Arizona State Plan for Occupational Safety and Health, 6652-6656 [2015-02302]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[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

[[Page 6653]]

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,

[[Page 6654]]

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

[[Page 6655]]

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

[[Page 6656]]

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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