occupational safety and health standards for public and private
sector employers, pursuant to the provisions of Section 18 of the
Williams-Steiger Occupational Safety and Health Act of 1970 (29 U.S.C.
667) ("the Act"). The Arizona State Plan received initial Federal
OSHA plan approval on November 5, 1974 (39 FR 39037), and the Arizona
Occupational Safety and Health Division (ADOSH) of the Industrial
Commission of Arizona is designated as the state agency responsible for
administering the State Plan. Pursuant to Section 18(e) of the Act,
OSHA granted Arizona "final approval" effective June 20, 1985 (50 FR
25561). Final approval under Section 18(e) requires, among other
things, a finding by the Assistant Secretary that the plan, in actual
operation, provides worker protection "at least as effective as" that
provided by Federal OSHA. A final approval determination results in the
relinquishment of Federal concurrent enforcement authority in the state
with respect to occupational safety and health issues covered by the
plan (29 U.S.C. 667(e)).
OSHA's Residential Construction Fall Protection Standard
On November 25, 1986, OSHA proposed to revise the Federal
construction fall protection standard. The rulemaking record, developed
over a nine-year period, resulted in a more performance-oriented rule,
issued on August 9, 1994 (29 CFR part 1926, subpart M, 59 FR 40672). In
general, the rule requires that an employee exposed to a fall hazard at
a height of six feet or more must be protected by conventional fall
protection, meaning equipment that prevents or arrests the fall.
In response to feasibility issues about the rule raised by the
residential construction industry, on December 8, 1995, OSHA issued
interim fall protection procedures (STD 3.1) for residential
construction employers that differ from those in the rule. OSHA
Instruction STD 03-00-001 (a plain language rewrite and renumbering of
STD 3.1) set out an interim compliance policy that permitted employers
engaged in certain residential construction activities to use specified
alternative procedures instead of conventional fall protection. These
alternative procedures could be used without a prior showing of
infeasibility or greater hazard and without a written, site-specific
fall protection plan, requirements which apply to exceptions from the
general requirement to use conventional fall protection in other
construction sectors. OSHA never intended STD 03-00-001 to be a
permanent policy; in issuing the Instruction, OSHA stated that the
guidance provided therein would remain in effect until further notice
or until completion of a new formal rulemaking effort addressing these
concerns.
On July 14, 1999, OSHA published an Advanced Notice of Proposed
Rulemaking (ANPR) (64 FR 38078) seeking comments and data on claims of
infeasibility of fall protection requirements for certain construction
activities, which marked the start of its evaluation of STD 03-00-001.
In the ANPR, OSHA stated that the fall protection requirements of
subpart M were already established as reasonably necessary and
appropriate to protect workers and as technologically and economically
feasible for employers. OSHA noted that since the promulgation of
Subpart M, there had been advances in the types and capability of
commercially available fall protection equipment and therefore, OSHA
intended to rescind STD 03-00-001 unless persuasive evidence of
infeasibility or significant safety hazard was presented. OSHA was
willing to consider, and sought additional information on, specific
concerns raised by employers engaged in certain residential
construction activities.
After considering all comments submitted on the record, OSHA
concluded that, overall, there was no persuasive evidence that most
residential construction employers would be unable to find a safe and
feasible means of protecting workers from falls in accord with Subpart
M, 29 CFR 1926.501(b)(13). Therefore, on December 16, 2010, OSHA's
Compliance Guidance for Residential Construction (STD 03-11-002)
canceled OSHA's interim enforcement policy (STD 03-00-001) on fall
protection for certain residential construction activities, and
required employers engaged in residential construction to fully comply
with 29 CFR 1926.501(b)(13). This new guidance informed State Plans
that, in accordance with the Act, they must each have a compliance
directive on fall protection in residential construction that, in
combination with applicable State Plan standards, resulted in an
enforcement program that is at least as effective as Federal OSHA's
program (75 FR 80315, Dec. 22, 2010).
Arizona's Residential Construction Fall Protection Standard
On June 16, 2011, ADOSH adopted STD 03-11-002, but on June 17,
2011, the Industrial Commission of Arizona (ICA) immediately stayed the
enforcement of this directive. Then on November 30, 2011 the ICA lifted
the stay, effective January 1, 2012. On March 27, 2012, a new law, SB
1441, was signed into legislation, requiring conventional fall
protection in residential construction whenever an employee is working
at a height of fifteen or more feet or whenever a roof slope is steeper
than 7:12, and creating an exception if implementation of conventional
fall protection is "infeasible or creates a greater hazard." SB 1441
was codified as Arizona Revised Statute, Title 23, Ch. 2, Art 13 (A.R.S. 23-492), which
sets forth fall protection requirements for residential construction
work in the state. ADOSH then adopted the requirements of A.R.S. 23-492
as a state standard (Ariz. Admin. Code R20-5-601.01). On April 22,
2014, a new law, SB 1307, which makes certain revisions to A.R.S. 23-
492, was signed into law. This revised version of the state statute
makes some relatively minor changes to its fall protection
requirements, does not alter the 15-foot height for conventional fall
protection, and contains a conditional repeal provision.
The OSH Act requires State Plans to have standards that are at
least as effective as Federal OSHA's standards (29 USC 667(c)(2)). In
most instances, state standards are adopted by the designated state
occupational safety and health agency, and are forwarded to OSHA as
supplements to the State Plan (29 CFR 1953.4). In this instance,
however, the legislature itself provided the standard (Ariz. Admin.
Code R20-5-601.01). Accordingly, the State Plan supplement at issue in
this Federal Register document is referred to as the "state statute"
rather than "standard" or "supplement," the terms used in OSHA's
procedural regulations.
Steps Prior to This Document
Following an extensive review of the Arizona statute, on December
7, 2012, OSHA sent a letter to ADOSH stating that Federal OSHA has
determined that the state statute is not at least as effective as the
Federal equivalent in ensuring protection of residential construction
workers. Since that time, OSHA has held numerous meetings and phone
calls with Arizona stakeholders, ADOSH and the Industrial Commission of
Arizona, which oversees ADOSH. The OSHA National Office in Washington,
DC also spoke with staff from the Governor's Chief of Staff at the end
of 2013 to express OSHA's concerns about the state statute.
Pursuant to 29 CFR 1953.6(e), OSHA sent Arizona a letter to show
cause why a proceeding to reject the state statute and reconsider the
State's Final Approval Status should not be commenced, on March 19,
2014. That letter gave the State 30 days to respond, a time
subsequently extended to one week after the 2014 Arizona legislative
session adjourned. On May 1, 2014, Arizona submitted its response. The
response letter pointed to the passage of SB 1307, which is discussed
below. The response letter also argued that because SB 1307 would be
effective in late July 2014, the instant proceeding to reject A.R.S.
23-492 was moot. OSHA does not agree. The changes to A.R.S. 23-492
implemented by SB 1307 are limited, and OSHA has considered the
substance of those changes in this notice. Moreover, the main
provisions of A.R.S. 23-492 which are the basis for OSHA's proposed
rejection of the state statute, including the 15-foot trigger height
for conventional fall protection, remain in both the old and new
versions of the state statute. Additional arguments in the response
letter address the merits of whether Arizona's statute is at least as
effective as the Federal fall protection standard. As explained below,
OSHA does not believe that either the original or revised statute is at
least as effective as the Federal standard, and thus OSHA continues to
believe that there is cause to commence a proceeding to reject the
state statute and reconsider the State's Final 18(e) Approval Status.
Comparison of OSHA and Arizona's Residential Construction Fall
Protection Standards: How Arizona Is Not at Least as Effective as OSHA
Federal OSHA's standard for fall protection in residential
construction (29 CFR 1926.501(b)(13)) generally requires conventional
fall protection (fall arrest systems, safety nets, or guardrails) any
time employees are working at heights of six feet or greater.
Alternative fall protection measures may be used only if the employer
can demonstrate that it is infeasible or creates a greater hazard to
use the specified methods of conventional fall protection (29 CFR
1926.501(b)(13); see also STD 03-11-002). OSHA's standard creates a
presumption that use of conventional fall protection is feasible and
would not create a greater hazard, and puts the burden on employers to
show otherwise (29 CFR 1926.501(b)(13)). In the limited circumstances
in which conventional fall protection is infeasible or creates a
greater hazard, Federal OSHA requires the employer to implement a
written, site-specific fall protection plan that specifies the
alternative measures that will be taken to eliminate or reduce the
possibility of a fall (29 CFR 1926.501(b)(13); STD 03-11-002).
In contrast, Arizona's fall protection standard, under the statute
passed in 2012, requires very limited, if any, fall protection for
employees working between six and fifteen feet. With respect to work
performed at heights of 15 feet or greater, Arizona's statute has a
provision requiring the use of conventional fall protection unless the
employer demonstrates that the use of such measures is infeasible or
creates a greater hazard (A.R.S. 23-492.02(A)). Arizona's law does
require a fall protection plan, but unlike Federal OSHA, which requires
fall protection plans to be site-specific, Arizona allows employers to
"develop a single fall protection plan covering all construction
operations" for work performed at heights below fifteen feet (A.R.S.
23-492.07(A)(1)). Additionally, Arizona's statute contains multiple
exceptions to the general requirement for conventional fall protection
that will result in many circumstances in which conventional fall
protection is not required (A.R.S. 23-492.02(B); 23-492.04(D)(1) and
(D)(2); 23-492.04(G)(2); and (G)(3)). It also allows alternative fall
protection to be used, i.e. slide guards and roof jack systems, in
certain circumstances (A.R.S. 23-492.04(G)(1)(b); 23-492.05(B)).
Arizona's fall protection statute, newly revised in 2014, continues
to require very limited, if any, fall protection for employees working
between six and fifteen feet. At those heights, the statute continues
to require only a fall protection plan, which can be a single plan for
all sites. (SB 1307 Sec. 5(A)(1)). The newer version of the statute,
like the older one, requires conventional fall protection at a height
of 15 feet, and allows an exemption if that fall protection is
infeasible or creates a greater hazard (Sec. 2(A)). Though the revised
statute does eliminate some exemptions to and alternative methods of
fall protection, it still allows other exemptions to conventional fall
protection, SB 1307 Sec. 1(6) and Sec. 3(G)(2), and allows the use of
other alternative methods, i.e. "eave barriers" and parapet walls
(Secs. 3(G)(1), 4(A) and 4(B)).
After reviewing the provisions of both versions of the state
statute, OSHA has concluded that the Arizona statute is not at least as
effective as OSHA's standard. The most notable problematic differences
being Arizona's 15 foot trigger height for using conventional fall
protection as opposed to OSHA's six foot trigger height, the single
fall protection plan for all worksites, and the exceptions to the
requirement for conventional fall protection. On the basis of these
concerns about the state statute, OSHA is initiating a proceeding to
reject the state stature and reconsider the State Plan's Final
Approval, and requests public comment.
Proposed Rejection of Arizona's State Statute and Reconsideration of
Final Approval of the State Plan
This document proposes to reject the Arizona Revised Statute 23-
492, including the revisions in SB 1307, and concurrently reconsider
the Arizona State Plan's Final Approval pursuant to 29 CFR 1953.6(e)
and 29 CFR 1902.47 et seq., respectively. OSHA is moving forward with
both processes simultaneously with the understanding that
reconsideration of final approval is contingent on successful rejection
of the state statute.
Arizona must have an enforcement program for residential fall
protection that is at least as effective as OSHA's. As explained in STD
03-11-002:
States with OSHA-approved State Plans must have a compliance
directive on fall protection in residential construction that, in
combination with applicable State Plan standards, results in an
enforcement program that is at least as effective as Federal OSHA's
program. State plans must adopt the interpretation of "residential
construction" and the citation policy described in paragraphs IX
and X of this Instruction or an at least as effective alternative
interpretation and policy.
SB 1307 contains a conditional repeal provision stating that if
OSHA does reject the state statute, and publishes that decision in the
Federal Register pursuant to 29 CFR 1902.23, then A.R.S. 23-492 is
repealed by operation of law (Sec. 7). Arizona's response to OSHA's
show cause letter argued that if the state statute is repealed, ADOSH
would revert to enforcing 29 CFR part 1926, Subpart M, thus OSHA does
not need to proceed on reconsideration of the State's final approval
status. OSHA will proceed with reconsideration as a part of the
proceeding to reject the Arizona statute. If rejection is successful,
this would establish the basis for OSHA to reconsider the State's final
approval status if the State does not implement and enforce 29 CFR part
1926, Subpart M and STD 03-11-002, or an at least as effective
alternative, in an at least as effective manner. The lack of any such
implementation or enforcement would leave a gap in the State's
enforcement program, but if the State retained its final approval,
neither the State nor Federal OSHA could cover that gap. Any such gap
in the State Plan's enforcement program would serve as the basis for
the Assistant Secretary's reconsideration of 18(e) final approval
status. But as explained below, the Assistant Secretary may stagger the
decisions on rejection and reconsideration, issuing a rejection
decision first, and if it is successful, then delaying the decision on
reconsideration to allow the state time to implement and begin
enforcement of STD 03-11-002.
The Extent of OSHA's Coverage if Arizona's Final Approval Is
Reconsidered
While the issue at hand is limited to fall protection in
residential construction, it may not be possible or practical to limit
Federal coverage this narrowly, and it would likely extend to all
aspects of construction, including residential, throughout the state.
First, limiting Federal coverage to fall protection is not efficient or
effective because once an inspector is on a worksite, he or she is
obligated to inspect all aspects of the site. For example, if a Federal
inspection is initiated in response to a reported fall hazard, but
electrical, chemical, or equipment hazards are observed, those hazards
would need to be addressed immediately. It would be impractical to
contact ADOSH and have two agencies devoting resources to conduct two
inspections at the same site.
Second, limiting Federal coverage to residential construction may
not be feasible or effective because it is not always possible, with
simple visual observation of a site, to tell if a structure under
construction is a residence or a business. It may be necessary to
interview individuals at the site, investigate building permits, or
find other information before that determination can be made. It would
not be effective or efficient for an inspector to make these efforts,
determine that a site is not residential, and then leave to conduct
work elsewhere.
Third, it may be problematic for the regulated public to have
Federal OSHA enforcing requirements in residential construction while
the state enforces in the rest of the construction sector. The two
agencies have different inspection procedures, penalty assessments, and
appeals processes. Many individual contractors work on both residential
and commercial construction projects, and it would be preferable to
avoid oversight by multiple agencies, if possible.
Fourth, there also may be issues in reconciling the Federal
definition of residential construction in STD 03-11-002, and the
uncertainty of a definition of residential construction in Arizona. For
this reason, it may be difficult to come to an agreement about which
sites fall under residential construction and which are general
construction.
Operational Status Agreement
OSHA regulations provide that in states with initially-approved
plans, OSHA and the state may enter into an agreement describing the
division of responsibilities between them (29 CFR 1954.3). If the
Assistant Secretary were to make a final decision on reconsideration to
revoke final approval for construction, Federal authority for
discretionary concurrent enforcement would resume, and it may be useful
for OSHA and ADOSH to develop an Operational Status Agreement (OSA)
specifying the level of Federal and state enforcement. The OSA would
also include a timetable for remedial action to make state operations
"as least as effective." Notice would be provided in the Federal
Register of any such agreement.
Procedures for the Proceeding and Hearing
OSHA's regulation on rejection of a State Plan Change, 29 CFR
1953.6(e), refers to procedures in 29 CFR 1902.17 et seq. Then 29 CFR
1902.19, in turn, refers to the procedures in 5 U.S.C. 556-557. OSHA's
regulations on reconsideration of State Plan status, 29 CFR 1902.47 et
seq., refer to procedures in 29 CFR 1902.40 for a hearing. These two
sets of procedures (5 U.S.C. 556-557 and 29 CFR 1902.40) are similar,
and OSHA will adhere to the procedural requirements in both sets of
procedures. OSHA sent Arizona a letter to show cause why a proceeding
to reject the State statute and reconsider the state's Final Approval
Status should not be commenced, per 29 CFR 1953.6(e). This notice sets
forth a 35-day comment period, pursuant to 29 CFR 1902.49, to provide
interested parties an opportunity to provide in writing, data, views
and arguments on the proposed rejection of the Arizona statute and
proposal to reconsider final approval. Relevant materials, including
all public comments, relevant Federal monitoring reports, and other
pertinent documentation will be publically available in OSHA's Docket
Office and on www.regulations.gov, as described above. At the close of
the public comment period, OSHA will review all comments submitted.
A hearing would be presided over by an Administrative Law Judge
(ALJ), and the pre-hearing procedure may include opportunities for
subpoenas, depositions, and settlement conferences, within the
discretion of presiding ALJ (5 U.S.C. 556(c)). The ALJ may entertain
motions and may dispose of procedural requests, objections, and
comparable matters (29 CFR 1902.40(c)(2)). Under the rules of the
Department of Labor's Office of Administrative Law Judges, the ALJ also
has discretion on the rules for the proceeding (29 CFR 18.1(b)). The
hearing itself would include the presentation of testimony, cross-
examination of witnesses, and the introduction of exhibits, by both
parties (5 U.S.C. 556(d)). A hearing transcript would be created, and
ultimately, OSHA would have the burden of proof (5 U.S.C. 556(d)). At
the conclusion of any hearing, participants in the hearing would have
the opportunity to submit proposed findings, along with supporting
reasons and any additional data, views, or argument, within a period of
thirty days (29 CFR 1902.19 and 1902.40(c)(6)).
Assuming Arizona does not waive the tentative decision, the
Assistant Secretary will issue a tentative decision, on the basis of
the whole record, either approving or disapproving the state's statute
(29 CFR 1902.21). This tentative decision will include a statement of
the findings and conclusions that form the basis of this decision and
it will be published in the Federal Register (29 CFR 1902.21).
Interested persons participating in the hearing would then have the
opportunity to file exceptions, and objections to those exceptions. Any
exceptions must be filed within thirty days of the tentative decision,
and the objections within a period of time set forth in the tentative
decision (29 CFR 1902.22). Subsequently, the Assistant Secretary will
issue a final decision ruling on each exception and objection and
publish such decision in the Federal Register (29 CFR 1902.22-23). This
publication of the final decision in the Federal Register may also
include the Assistant Secretary's decision on the continuation or
revocation of the Arizona State Plan's affirmative 18(e) determination,
per 29 CFR 1902.52-53, or the two decisions may be issued on a
staggered basis. If the Assistant Secretary's decision is to revoke the
affirmative 18(e) determination, the Federal Register notice containing
that decision will also reflect the Assistant Secretary's determination
that concurrent Federal enforcement and standards authority will be
reinstated within Arizona for a reasonable time until the Assistant
Secretary has either withdrawn approval, or partial approval, of the
plan pursuant to 29 CFR 1955, or has determined that Arizona has once
again met criteria for final approval under section 18(e), (29 CFR
1902.52).
Pursuant to the regulations cited above, modifying the Arizona
State Plan's status from final to initial approval would give OSHA
concurrent enforcement authority in Arizona, including independent
Federal or joint state and Federal inspections resulting in issuance of
appropriate Federal citations. However, modifying Arizona's final
approval status would not immediately affect Arizona's basic plan
approval and would not eliminate Arizona's legal authority to enforce
state occupational safety and health standards. Pending a final
decision in the proceeding instituted today, OSHA will continue to
exercise Federal authority over safety and health issues excluded from
the scope of coverage of the State Plan; monitoring inspections
including accompanied visits; and other Federal authority not affected
by the June 20, 1985 final approval decision.
Authority and Signature
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for
Occupational Safety and Health, U.S. Department of Labor, 200
Constitution Avenue NW., Washington, DC 20210 authorized the
preparation of this notice. OSHA is issuing this notice under the
authority specified by Section 18 of the Occupational Safety and Health
Act of 1970 (29 U.S.C. 667), Secretary of Labor's Order No. 1-2012 (77
FR 3912), and 29 CFR parts 1902, and 1953.
Signed at Washington, DC, on August 13, 2014.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2014-19781 Filed 8-20-14; 8:45 am]
BILLING CODE 4510-26-P
