Titles of Regulations: 16VAC25-60. Administrative Regulation for the Virginia Occupational Safety and Health Program (amending 16VAC25-60-130).

16VAC25-85. Recording and Reporting Occupational Injuries and Illnesses (amending 16VAC25-85-1904.10).

16VAC25-90. Federal Identical General Industry Standards (amending 16VAC25-90-1910.6, 16VAC25-90-1910.120, 16VAC25-90-1910.1001, Appendices D, E, H to 16VAC25-90-1910.1001, 16VAC25-90-1910.1017, 16VAC25-90-1910.1018, Appendices A, C to 16VAC25-90-1910.1018, 16VAC25-90-1910.1025, 16VAC25-90-1910.1026, 16VAC25-90-1910.1027, Appendix D to 16VAC25-90-1910.1027, 16VAC25-90-1910.1028, 16VAC25-90-1910.1029, Appendices A, B to 16VAC25-90-1910.1029, 16VAC25-90-1910.1030, 16VAC25-90-1910.1043, Appendices B-1, B-11, B-111, C, D to 16VAC25-90-1910.1043, 16VAC25-90-1910.1044, 16VAC25-90-1910.1045, 16VAC25-90-1910.1047, 16VAC25-90-1910.1048, Appendix D to 16VAC25-90-1910.1048, 16VAC25-90-1910.1050, 16VAC25-90-1910.1051, Appendix F to 16VAC25-90-1910.1051, 16VAC25-90-1910.1052, Appendix B to 16VAC25-90-1910.1052, 16VAC25-90-1910.1053).

16VAC25-100. Federal Identical Shipyard Employment Standards (amending 16VAC25-100-1915.5, 16VAC25-100-1915.80, 16VAC25-100-1915.1001, Appendices D, E, I to 16VAC25-100-1915.1001, 16VAC25-100-1915.1026).

16VAC25-175. Federal Identical Construction Industry Standards (amending 16VAC25-175-1926.6, 16VAC25-175-1926.50, 16VAC25-175-1926.55, 16VAC25-175-1926.60, 16VAC25-175-1926.62, 16VAC25-175-1926.64, 16VAC25-175-1926.104, 16VAC25-175-1926.200, 16VAC25-175-1926.201, 16VAC25-175-1926.250, 16VAC25-175-1926.800, 16VAC25-175-1926.1000, 16VAC25-175-1926.1001, 16VAC25-175-1926.1002, 16VAC25-175-1926.1003, 16VAC25-175-1926.1101, Appendices D, E, I to 16VAC25-175-1926.1101, 16VAC25-175-1926.1126, 16VAC25-175-1926.1127, 16VAC25-175-1926.1129, 16VAC25-175-1926.1153; repeal 16VAC25-175-1926.202, 16VAC25-175-1926.203, Appendix A to Subpart W).

Statutory Authority: § 40.1-22 of the Code of Virginia; Occupational Safety and Health Act of 1970 (P.L. 91-596).

Effective Date: November 15, 2019.

Agency Contact: Holly Trice, Senior Staff Attorney, Department of Labor and Industry, 600 East Main Street, Suite 207, Richmond, VA 23219, telephone (804) 786-2641, FAX (804) 371-6524, or email holly.trice@doli.virginia.gov.

Summary:

In a final rule, Standards Improvement Project - IV (SIP-IV), federal Occupational Safety and Health Administration (OSHA) makes 14 revisions to existing standards in the recordkeeping, general industry, maritime, and construction standards. SIP-IV removes or revises outdated, duplicative, unnecessary, and inconsistent requirements in OSHA's safety and health standards in 29 CFR.

More specifically, SIP-IV:

1. Revises § 1904.10(b)(6) of 29 CFR Part 104 (Occupational Injuries and Illness Recordkeeping and Reporting Standards) to assist employers in complying with requirements for recording hearing loss by adding a cross reference to § 1904.5.

2. Makes three revisions to Subpart Z (Toxic and Hazardous Substances) of Parts 1910, 1915, and 1926 as follows:

a. Remove the requirement that employers provide periodic chest X-rays (CXR) to screen for lung cancer from Inorganic Arsenic (§ 1910.1018), Coke Oven Emissions (§ 1910.1029), and Acrylonitrile (§ 1910.1045). OSHA is not removing (i) the requirement for a baseline CXR in these or any other standards or (ii) the CXR requirements in standards where CXR is used for purposes other than screening for lung cancer.

b. Allow but not require use of digital "CXRs" in the medical surveillance provisions of Inorganic Arsenic (§ 1910.1018), Coke Oven Emissions (§ 1910.1029), Acrylonitrile (§ 1910.1045), Asbestos (§§ 1910.1001, 1915.1001, 1926.1101), and Cadmium (§§ 1910.1027 and 1926.1127) and allows other reasonably-sized standard X-ray films, such as the 16-inch by 17-inch size, to be used in addition to the 14-inch by 17-inch film specified in some standards.

c. Update terminology and references to (i) replace ''roentgenogram'' with ''X-ray"; (ii) eliminate references to semiannual exams for certain employees in the Coke Oven Emissions appendices (§ 1910.1029, Appendix A(VI) and Appendix B(II)(A)) as these exams were eliminated in the second SIP rulemaking (70 FR 1112); (iii) in Appendix E of each of its three asbestos standards (§§ 1910.1001, 1915.1001, and 1926.1101), update terminology and clarify that classification must be in accordance with the International Labour Organization (ILO) classification system according to the Guidelines for the use of the ILO International Classification of Radiographs of Pneumoconioses (revised edition 2011); and (iv) specify that only ILO standard digital chest radiographic images are to be used to classify digital CXRs and that digital CXRs are not to be printed out as hard copies and then classified.

3. Makes four revisions to update lung function testing requirements found in Subpart Z (Toxic and Hazardous Substances) of Part 1910, Cotton Dust Standard (§ 1910.1043) including the following:

a. In § 1910(h)(2)(iii), require an evaluation of forced expiratory volume (FEV1), forced vital capacity (FVC), and FEV1/FVC against the lower limit of normal and percent predicted values to fully characterize possible pulmonary impairment in exposed workers, which is consistent with generally accepted current practices and supported by the National Institute of Occupational Safety and Health (NIOSH).

b. Remove the old Knudson values from Appendix C, reserve Appendix C for future use, and modify § 1910.1043(n)(1) to specify that only Appendices B and D are mandatory.

c. Change two subheaders in The Respiratory Questionnaire for Non-Textile Workers for the Cotton Industry (Appendix B-II to § 1910.1043), section "B. Occupational History Table," column titled ''Tenure of Employment'' to read as follows: ''FROM (year)'' and ''TO (year)''; the "Tenure of Employment" column contains boxes in which dates of employment are entered.

d. Make changes to reflect the most recent spirometry recommendations from American Thoracic Society/European Respiratory Society (ATS/ERS) (Miller et al., 2005) in Appendix D to § 1910.1043, which sets standards for spirometric measurements of pulmonary function.

4. Removes the term "feral cat" from the definitions in § 1915.80.

5. Revises § 1926.50 to update the 911 service posting requirements consistent with the current status of land-line and wireless telephone technologies.

6. Makes several minor clarifications to § 1926.55, including changing the phrase "threshold limit values" (TLV) to "permissible exposure limits" (PELs), removing confusing phrases, and fixing grammatical errors.

7. Replaces the entire regulatory text for the Process Safety Management of Highly Hazardous Chemicals (PSM) Standard for Construction at § 1926.64 with a cross reference to the identical general industry standard at § 1910.119.

8. Revises the minimum breaking strength in the safety belts, lifelines, and lanyards standard at § 1926.104(c) from 5,400 to 5,000 pounds to conform with the breaking strength requirements in the Fall Protection Standard at § 1926.502(d)(9).

9. Revises Subpart G of Part 1926:

a. Update the version of Part 6 of the Manual on Uniform Traffic Control Devices (MUTCD) that is incorporated by reference to the November 4, 2009, MUTCD (2009 Edition), including Revision 1 and Revision 2, both dated May 2012 (74 FR 66730, 77 FR 28455, and 77 FR 28460).

b. Revise §§ 1926.200 through 1926.203 to (i) delete references in §§ 1926.200(g)(2) and 1926.201(a) to the 1988 Edition and Millennium Edition of the MUTCD and insert references to the 2009 Edition, (ii) revise the regulatory text of § 1926.200 (g)(1) and (2) to eliminate confusion regarding OSHA's interpretation of the existing text; (iii) delete § 1926.202 because it duplicates the requirements in the revisions to § 1926.200(g); and (iv) delete § 1926.203 because the revisions to § 1926.202 make § 1926.203 unnecessary.

10. Revises § 1926.250(a)(2) to exclude all single-family residential structures and woodframed multifamily residential structures from the requirement of posting maximum safe load limits of floors in storage areas.

11. Revises Subpart S (Underground Construction, Caissons, Cofferdams, and Compressed Air) of Part 1926 to update § 1926.800(k)(10)(ii) for mobile diesel powered equipment used in ''other than gassy operations'' underground by requiring compliance only with § 57.5067, pertaining to underground metal and nonmetal mines, instead of §§ 75.1909, 75.1910, and 75.1911(a) through (i), pertaining to underground coal mines.

12. Revises Subpart W (Rollover Protective Structures; Overhead Protection) of Part 1926 by removing the provisions that specify the test procedures and performance requirements found in §§ 1926.1000, 1926.1001, 1926.1002, and 1926.1003 and replacing those provisions with references to the underlying consensus standards from which they were derived. (ISO 3471:2008, ISO 5700:2013, ISO 27850:2013.)

13. Revises Subpart Z of Part 1926 by removing and reserving § 1926.1129, which regulated exposure to Coke Oven Emissions in Construction; coke oven work is only found in general industry.

14. Makes multiple revisions to paragraphs and appendices in Parts 1910, 1915, and 1926 to remove Social Security number collection requirements.

In this regulatory action, the board is adopting this final rule and revising 16VAC25-60-130 D to update the reference to Part 6 of the MUTCD to the November 4, 2009 MUTCD, including Revision 1 and Revision 2, both dated May 2012.  

Note on Incorporation by Reference: Pursuant to § 2.2-4103 of the Code of Virginia, 29 CFR Part 1904 (Recording and Reporting Occupational Injuries and Illnesses), 29 CFR Part 1910 (Occupational Safety and Health Standards), 29 CFR 1915 (Shipyard Employment Standards), and 29 CFR Part 1926 (Construction Industry Standards) are declared documents generally available to the public and appropriate for incorporation by reference. For this reason, these documents will not be printed in the Virginia Register of Regulations. A copy of each document is available for inspection at the Department of Labor and Industry, Main Street Centre, 600 East Main Street, Richmond, Virginia 23219, and in the office of the Registrar of Regulations, 900 East Main Street, 11th Floor, Richmond, Virginia 23219.

Statement of Final Agency Action: On September 17, 2019, the Safety and Health Codes Board adopted Phase IV of federal OSHA's final rule for the Standards Improvement Project, as published in 84 FR 21416 through 84 FR 21598 on May 14, 2019, with an effective date of November 15, 2019.

Federal Terms and State Equivalents: When the regulations as set forth in the Standards Improvement Project-Phase IV 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:

Federal Terms	VOSH Equivalent
29 CFR	VOSH Standard
Assistant Secretary	Commissioner of Labor and Industry
Agency	Department
May 14, 2019	November 15, 2019

16VAC25-60-130. Construction industry standards.

A. The occupational safety or health standards adopted as rules or regulations by the Virginia Safety and Health Codes Board either directly, or by reference, from 29 CFR Part 1926 shall apply by their own terms to all employers and employees engaged in either construction work or construction related activities covered by the Virginia State Plan for Occupational Safety and Health.

B. The employer shall comply with the manufacturer's specifications and limitations applicable to the operation, training, use, installation, inspection, testing, repair and maintenance of all machinery, vehicles, tools, materials and equipment, unless specifically superseded by a more stringent corresponding requirement in 29 CFR Part 1926. The use of any machinery, vehicle, tool, material or equipment that is not in compliance with any applicable requirement of the manufacturer is prohibited, and shall either be identified by the employer as unsafe by tagging or locking the controls to render them inoperable or be physically removed from its place of use or operation.

C. For the purposes of the applicability of such Part 1926 standards, the key criteria utilized to make such a decision shall be the activities taking place at the worksite, not the primary business of the employer. Construction work shall generally include any building, altering, repairing, improving, demolishing, painting or decorating any structure, building, highway, or roadway and any draining, dredging, excavation, grading or similar work upon real property. Construction also generally includes work performed in traditional construction trades such as carpentry, roofing, masonry work, plumbing, trenching and excavating, tunneling, and electrical work. Construction does not include maintenance, alteration or repair of mechanical devices, machinery, or equipment, even when the mechanical device, machinery or equipment is part of a pre-existing structure.

D. The employer shall comply with the Virginia Department of Transportation (VDOT) Work Area Protection Manual in lieu of the federal Manual on Uniform Traffic Control Devices (Part VI of the MUTCD, 1988 2009 Edition, Revision 3 1 dated May 2012 and Revision 2 dated May 2012, or Part VI of the MUTCD, Millennium Edition - referenced in 16VAC25-175-1926.200 through 16VAC25-175-1926.202) and 16VAC25-175-1926.201) when working under a contract for construction, repair, or maintenance between the employer and the Commonwealth; agencies, authorities, or instrumentalities of the Commonwealth; or any political subdivision or public body of the Commonwealth when such contract stipulates employer compliance with the VDOT Work Area Protection Manual in effect at the time of contractual agreement.

E. Certain standards of 29 CFR Part 1910 have been determined by federal OSHA to be applicable to construction and have been adopted for this application by the board.

F. The standards adopted from 29 CFR Part 1910.19 and 29 CFR Part 1910.20 containing respectively, special provisions regarding air contaminants and requirements concerning access to employee exposure and medical records shall apply to construction work as well as general industry.