[Federal Register Volume 80, Number 25 (Friday, February 6, 2015)][Rules and Regulations]
[Pages 6652-6656]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-02302]
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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, Department of
Labor.
ACTION: Rejection of State initiated plan change.
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SUMMARY: This document announces the Occupational Safety and Health
Administration's (OSHA's) decision to reject Arizona's standard for
fall protection in residential construction. OSHA is deferring decision
on the simultaneously proposed action of reconsidering the Arizona
State Plan's final approval status, pending Arizona's expected repeal
of the rejected standard, by operation of law, and subsequent
enforcement of a standard that is at least as effective as OSHA's
standard on fall protection in residential construction.
DATES: Effective February 6, 2015.
FOR FURTHER INFORMATION CONTACT:
For press inquiries: 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: 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 private sector and
state and local government 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 OSHA 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 for Occupational
Safety and Health ("Assistant Secretary") that the plan, in actual
operation, provides worker protection "at least as effective as" that
provided by OSHA.
OSHA's Residential Construction Fall Protection Standard
OSHA issued its current federal construction fall protection
standard on August 9, 1994 (29 CFR part 1926, subpart M, 59 FR 40672).
In general, subpart M requires that an employee exposed to a fall
hazard at a height of six feet or more (hereinafter referred to as a
"trigger height") be protected by conventional fall protection,
specifically a guardrail system, safety net system, or personal fall
arrest system. Subpart M creates an exception allowing a residential
construction employer who can demonstrate that it is infeasible or
creates a greater hazard to use these systems, to develop and implement
a fall protection plan instead. OSHA's standard requires that fall
protection plans conform to specific criteria, including that they be
site-specific and specify the alternative measures that will be taken
to eliminate or reduce the possibility of a fall. (29 CFR
1926.502(k)(1). As set forth in subpart M, there is a presumption that
use of conventional fall protection is feasible and implementation will
not create a greater hazard, and the employer has the burden of proving
otherwise. It should be noted that OSHA rarely encounters real-world
situations where conventional fall protection is truly infeasible.
In response to questions raised by the residential construction
industry about the feasibility of subpart M, on December 8, 1995, OSHA
issued interim fall protection procedures (STD 3.1) for residential
construction employers that differ from those in subpart M. 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. 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
rulemaking effort addressing these concerns.
On July 14, 1999, OSHA initiated the evaluation of STD 03-00-001 by
publishing an Advanced Notice of Proposed Rulemaking (ANPR) (64 FR
38078) seeking comments and data to support claims that fall protection
requirements for certain construction activities were infeasible. In
the ANPR, OSHA stated that the conventional fall protection
requirements and six foot trigger height set forth in subpart M were
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
additional 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.
After considering all comments submitted on the record, OSHA
concluded that, overall, there was no persuasive evidence to show that
employers in residential construction would be unable to find a safe
and feasible means of protecting workers from falls in accordance 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 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
bill, SB 1441, was signed into legislation, requiring conventional fall
protection in residential construction whenever an employee is working
at a height of 15 feet or more or whenever a roof slope is steeper than
7:12, and creating an exception where 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). 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). However, in this
instance 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.
After a series of discussions with the state, on March 19, 2014,
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. OSHA's main point of contention was the 15-foot
trigger height for the use of conventional fall protection. On May 1,
2014, Arizona submitted its response, pointing to the passage of SB
1307, a new bill signed on April 22, 2014, which makes certain revisions
to A.R.S. 23-492. This revised version of the state statute makes some
relatively minor changes to its fall protection requirements, but does
not alter the 15-foot trigger height for conventional fall protection.
The revisions in SB 1307 do mandate fall protection for heights above
six feet, but in most situations, allow this protection to be in the form
of a fall protection plan and do not require conventional fall protection.
Further, Arizona's requirements for a fall protection plan allow employers
to "develop a single fall protection plan covering all construction
operations," but require that a qualified person develop a supplement to
the general plan for additional fall hazards at specific sites, not already
included in the plan. (A.R.S. 23-492.07(A)(1)), (SB 1307 Secs. 5(A)(1),
(5)). The Arizona state statute requires that the plan "reduces or
eliminates hazards," but does not provide specific guidance on what
measures are enough to meet this threshold, and allows for only a
safety monitoring system in most situations. (A.R.S. 23-492.07(A)(8)).
Finally, SB 1307 also 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 (SB 1307 Sec. 7).
Comparison of OSHA Standards and Arizona's Residential Construction
Fall Protection Statute
The OSH Act requires that State Plans develop and enforce standards
that are at least as effective as OSHA's standards (29 U.S.C.
667(c)(2)). OSHA's standard for fall protection in residential
construction (subpart M, 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. In contrast, Arizona's state statute generally requires very
limited, if any, fall protection for employees working between six and
15 feet. The 2014 revision of the Arizona statute includes a mandate
for fall protection for heights above six feet, but in most situations,
allows for that fall protection to be in the form of a fall protection
plan only. As discussed below in response to the comments, OSHA has
found that conventional fall protection is a more effective means of
protecting workers than implementation of a written plan. Arizona and
OSHA's requirements for a fall protection plan differ significantly.
In the limited circumstances where conventional fall protection is
infeasible or creates a greater hazard, 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). (1307
Sec. 2(A) and 5(A)). In contrast, the Arizona statute generally
requires that the plan "reduces or eliminates hazards," but does not
provide specific guidance on what measures are enough to meet this
threshold, and allows for only a safety monitoring system in most
situations. (A.R.S. 23-492.07(A)(8)). In addition, the Arizona state
statute allows employers to develop a single fall protection plan that
can cover multiple worksites. In an apparent effort to make the single
fall protection plan more site-specific, the 2014 revision of the
Arizona statute requires that a qualified person develop a supplement
to the general plan for additional fall hazards not already included in
the plan. (SB 1307 Secs. 5(A)(1), (5)). However, the state statute
contains no guidance about the required level of detail of the plan,
which leaves open the possibility that single plans could be general
enough to meet the statutory requirement for almost all situations.
Further, there is no requirement to review the plan at each site to
ensure that it meets the statutory requirement of eliminating or
reducing the possibility of a fall.
Finally, Arizona's statute contains several exceptions to the
general requirement for conventional fall protection that will result
in many circumstances in which conventional fall protection is not
required, and the use of other alternative methods, e.g. "eave
barriers" and parapet walls is allowed. (SB 1307 Secs. 1(6), 3(G)(2),
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, Arizona's
single fall protection plan for all worksites, and Arizona's exceptions
to the requirement for conventional fall protection. On the basis of
these concerns, OSHA is rejecting Arizona's statute on fall protection
in residential construction.
Initial Federal Register Document and Discussion of Comments
OSHA published a Federal Register document proposing to reject the
Arizona fall protection statute and reconsider the state's final
approval on August 21, 2014 (79 FR 49465). The agency requested
comments by September 25, 2014. OSHA received a total of ten comments
on both rejection of the state statute and reconsideration of final
approval status. OSHA has reviewed and considered the comments, and the
following discussion summarizes the issues raised and OSHA's responses.
Comments were received from representatives of the American Society
for Safety of Engineers (ASSE), National Safety Council (NSC), Home
Builders Association of Central Arizona (HBACA), National Association
of Home Builders (NAHB), Subcontractors Association of Arizona
(ASA),\1\ members of the Arizona State Senate, Greater Phoenix Chamber
of Commerce, Safirst Corporation, Grand Canyon State Electric
Cooperative Association, and the Industrial Commission of Arizona
(ICA). Commenters provided mixed feedback on both the proposed
rejection of the Arizona statute and proposed reconsideration of
Arizona's final approval status. ASSE and NSC supported OSHA in
reconsidering final approval at this time, while the Greater Phoenix
Chamber of Commerce, Safirst Corporation, HBACA, NAHB, ICA, ASA,
members of the Arizona State Senate, and Grand Canyon State Electric
Cooperative Association all opposed reconsideration of final approval.
Most of the arguments against reconsideration included a request to
delay the action in order to allow the conditional repeal within SB
1307 to take effect upon rejection of the statute. OSHA has agreed to
defer its decision on reconsideration of final approval status and will
monitor Arizona's response to the rejection of the state statute and
subsequent implementation and enforcement of residential fall
protection requirements. Further discussion of the comments on
reconsideration can be tabled until such time that OSHA decides whether
or not to move forward on that action.
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\1\ Late comment.
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In respect to the comments on the proposed rejection of Arizona's
statute, ASSE and NSC both generally supported rejection, focusing on
the discrepancy in trigger heights and supporting the argument that a
law requiring a plan for avoiding hazards does not ensure the same
level of safety as a law requiring personal protective equipment when
exposure to a hazard does occur. The HBACA, NAHB, ASA, members of the
Arizona State Senate, and ICA all generally opposed rejection of the
state's statute, with many overlapping arguments. One common
contention was that the Arizona statute is "at least as effective" as
OSHA's standard because Arizona has a holistic approach to fall
protection, emphasizing fall prevention rather than simply focusing on
fall protection once a fall has occurred above certain trigger heights.
Commenters argued that Arizona has a more effective fall protection
program by requiring the extensive use of written fall protection plans
to implement work practices that reduce exposure to fall hazards. OSHA
agrees that preventing falls is preferable to arresting them. For
example, STD 03-11-002 notes that use of guardrails, where feasible, is
preferable to personal fall arrest systems or safety nets. However,
OSHA finds that a requirement to have a written fall protection plan in
place is not a substitute for the proactive protection provided by
guardrails, personal fall arrest systems or safety nets. In general,
OSHA has found that conventional fall protection is a more effective
means of protecting workers than a written plan to reduce or eliminate
fall hazards. OSHA agrees that planning plays an important part in
preventing falls and acknowledges that a written fall protection plan
contributes to ensuring safety at a workplace, but only if it is
combined with the implementation of conventional fall protection. If a
worker is exposed to a fall hazard despite the implementation of a
plan, that worker must be protected. Moreover, the protection afforded
needs to be at least as effective as what would be required under
OSHA's standard. Further, as discussed above, OSHA has concerns about
Arizona's fall protection plan requirements, on its face. In sum, the
state statute lacks specific guidance on the required contents of the
plan, essentially allows for a fall protection plan to be a single plan
for all sites, and does not require review of the plan at each site.
Commenters also argued that the exceptions to Arizona's general
requirement for conventional fall protection were greatly narrowed by
SB 1307 and do not undermine the statute. OSHA acknowledges that SB
1307 did limit the exceptions; however, in addition to only requiring a
fall protection plan between six and 15 feet in height, there are also
other exceptions above 15 feet in which conventional fall protection is
not required by the Arizona statute, but would be required under OSHA's
standard.
Another common thread among the comments opposing rejection is that
differing trigger heights is not conclusive evidence that the state's
standard is not "at least as effective" as OSHA's standard. OSHA's
rulemaking on subpart M concluded that a six foot rule was reasonably
necessary and appropriate to protect workers and technologically and
economically feasible for employers, including employers in residential
construction. OSHA recognizes Congressional intent in allowing State
Plans to promulgate different standards and to be more effective than
OSHA. State Plans are not necessarily required to adopt an identical
fall protection standard as long as workers are afforded "at least as
effective" protection under the state standard as they would have
under OSHA's standard.
Several commenters objected to OSHA making a determination of
effectiveness absent a publicized definition of effectiveness and known
process for making the determination. The OSH Act requires a State Plan
to develop and enforce safety and health standards that are "at least
as effective" in providing safe and healthful employment and places of
employment as provided by OSHA's standards. At least one commenter
asserted that OSHA should rely on outcome performance measures or
injury and illness rates as evidence that a State Plan is at least as
effective as OSHA. However, OSHA regulations establish that
effectiveness is evaluated by comparing state standards to OSHA's
standards on a provision by provision basis. OSHA's regulations require
that State Plans provide standards with respect to specific issues
which will be at least as effective as the standards promulgated by
OSHA relating to the same issues. (29 CFR 1902.4(b)(2)). OSHA's indices
of effectiveness require that State Plan standards are at least as
effective in containing specific provisions for the protection of
employees from exposure to hazards. As such, State Plan standards must
include appropriate provisions requiring use of suitable protective
equipment and control or technological procedures to protect against
such hazards. See 29 CFR 1902(b)(2)(vii). As explained above, OSHA's
main point of contention with the Arizona statute is that Arizona
employers are not required to provide conventional fall protection to
workers in residential construction working at heights between six and
15 feet on slopes with a pitch that is less than 7:12, as they would be
required to provide if operating in a state covered by OSHA, and the
Arizona statute fails to impose any additional or different
requirements or administrative controls that entirely eliminate the
fall hazard at those heights.
Three other collateral issues raised by the commenters included a
call for action with the other State Plans that have differing
standards for fall protection in residential construction; a request
for a response to NAHB's previous petition for OSHA to reopen the
rulemaking on the fall protection standard; and a concern about lack of
outreach to subcontractors during OSHA's discussions with Arizona. In
respect to the first issue, OSHA is currently engaged in a dialogue
with the other State Plans that have different fall protection trigger
heights, just as OSHA engaged in dialogue with Arizona prior to
beginning this formal process to reject the state statute. (See 79 FR
49465). OSHA expects these states to take steps in the near future to
move forward towards ensuring they are "at least as effective" as
OSHA. In respect to the second issue, on September 19, 2014, OSHA
released an official denial in response to NAHB's petition to reopen
rulemaking on the fall protection standard. In denying the petition,
OSHA stated, in part:
OSHA believes that rescinding the interim directive, and
enforcing compliance with 29 CFR 1926.501(b)(13), has been effective
in reducing the incidence of fatal falls among residential
construction workers. OSHA believes this policy change has led to
increasing numbers of residential construction employers using
conventional fall protection, and expects that residential
construction worksites will become even safer as more employers
implement these fall protection methods.
In respect to the third issue, OSHA values stakeholder input, and
if OSHA's discussions with other states about their fall protection in
residential construction standards lead to meetings with industry
representatives, OSHA will seek to welcome the involvement of
subcontractors, their representatives, and other interested parties. In
this proceeding, OSHA outlined its efforts to work with Arizona and
other stakeholders in the initial Federal Register document (See 79 FR
49465), and OSHA has meet all the procedural requirements for this
action. (See 29 CFR 1953.6(e)).
The public comments and questions submitted on the docket have all
been addressed in this document and there are no substantial issues
raised that necessitate a public hearing. Arizona specifically waived a
hearing on the rejection of the state statute, and no other commenter
requested a hearing. Arizona also waived the tentative decision by the
Assistant Secretary that is provided in the regulations on rejection
proceedings. (29 CFR 1902.21) The regulations further provide that
when the state waives the tentative decision, the Assistant Secretary
"shall issue a final decision." (29 CFR 1902.21(b)).
Decision on Rejecting the State's Statute
Pursuant to the procedures set forth in 29 CFR 1953.6(e) and
1902.22-23, the Assistant Secretary has made a final decision to reject
the Arizona State Plan's statute for fall protection in residential
construction. Thus, the Assistant Secretary rejects the changes to
Arizona's State Plan prescribed by Title 23, chapter 2, article 13,
section 01, Arizona Revised Statutes (A.R.S. 23-492.01) under 29 CFR
1953.6(e) and 1902.22, and now publishes that decision in the Federal
Register pursuant to 29 CFR 1902.23. This rejection excludes the
changes prescribed by A.R.S. 23-492.01 from the Arizona State Plan. The
Assistant Secretary is deferring decision on the simultaneously
proposed action of reconsidering the State Plan's final approval. This
deferral is pending Arizona's expected repeal of the rejected statute
and subsequent enforcement of a standard at least as effective as
OSHA's standard. The Assistant Secretary's decision to reject the state
statute is based upon the facts determined by OSHA in monitoring the
Arizona State Plan and a comparative review of Arizona's statute and
OSHA's standard, and was reached after opportunity for public comment.
Effect of the Decision
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 (SB 1307 Sec. 7). Therefore, the expected
effect of the Assistant Secretary's decision to reject Arizona's
statute covering fall protection in residential construction is that
ADOSH will revert to enforcing 29 CFR part 1926, subpart M. The
Assistant Secretary will defer the decision on reconsideration to allow
the state time to implement and begin enforcement of STD 03-11-002.
OSHA will continue to monitor the State Plan, specifically enforcement
activities in residential construction, to confirm that ADOSH is
implementing and enforcing subpart M, 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 for construction, but if the State Plan retained
its final approval, neither the State Plan nor 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. At this time, the Assistant Secretary is
deferring the decision on reconsideration pending the state's
enforcement of subpart M.
Authority and Signature
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for
Occupational Safety and Health, U.S. Department of Labor, 200
Constitution Ave. NW., Washington, DC, authorized the preparation of
this document. OSHA is issuing this document 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 in Washington, DC, on January 30, 2015.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2015-02302 Filed 2-5-15; 8:45 am]
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