DAR File No. 43121

Labor Commission, Occupational Safety and Health

Section R614-1-4

Incorporation of Federal Standards

Notice of Proposed Rule

(Amendment)

DAR File No.: 43121
Filed: 07/26/2018 09:58:58 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of these changes are to incorporate the July 1, 2017, version of the Code of Federal Regulations (CFR) which will include the incorporation of 29 CFR 1904, 29 CFR 1910.1053, and 29 CFR 1926.1153.

Summary of the rule or change:

Employers in certain industries will be required to electronically submit injury and illness data that employers are already required to keep under existing regulations. The frequency and content of these establishment-specific submissions is set out in this rule and is dependent on the size and industry of the employer. This amended rule (29 CFR 1904) will contain updated requirements on how employers inform employees to report work-related injuries and illnesses to their employer. It also requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; clarifies the existing implicit requirement that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and prohibits employers from retaliating against employees for reporting work-related injuries or illnesses. This amended rule clarifies the rights of employees and their representatives to access the injury and illness records. 29 CFR 1910.1053 and 29 CFR 1926.1153 are new respirable crystalline silica standards. These standards will have a lower permissible exposure limit (PEL) of 50 micrograms of respirable crystalline silica per cubic meter of air, averaged over an 8-hour day, in both general industry and construction, as compared to the previous PELs which were approximately equivalent to 100 micrograms per cubic meter for general industry and 250 micrograms/m3 for construction. These standards will also contain an action level of 25 micrograms per cubic meter, averaged over an 8-hour day, and associated ancillary requirements. These incorporated standards will contain provisions for measuring how much silica workers are exposed to, limiting workers' access to areas where silica exposures are high, using effective methods for reducing exposures, providing medical exams to workers, establishing and implementing control plans, and training workers about silica-related hazards and how to limit exposure.

Statutory or constitutional authorization for this rule:

• Title 34A, Chapter 6

This rule or change incorporates by reference the following material:

• Updates 29 CFR 1904 except for 29 CFR 1904.36, published by Government Printing Office, 07/01/2017
• Updates 29 CFR 1926.6 and 1926.20 through the end of 1926, published by Government Printing Office, 07/01/2017
• Updates 29 CFR 1910.6 and 29 CFR 1910.21 through the end of 1910, published by Government Printing Office, 07/01/2017

Anticipated cost or savings to:

the state budget:

The fiscal impact on the state government is inestimable due to the inability to determine how many employees in this sector will be covered under the silica standard. NAICS codes were used to determine employers that would be affected and the NAICS coding used by the state government does not show work conducted by state government employees.

local governments:

29 CFR 1910.1053 and 29 CFR 1926.1153: anticipated fiscal cost = $176,207; anticipated fiscal benefit = $2,337,778; and net fiscal benefit = $2,161,571. 29 CFR 1904: amendments to this rule will not have a significant economic impact. It does not add to or change any employer's obligation to complete, retain, and certify injury and illness records and does not add to or change the recording criteria or definitions for these records. The only changes are that, under certain circumstances, employers will be obligated to submit information from these records in an electronic format and to assure that employees have, and understand that they have, a right to report injuries and illnesses without fear of discrimination. The electronic submission of information would be a relatively simple and quick matter. In most cases, submitting information would require several basic steps: 1) logging on to the Occupational Safety and Health Administration's (OSHA) web-based submission system; 2) entering basic establishment information into the system (the first time only); 3) copying the required injury and illness information from the establishments' records into the electronic submission forms; and 4) hitting a button to submit the information to OSHA. In many cases, especially for large establishments, injury and illness data is already kept electronically, so step 3 would be less time-intensive relative to cases in which records are kept on paper. The submission system, as anticipated, would also save an establishments' information from one submission to the next, so step 2 might be eliminated for most establishments after the first submission.

small businesses:

29 CFR 1910.1053 and 29 CFR 1926.1153: anticipated fiscal cost = $7,188,456; anticipated fiscal benefit = $224,516,539; and net fiscal benefit = $217,328,083. 29 CFR 1904: amendments to this rule will not have a significant economic impact on a substantial number of small businesses. It does not add to or change any employers' obligation to complete, retain, and certify injury and illness records and does not add to or change the recording criteria or definitions for these records. The only changes are that, under certain circumstances, employers will be obligated to submit information from these records in an electronic format and to assure that employees have, and understand that they have, a right to report injuries and illnesses without fear of discrimination. The electronic submission of information would be a relatively simple and quick matter. In most cases, submitting information would require several basic steps: 1) logging on to OSHA's web-based submission system; 2) entering basic establishment information into the system (the first time only); 3) copying the required injury and illness information from the establishments' records into the electronic submission forms; and 4) hitting a button to submit the information to OSHA. In many cases, especially for large establishments, injury and illness data is already kept electronically, so step 3 would be less time-intensive relative to cases in which records are kept on paper. The submission system, as anticipated, would also save an establishment's information from one submission to the next, so step 2 might be eliminated for most establishments after the first submission.

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

29 CFR 1910.1053 and 29 CFR 1926.1153: aggregate anticipated cost or saving to large businesses: anticipated fiscal cost = $1,127,278; anticipated fiscal benefit = $9,710,767; and net fiscal benefit = $8,583,489. Other parties that will benefit from the adoption of the silica standard are manufacturers and vendors whose services will be needed for employers to comply with the silica standard, such as controls, respiratory protection and programs, medical surveillance, control plans, regulated areas (general industry only) and training. The fiscal benefit is $7,321,704. 29 CFR 1904: amendments to this rule will not have a significant economic impact on a substantial number of large entities. It does not add to or change any employers' obligation to complete, retain, and certify injury and illness records and does not add to or change the recording criteria or definitions for these records. The only changes are that, under certain circumstances, employers will be obligated to submit information from these records in an electronic format and to assure that employees have, and understand that they have, a right to report injuries and illnesses without fear of discrimination. The electronic submission of information would be a relatively simple and quick matter. In most cases, submitting information would require several basic steps: 1) logging on to OSHA's web-based submission system; 2) entering basic establishment information into the system (the first time only); 3) copying the required injury and illness information from the establishments' records into the electronic submission forms; and 4) hitting a button to submit the information to OSHA. In many cases, especially for large establishments, injury and illness data is already kept electronically, so step 3 would be less time-intensive relative to cases in which records are kept on paper. The submission system, as anticipated, would also save an establishments' information from one submission to the next.

Compliance costs for affected persons:

29 CFR 1910.1053 and 29 CFR 1926.1153: the cost depends on the nature of the business and ranges from $295 for NAICS 238200 (Building Equipment Contractors) to $220,558 for NAICS 213112 (Support Services for Oil and Gas Operations). Below is an estimate of the median cost per an affected non-small businesses, small businesses, and local governments. The median annualized cost per an affected large establishment is $1,352. The median annualized cost per an affected small business is $1,200. The median annualized cost per an affected local government "establishment" as a result of incorporating the silica standard is $2,449. 29 CFR 1904: amendments to this rule will not have a significant economic impact on a substantial number of entities. It does not add to or change any employer's obligation to complete, retain, and certify injury and illness records and does not add to or change the recording criteria or definitions for these records. The only changes are that, under certain circumstances, employers will be obligated to submit information from these records in an electronic format and to assure that employees have, and understand that they have, a right to report injuries and illnesses without fear of discrimination. The electronic submission of information would be a relatively simple and quick matter. In most cases, submitting information would require several basic steps: 1) logging on to OSHA's web-based submission system; 2) entering basic establishment information into the system (the first time only); 3) copying the required injury and illness information from the establishment's records into the electronic submission forms; and 4) hitting a button to submit the information to OSHA. In many cases, especially for large establishments, injury and illness data is already kept electronically, so step 3 would be less time-intensive relative to cases in which records are kept on paper. The submission system, as anticipated, would also save an establishments' information from one submission to the next, so step 2 might be eliminated for most establishments after the first submission.

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

This rule will have a fiscal impact on businesses, however, to remain at least as effective as Federal OSHA and be able to retain Utah's State-Plan status, and to keep the employees of the state safe, these changes to this rule must be adopted.

Jaceson Maughan, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Office 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 801-530-6113, by FAX at 801-530-6390, or by Internet E-mail at chill@utah.gov
• Cameron Ruppe at the above address, by phone at 801-530-6898, by FAX at , or by Internet E-mail at cruppe@utah.gov
• Holly Lawrence at the above address, by phone at 801-530-6494, by FAX at 801-530-7606, or by Internet E-mail at hlawrence@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:

09/15/2018

This rule may become effective on:

09/24/2018

Authorized by:

Jaceson Maughan, Commissioner

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs	FY 2018	FY 2019	FY 2020
State Government	$0	$0	$0
Local Government	$176,207	$176,207	$176,207
Small Businesses	$7,188,456	$7,188,456	$7,188,456
Non-Small Businesses	$1,127,278	$1,127,278	$1,127,278
Other Person	$0	$0	$0
Total Fiscal Costs:	$8,491,941	$8,491,941	$8,491,941
Fiscal Benefits
State Government	$0	$0	$0
Local Government	$2,337,778	$2,337,778	$2,337,778
Small Businesses	$224,516,539	$224,516,539	$224,516,539
Non-Small Businesses	$9,710,767	$9,710,767	$9,710,767
Other Persons	$7,321,704	$7,321,704	$7,321,704
Total Fiscal Benefits:	$243,886,788	$243,886,788	$243,886,788
Net Fiscal Benefits:	$235,394,847	$235,394,847	$235,394,847

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non - Small Businesses are described below.

 

Appendix 2: Regulatory Impact to Non - Small Businesses

There is a total of 486 non-small businesses in the industries in question (60 different NAICS) with approximately 324 of these establishments affected by the adoption of the silica rule. Of these 324 establishments, 252 are in the construction industry and 72 are in general industry. For a complete listing of NAICS codes used in this analysis, please contact the agency.

 

In construction, the NAICS with the largest number of entities affected is 238200 (Building Equipment Contractors) at 44 with an annualized cost of $421 per entity. NAICS 237200 (Land Subdivision) and NAICS 237900 (Other Heavy Civil Engineering Construction) have the least amount of entities affected, 1, with an annualized cost of $912 and $3,160, respectively. The highest annualized cost per large entity in construction is that of NAICS 237300 (Highway Street and Bridge Construction) at $4,811. There are 28 affected large entities within this NAICS.

 

In general industry, the NAICS with the largest number of affected entities is 327320 (Ready-Mixed Concrete Manufacturing) at 13 with an annualized cost of $5,580 per entity. The annualized cost in general industry ranges from $304 (NAICS 621210, Dental Offices) per entity to $220,558 (NAICS 213112, Support Services for Oil and Gas Operations). There are 5 affected large entities in NAICS 621210 and 1 in NAICS 213112.

 

The median annualized cost per an affected large establishment as a result of incorporating the silica standard is $1,352. The annualized cost per an affected entity within the 60 NAICs was used to determine the median.

 

The average annualized cost per a large establishment is $3,479 with NAICS 213112 (Support Services for Oil and Gas Operations) at the highest ($220,558) and NAICS 621210 (Dental Offices) at the lowest ($304). The average cost was determined by taking the total cost and dividing by the number of affected non-small businesses.

 

Jaceson R. Maughan, Commissioner, has reviewed and approved this fiscal analysis.

 

 

R614. Labor Commission, Occupational Safety and Health.

R614-1. General Provisions.

R614-1-4. Incorporation of Federal Standards.

A. The following federal occupational safety and health standards are hereby incorporated:

1. 29 CFR 1904, July 1, [2015]2017, is incorporated by reference, except 29 CFR 1904.36 and 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, 2015, is incorporated by reference.

3. 29 CFR 1910.6 and 1910.21 through the end part of 1910, July 1, 2017, are incorporated by reference, except 29 CFR 1910.1024 [and 29 CFR 1910.1053].

4. 29 CFR 1926.6 and 1926.20 through the end of part 1926, of the July 1, 2017, edition are incorporated by reference, except 29 CFR 1926.1124 [and 29 CFR 1926.1153].

 

KEY: safety

Date of Enactment or Last Substantive Amendment: [December 27, 2017]2018

Notice of Continuation: October 19, 2017

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