Titles of Regulations: 16VAC25-90. Federal Identical General Industry Standards (amending 16VAC25-90-1910.95, 16VAC25-90-1910.134, 16VAC25-90-1910.156, 16VAC25-90-1910.1001, 16VAC25-90-1910.1003, 16VAC25-90-1910.1017, 16VAC25-90-1910.1018, 16VAC25-90-1910.1025, 16VAC25-90-1910.1026, 16VAC25-90-1910.1027, 16VAC25-90-1910.1028, 16VAC25-90-1910.1029, 16VAC25-90-1910.1030, 16VAC25-90-1910.1043, 16VAC25-90-1910.1044, 16VAC25-90-1910.1045, 16VAC25-90-1910.1047, 16VAC25-90-1910.1048, 16VAC25-90-1910.1050, 16VAC25-90-1910.1051, 16VAC25-90-1910.1052; adding 16VAC25-90-1910.9).

16VAC25-100. Federal Identical Shipyard Employment Standards (amending 16VAC25-90-1915.1001, 16VAC25-90-1915.1026; adding 16VAC25-100-1915.9).

16VAC25-120. Federal Identical Marine Terminals Standards (adding 16VAC25-120-1917.5).

16VAC25-130. Federal Identical Longshoring Standards for Hazard Communications (adding 16VAC25-130-1918.5).

16VAC25-175. Federal Identical Construction Industry Standards (amending 16VAC25-175-1926.60, 16VAC25-175-1926.62, 16VAC25-175-1926.761, 16VAC25-175-1926.1101, 16VAC25-175-1926.1126, 16VAC25-175-1926.1127; adding 16VAC25-175-1926.20).

Statutory Authority: § 40.1-22 of the Code of Virginia.

Effective Date: July 15, 2009.

Agency Contact: John J. Crisanti, Planning and Evaluation Manager, Department of Labor and Industry, Powers-Taylor Building, 13 South Thirteenth Street, Richmond, VA 23219, telephone (804) 786-4300, FAX (804) 786-8418, TTY (804) 786-2376, or email john.crisanti@doli.virginia.gov.

Summary:

Federal OSHA revised the language of the initial respirator paragraphs, adopted in the 1998 respiratory protection rule, in its general industry, maritime and construction standards (29 CFR Parts 1910, 1915, 1917, 1918 and 1926 of the Code of Federal Regulations) to add language clarifying that the personal protective equipment (PPE) and training requirements in safety and health standards in these parts impose a compliance duty to each and every employee covered by the standards and that noncompliance may expose the employer to liability on a per-employee basis.

The amendments revised the language of those initial training paragraphs that required the employer to institute or provide a training program to explicitly state that the employer must train each employee. This revision added a new section to the introductory subparts of each part to clarify that standards requiring the employer to provide PPE, including respirators, or to provide training to employees, impose a separate compliance duty to each employee covered by the requirement and that each instance of an employee who does not receive the required PPE or training may be considered a separate violation.

Following the December 12, 2008, publication of the final rule for the Clarification of Employer Duty to Provide Personal Protective Equipment and Train Each Employee (73 FR 75568), federal OSHA discovered an error in the amendatory language of that final rule. The correction, located in 29 CFR 1926.1101 on page 75589, in the first column, Subpart Z, item 44, consisted of substituting "(h)(2)(i)" for "(h)(2)". The corrected language now reads as follows: "In section 1926.1101, paragraphs (h)(1) introductory text, (h)(2)(i), and (k)(9)(i) are revised to read as follows" (74 FR 858).

The amendments added no new compliance obligations.

Note on Incorporation by Reference:

Pursuant to § 2.2-4103 of the Code of Virginia, 29 CFR Part 1910, General Industry Standards; 29 CFR Part 1915, Shipyard Employment Standards; 29 CFR Part 1917, Marine Terminals Standards; 29 CFR Part 1918, Longshoring Standards for Hazard Communications; 29 CFR Part 1926, Construction Industry Standards, are declared documents generally available to the public and appropriate for incorporation by reference. For this reason the document will not be printed in the Virginia Register of Regulations. A copy of the document is available for inspection at the Department of Labor and Industry, 13 South 13th Street, Richmond, Virginia 23219, and in the office of the Registrar of Regulations, General Assembly Building, 9th and Broad Streets, Richmond, Virginia 23219.

Statement of Final Agency Action:

On April 16, 2009, the Safety and Health Codes Board adopted federal OSHA’s final rule on the Clarification of Employer Duty to Provide Personal Protective Equipment (PPE) and Train Each Employee, as published in 73 FR 75568 on December 12, 2008, with an effective date of July 15, 2009.

Federal Terms and State Equivalents:

When the regulations, as set forth in the Clarification to the final rule on Employer Duty to Provide Personal Protective Equipment and Train Each Employee, are applied to the Commissioner of the Department of Labor and Industry or to Virginia employers, the following federal terms shall be considered to read as follows: