DAR File No. 39855

Labor Commission, Occupational Safety and Health

Rule R614-1

General Provisions

Notice of Proposed Rule

(Amendment)

DAR File No.: 39855
Filed: 10/21/2015 02:11:42 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The reasons for the changes to Sections R614-1-1 through R614-1-4 are to make references to the Utah Occupational Safety and Health Division (UOSH) uniform throughout the rules, remove parts of the old rules not applicable to UOSH, clarify some parts of the old rules, renumber subsections, and incorporate the most current federal standards applicable to UOSH.

Summary of the rule or change:

Changes to Section R614-1-1 clarify the name of the division. Changes to Section R614-1-2 further clarify the name of the division, clarify the scope of incorporated federal regulations and state rules, and remove superfluous language. Changes to Section R614-1-3 remove parts which are not relevant to the division, clarify time frames, make uniform the name of the division, and renumber the subsections. Changes to Section R614-1-4 incorporate the most current federal standards applicable to UOSH and remove redundancies.

State statutory or constitutional authorization for this rule:

• Title 34A, Chapter 6

This rule or change incorporates by reference the following material:

• Updates 29 CFR 1926.6 and 1926.20 to end of part 1926, published by Government Printing Office, 07/01/2015
• Updates 29 CFR 1904, published by Government Printing Office, 07/01/2015
• Updates 29 CFR 1908, published by Government Printing Office, 07/01/2015
• Updates 29 CFR 1910.6 and 1910.21 to end of part 1910, published by Government Printing Office, 07/01/2015

Anticipated cost or savings to:

the state budget:

There will be no cost or savings to the state budget due to these rule revisions. These revisions clarify and update the existing rules and will have no cost impact on state budget.

local governments:

There will be no cost or savings to local government due to these rule revisions. These revisions clarify and update the existing rules and will have no cost impact on local government.

small businesses:

There will be no cost or savings to small businesses due to these rule revisions. These revisions clarify and update the existing rules and will have no cost impact on small businesses.

persons other than small businesses, businesses, or local governmental entities:

There will be no cost or savings to persons other than small businesses, businesses or local government due to these rule revisions. These revisions clarify and update the existing rules and will have no cost impact on persons other than small businesses, businesses, or local government.

Compliance costs for affected persons:

None--There will be no compliance costs for affected persons due to these rule revisions. These revisions clarify and update the existing rules and will have no compliance cost impact on affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

There will be no fiscal impact on businesses due to these rule revisions. These revisions clarify and update the existing rules and will have no fiscal impact on businesses.

Sherrie Hayashi, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Labor Commission
Occupational Safety and Health
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Christopher Hill at the above address, by phone at 801-530-6898, by FAX at 801-530-7606, or by Internet E-mail at chill@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/15/2015

This rule may become effective on:

12/22/2015

Authorized by:

Sherrie Hayashi, Commissioner

R614. Labor Commission, Occupational Safety and Health.

R614-1. General Provisions.

R614-1-1. Authority.

A. These rules and all subsequent revisions as approved and promulgated by the Labor Commission, [Division of]Utah Occupational Safety and Health Division, are authorized pursuant to Title 34A, Chapter 6, Utah Occupational Safety and Health Act.

B. The intent and purpose of this chapter is stated in Section 34A-6-202 of the Act.

C. In accordance with legislative intent these rules provide for the safety and health of workers and for the administration of this chapter by the [Division of]Utah Occupational Safety and Health Division of the Labor Commission.

 

R614-1-2. Scope.

These rules consist of the administrative procedures of [UOSH]the Utah Occupational Safety and Health Division, incorporating by reference applicable federal standards from 29 CFR 1904, 1908, 1910 and [29 CFR] 1926, and the Utah initiated occupational safety and health standards found in Utah Administrative Code R614-1 through R614-7. [Notice has been given and rules filed as required by Subsection 34A-6-104(1)(c) and 34A-6-202(2) of the Utah Occupational Safety and Health Act and by Title 63G, Chapter 3, Utah Administrative Rulemaking Act.]

 

R614-1-3. Definitions.

A. "Access" means the right and opportunity to examine and copy.

B. "Act" means the Utah Occupational Safety and Health Act of 1973.

[C. "Administration" means the Division of Occupational Safety and Health of the Labor Commission, also known as UOSH (Utah Occupational Safety and Health).]

[D]C. "Administrator" means the director of the Division[of Occupational Safety and Health].

[E]D. "Amendment" means such modification or change in a code, standard, rule, or order intended for universal or general application.

[F]E. "Analysis using exposure or medical records" means any compilation of data, or any research, statistical or other study based at least in part on information collected from individual employee exposure or medical records or information collected from health insurance claims records, provided that either the analysis has been reported to the employer or no further work is currently being done by the person responsible for preparing the analysis.

[G]F. "Commission" means the Utah Labor Commission.

[H. "Council" means the Utah Occupational Safety and Health Advisory Council.]

[I]G. "Days" means calendar days, including Saturdays, Sundays, and holidays. The day of receipt of any notice shall not be included, and the last day of [the 30 days]any time frame shall be included. If the last day of any time period is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday or legal holiday.

[J]H. "Designated representative" means any individual or organization to whom an employee gives written authorization to exercise a right of access. For the purpose of access to employee exposure records and analyses using exposure or medical records, a recognized or certified collective bargaining agent shall be treated automatically as a designated representative without regard to written employee authorization.

[K]I. "Division" means the [Division of]Utah Occupational Safety and Health Division (UOSH) within the Commission[, known by the acronyum of UOSH (Utah Occupational Safety and Health)].

[L]J. "Employee" includes any person suffered or permitted to work by an employer.

1. For Medical Records: "Employee" means a current employee, a former employee, or an employee being assigned or transferred to work where there will be exposure to toxic substances or harmful physical agents. In the case of deceased or legally incapacitated employee, the employee's legal representative may directly exercise all the employee's rights under this section.

[M]K. "Employee exposure record" means a record containing any of the following kinds of information concerning employee exposure to toxic substances or harmful physical agents:

1. Environmental (workplace) monitoring or measuring, including personal, area, grab, wipe, or other form of sampling, as well as related collection and analytical methodologies, calculations, and other background data relevant to interpretations of the results obtained;

2. Biological monitoring results which directly assess the absorption of a substance or agent by body systems (e.g., the level of a chemical in the blood, urine, breath, hair, fingernails, etc.) but not including results which assess the biological effect of a substance or agent;

3. [Material s]Safety data sheets; or

4. In the absence of the above, any other record which reveals the identity (e.g., chemical, common, or trade name) of a toxic substance or harmful physical agent.

[N]L. Employee medical record

1. "Employee medical record" means a record concerning the health status of an employee which is made or maintained by a physician, nurse, or other health care personnel, or technician including:

a. Medical and employment questionnaires or histories (including job description and occupational exposures);

b. The results of medical examinations (pre-employment, pre-assignment, periodic, or episodic) and laboratory tests (including X-ray examinations and all biological monitoring);

c. Medical opinions, diagnoses, progress notes, and recommendations;

d. Descriptions of treatments and prescriptions; and

e. Employee medical complaints.

2. "Employee medical record" does not include the following:

a. Physical specimens (e.g., blood or urine samples) which are routinely discarded as a part of normal medical practice, and not required to be maintained by other legal requirements;

b. Records concerning health insurance claims if maintained separately from the employer's medical program and its records, and not accessible to the employer by employee name or other direct personal identifier (e.g., social security number, payroll number, etc.); or

c. Records concerning voluntary employee assistance programs (alcohol, drug abuse, or personal counseling programs) if maintained separately from the employer's medical program and its records.

[O]M. "Employer" means:

1. The state;

2. Each county, city, town, and school district in the state; and

3. Every person, firm, and private corporation, including public utilities, having one or more workers or operatives regularly employed in the same business, or in or about the same establishment, under any contract of hire.

4. For medical records: "Employer" means a current employer, a former employer, or a successor employer.

[P]N. "Establishment" means a single physical location where business is conducted or where services or industrial operations are performed. (For example: A factory, mill, store, hotel, restaurant, movie theater, farm, ranch, bank, sales office, warehouse, or central administrative office.) Where distinctly separate activities are performed at a single physical location (such as contract construction activities from the same physical location as a lumber yard), each activity shall be treated as a separate physical establishment, and separate notices shall be posted in each establishment to the extent that such notices have been furnished by the Administrator.

[1. Establishments whose primary activity constitutes retail trade; finance, insurance, real estate and services are classified in SIC's 52-89.

2. Retail trades are classified as SIC's 52-59 and for the most part include establishments engaged in selling merchandise to the general public for personal or household consumption. Some of the retail trades are: automotive dealers, apparel and accessory stores, furniture and home furnishing stores, and eating and drinking places.

3. Finance, insurance and real estate are classified as SIC's 60-67 and include establishments which are engaged in banking, credit other than banking, security dealings, insurance and real estate.

4. Services are classified as SIC's 70-89 and include establishments which provide a variety of services for individuals, businesses, government agencies, and other organizations. Some of the service industries are: personal and business services, in addition to legal, educational, social, and cultural; and membership organizations.

5. The primary activity of an establishment is determined as follows: For finance, insurance, real estate, and services establishments, the value of receipts or revenue for services rendered by an establishment determines its primary activity. In establishments with diversified activities, the activities determined to account for the largest share of production, sales or revenue will identify the primary activity. In some instances these criteria will not adequately represent the relative economic importance of each of the varied activities. In such cases, employment or payroll should be used in place of normal basis for determining the primary activity.]

[Q]O. "Exposure" or "exposed" means that an employee is subjected to a toxic substance or harmful physical agent in the course of employment through any route of entry (inhalation, ingestion, skin contact or absorption, etc.) and includes past exposure and potential (e.g., accidental or possible) exposure, but does not include situations where the employer can demonstrate that the toxic substance or harmful physical agent is not used, handled, stored, generated, or present in the workplace in any manner different from typical non-occupational situations.

[R]P. "Hearing" means a proceeding conducted by the commission.

[S]Q. "Imminent danger" means a danger exists which reasonably could be expected to cause an occupational disease, death, or serious physical harm immediately, or before the danger could be eliminated through enforcement procedures under this chapter.

[T]R. "Inspection" means any inspection of an employer's factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer, and includes any inspection conducted pursuant to a complaint filed under R614-1-6.K.1. and 3., any re-inspection, follow-up inspection, accident investigation or other inspection conducted under Section 34A-6-301 of the Act.

[U]S. "National consensus standard" means any occupational safety and health standard or modification:

1. Adopted by a nationally recognized standards-producing organization under procedures where it can be determined by the administrator and division that persons interested and affected by the standard have reached substantial agreement on its adoption;

2. Formulated in a manner which affords an opportunity for diverse views to be considered; and

3. Designated as such a standard by the Secretary of the United States Department of Labor.

[V]T. "Person" means the general public, one or more individuals, partnerships, associations, corporations, legal representatives, trustees, receivers, and the state and its political subdivisions.

[W]U. "Publish" means publication in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.

[X]V. "Record" means any item, collection, or grouping of information regardless of the form or process by which it is maintained (e.g., paper document, microfiche, microfilm, X-ray film, or automated data processing.)

[Y]W. "Safety and Health Officer" means a person authorized by the [Utah Occupational Safety and Health Administration]Division to conduct inspections.

[Z]X. "Secretary" means the Secretary of the United States Department of Labor.

[AA]Y. "Specific written consent" means written authorization containing the following:

1. The name and signature of the employee authorizing the release of medical information;

2. The date of the written authorization;

3. The name of the individual or organization that is authorized to release the medical information;

4. The name of the designated representative (individual or organization) that is authorized to receive the released information;

5. A general description of the medical information that is authorized to be released;

6. A general description of the purpose for the release of medical information; and

7. A date or condition upon which the written authorization will expire (if less than one year).

8. A written authorization does not operate to authorize the release of medical information not in existence on the date of written authorization, unless this is expressly authorized, and does not operate for more than one year from the date of written authorization.

9. A written authorization may be revoked in writing prospectively at any time.

[BB]Z. "Standard" means an occupational health and safety standard or group of standards which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary to provide safety and healthful employment and places of employment.

[CC]AA. "Toxic substance" or "harmful physical agent" means any chemical substance, biological agent (bacteria, virus, fungus, etc.) or physical stress (noise, heat, cold, vibration, repetitive motion, ionizing and non-ionizing radiation, hypo and hyperbaric pressure, etc) which:

1. Is regulated by any Federal law or rule due to a hazard to health;

2. Is listed in the latest printed edition of the National Institute for Occupational Safety and Health (NIOSH) Registry of Toxic Effects of Chemical Substances (RTECS) (See R614-[103-20B Appendix B]1-12B);

3. Has yielded positive evidence of an acute or chronic health hazard in human, animal, or other biological testing conducted by, or known to the employer; or

4. Has a material safety data sheet available to the employer indicating that the material may pose a hazard to human health.

[DD]BB. "Variance" means a special, limited modification or change in the code or standard applicable to the particular establishment of the employer or person petitioning for the modification or change.

[EE]CC. "Workplace" means any place of employment.

 

R614-1-4. Incorporation of Federal Standards.

A. [General Industry Standards.]The following federal occupational safety and health standards are hereby incorporated:

1. [Sections 29 CFR 1910.21 to 1910.999 and 1910.1000 through the end of part 1910 of the July 1, 2011, edition are incorporated by reference.]29 CFR 1904, July 1, 2015, is incorporated by reference, except the workplace fatality, injury and illness reporting requirements found in 29 CFR 1904.1, 1904.2, 1904.7 and 1904.39. Workplace fatalities, injuries and illnesses shall be reported pursuant to the more specific Utah standards in Utah Code Ann. Subsection 34A-6-301(3)(b)(2) and the Utah Administrative Code R614-1-5(C)(1).

2. 29 CFR 1908, July 1, 201[1]5, is incorporated by reference.

3. 29 CFR [1904, July 1, 2011, is incorporated by reference.

4. FR Vol. 77, Monday, March 26, 2012, Pages 17574 to and including 17896 "29CFR Part 1910 Hazard Communication:" Final Rule is incorporated by reference.]1910.6 and 1910.21 through the end part of 1910, July 1, 2015, are incorporated by reference.

[B. Construction Standards.

1]4. [Section] 29 CFR 1926.6 and 1926.20 through the end of part 1926, of the July 1, 201[1]5, edition [is]are incorporated by reference.

[2. FR Vol. 77, Monday, March 26, 2012, Pages 17574 to and including 17896 "29CFR Part 1910 Hazard Communication:" Final Rule is incorporated by reference.]

 

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KEY: safety

Date of Enactment or Last Substantive Amendment: [ July 8, ]2015

Notice of Continuation: October 22, 2012

Authorizing, and Implemented or Interpreted Law: 34A-6