29 C.F.R. Subpart Q—Kentucky
Title 29 - Labor
Source: 50 FR 24896, June 13, 1985, unless otherwise noted.
(a) The plan designates the Department of Labor as the agency responsible for administering the Plan throughout the State. It proposes to define the occupational safety and health issue covered by it as defined by the Secretary of Labor in §1902.2(c)(1) of this chapter. All occupational safety and health standards promulgated by the United States Secretary of Labor have been adopted under the Plan as well as a certain standard deemed to be “as effective as” the Federal standard, except those found in parts 1915, 1916, 1917 and 1918 of this chapter (ship repairing, ship building, ship breaking and longshoring). All Federal standards adopted by the State became effective on December 29, 1972. (b) Within the plan there is enabling legislation revising chapter 338 of the Kentucky Revised Statutes which became law on March 27, 1972; as well as legislation enacted and approved in a Special Session of the Legislature in 1972 amending the enabling legislation. The law as enacted and modified gives the Department of Labor, Division of Occupational Safety and Health, the statutory authority to implement an occupational safety and health plan modeled after the Federal Act. There are provisions within it granting the Commissioner of Labor the authority to inspect workplaces and to issue citations for the abatement of violations and there is also included a prohibition against advance notice of such inspections. The law is also intended to insure employer and employee representatives an opportunity to accompany inspectors and to call attention to possible violations; notification of employees or their representatives when no compliance action is taken as a result of employee alleged violations; protection of employees against discrimination in terms and conditions of employment; and adequate safeguards to protect trade secrets. There is provision made for the prompt restraint of imminent danger situations and a system of penalties for violation of the statute. There are also provisions creating the Kentucky Occupational Safety and Health Standards Board and the Kentucky Occupational Safety and Health Review Board. The Law has further provision that the Department of Labor will enter into an agreement with the Public Service Commission (PSC) which shall serve as the State agency in the administration of all matters relating to occupational safety and health with respect to employees of public utilities. (c) The plan includes an opinion from the Attorney General that the Law is consistent with the Constitution of the State. There is also set forth in the Plan a Time Schedule for the Development of a Public Employee Program. The Plan also contains a comprehensive description of personnel employed under the State's merit system as well as its proposed budget and resources. (d) The Kentucky plan includes the following documents as of the date of approval: (1) The plan description documents, including the Kentucky Occupational Safety and Health Act, and appendices in three (3) volumes; (2) Letter for James R. Yocum, Commissioner of the Kentucky Department of Labor, to Basil A. Needham, Jr., Regional Administrator, Atlanta, Georgia Office, Occupational Safety and Health Administration, June 14, 1973, submitting additions and clarifications to the plan. (3) Letter from James R. Yocum to the Assistant Secretary of Labor, John H. Stender, July 13, 1973, submitting assurances that the State will submit certain amendments to the 1974 Session of its Legislature. (e) The public comments will also be available for inspection and copying with the plan documents. [38 FR 20324, July 31, 1973, as amended at 50 FR 24896, June 13, 1985] The Kentucky state plan is developmental. The following is the developmental schedule as provided by the plan: (a) A comprehensive public employee program will be developed within three years of plan approval. (b) Within six months after plan approval, the procedure for the promulgation of standards will be revised. (c) An affirmative action program will be submitted to the Assistant Secretary as well as clearance of possible inconsistencies of the State Merit System by the Civil Service Commission within six months after grant approval. (d) Revision of various regulations, including those pertaining to employee access to information on their exposure to toxic materials or harmful physical agents and contests before the Review Commission will be undertaken within six months after plan approval. (e) Submission of amendments to KRS chapter 338 in 1974 General Assembly, to provide temporary variance authority and incorporate in that chapter penalties for willful violations causing death. [38 FR 20324, July 31, 1973. Redesignated at 50 FR 24896, June 13, 1985] (a) In accordance with the requirements of §1952.10 the Kentucky Safety and Health Poster for private and public employees was approved by the Assistant Secretary on May 20, 1976. (b) Amendments in the Kentucky enabling legislation were enacted to include (1) a division of occupational safety and health compliance and a division of education and training (KRS 333.153(a)) and (2) authority and procedures for granting temporary variances. Penalties for willful violations causing death of an employee are covered under KRS chapters 434, 503 and 534. (c) An amended Kentucky Administrative Procedure Act (KRS chapter 13) provides procedures for promulgation of standards and administrative regulations including emergency temporary standards. (d) Kentucky regulations governing recordkeeping and reporting (parallel to the Federal 29 CFR part 1904), inspections, citations, proposed penalties (parallel to the Federal 29 CFR part 1903) and variances (parallel to the Federal 29 CFR part 1905) were initially approved with the State plan on July 31, 1973. These regulations were expanded to provide for: (1) Penalties for failure to correct violations; (2) Mandatory penalties for failure to post a citation; (3) Procedures for petition for modification of abatement dates and (4) Procedures for granting temporary variances. In addition, Kentucky adopted regulations pertaining to employee access to information on exposure to toxic materials or harmful physical agents. (e) A manual Management Information System was implemented in July, 1975, and converted to an automated system in July, 1977. (f) The personnel operations of the Kentucky Department of Labor and the servicing merit system agency have been found to be in substantial conformity with the “Standards for a Merit System of Personnel Administration” by letter of the Secretary of Labor dated May 17, 1977. In addition, a Kentucky Department of Labor affirmative action plan to promote equal employment opportunity has been judged acceptable by the Regional Office of Personnel Management by letter dated February 12, 1979. (g) Kentucky revised regulations governing the operation of the Kentucky Occupational Safety and Health Review Commission were promulgated in December, 1975. (h) A revised Kentucky Compliance Manual was initially submitted in July, 1976, and subsequently amended in response to Federal comment to reflect changes in Federal procedures through December 20, 1976. (i) By executive orders 74–374 and 77–573 dated May 15, 1974, and June 30, 1977, respectively, the Governor of Kentucky made the following changes in the organization of the Kentucky Occupational Safety and Health Program: (1) All occupational health functions except laboratory services were transferred from Kentucky Department of Human Resources to the Kentucky Department of Labor. (2) Responsibilities for coverage of employees of public utilities were transferred from the Kentucky Public Service Commission to the Kentucky Department of Labor. (j) A Kentucky Public Employee plan has been adopted by the State. (k) In accordance with §1902.34 of this chapter, the Kentucky occupational safety and health plan received certification, effective February 8, 1980, as having completed all developmental steps specified in its plan as approved on July 31, 1973, on or before July 31, 1976. This certification attests to structural completion, but does not render judgment on adequacy of performance. [41 FR 21774, May 28, 1976, as amended at 41 FR 34252, Aug. 13, 1976; 45 FR 8596, 8598, Feb. 8, 1980. Redesignated at 50 FR 24896, June 13, 1985] Under the terms of the 1978 Court Order in AFL-CIO v. Marshall compliance staffing levels (benchmarks) necessary for a “fully effective” enforcement program were required to be established for each State operating an approved State plan. In September 1984 Kentucky, in conjunction with OSHA, completed a reassessment of the levels initially established in 1980 and proposed revised compliance staffing benchmarks of 23 safety and 14 health compliance officers. After opportunity for public comment and service on the AFL-CIO, the Assistant Secretary approved these revised staffing requirements on June 13, 1985. (a) In accordance with section 18(e) of the Act and procedures in 29 CFR part 1902, and after determination that the State met the “fully effective” compliance staffing benchmarks as revised in 1984 in response to a Court Order in AFL-CIO v. Marshall (CA 74–406), and was satisfactorily providing reports to OSHA through participation in the Federal-State Unified Management Information System, the Assistant Secretary evaluated actual operations under the Kentucky State plan for a period of at least one year following certification of completion of developmental steps (45 FR 8596). Based on the 18(e) Effectiveness Report for the period of October 1982 through March 1984, and after opportunity for public comment, the Assistant Secretary determined that in operation the State of Kentucky's occupational safety health program is at least as effective as the Federal program in providing safe and healthful employment and places of employment and meets the criteria for final State plan approval in section 18(e) of the Act and implementing regulations at 29 CFR part 1902. Accordingly, the Kentucky plan was granted final approval and concurrent Federal enforcement authority was relinquished under section 18(e) of the Act effective June 13, 1985. (b) Except as otherwise noted, the plan which has received final approval covers all activities of employers and all places of employment in Kentucky. The plan does not cover private sector maritime employment; employment at Tennessee Valley Authority facilities; military bases; properties ceded to the U.S. Government; Federal government employers and employees; the U.S. Postal Service (USPS), including USPS employees, and contract employees and contractor-operated facilities engaged in USPS mail operations; the enforcement of the field sanitation standard, 29 CFR 1928.110, and the enforcement of the temporary labor camps standard, 29 CFR 1910.142, with respect to any agricultural establishment where employees are engaged in “agricultural employment” within the meaning of the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1802(3), regardless of the number of employees, including employees engaged in hand packing of produce into containers, whether done on the ground, on a moving machine, or in a temporary packing shed, except that Kentucky retains enforcement responsibility over agricultural temporary labor camps for employees engaged in egg, poultry, or red meat production, or the post-harvest processing of agricultural or horticultural commodities. (c) Kentucky is required to maintain a State program which is at least as effective as operations under the Federal program; to submit plan supplements in accordance with 29 CFR part 1953; to allocate sufficient safety and health enforcement staff to meet the benchmarks for State staffing established by the U.S. Department of Labor, or any revisions to those benchmarks; and, to furnish such reports in such form as the Assistant Secretary may from time to time require. [50 FR 24896, June 13, 1985, as amended at 62 FR 2562, Jan. 17, 1997; 65 FR 36624, June 9, 2000] (a) As a result of the Assistant Secretary's determination granting final approval to the Kentucky plan under section 18(e) of the Act, effective June 13, 1985, occupational safety and health standards which have been promulgated under section 6 of the Act do not apply with respect to issues covered under the Kentucky plan. This determination also relinquishes concurrent Federal OSHA authority to issue citations for violations of such standards under sections 5(a)(2) and 9 of the Act; to conduct inspections and investigations under section 8 (except those necessary to conduct evaluation of the plan under section 18(b) and other inspections, investigations, or proceedings necessary to carry out Federal responsibilities not specifically preempted by section 18(e)); to conduct enforcement proceedings in contested cases under section 10; to institute proceedings to correct imminent dangers under section 13; and to propose civil penalties or initiate criminal proceedings for violations of the Federal Act under section 17. The Assistant Secretary retains jurisdiction under the above provisions in any proceeding commenced under section 9 or 10 before the effective date of the 18(e) determination. (b)(1) In accordance with section 18(e), final approval relinquishes Federal OSHA authority only with regard to occupational safety and health issues covered by the Kentucky plan. OSHA retains full authority over issues which are not subject to State enforcement under the plan. Thus, Federal OSHA retains its authority relative to safety and health in private sector maritime activities and will continue to enforce all provisions of the Act, rules or orders, and all Federal standards, current or future, specifically directed to maritime employment (29 CFR Part 1915, shipyard employment; Part 1917, marine terminals; Part 1918, longshoring; Part 1919, gear certification) as well as provisions of general industry and construction standards (29 CFR Parts 1910 and 1926) appropriate to hazards found in these employments; employment at Tennessee Valley Authority facilities and on all military bases, as well as any other properties ceded to the U.S. Government. Federal jurisdiction is retained and exercised by the Employment Standards Administration, U.S. Department of Labor, (Secretary's Order 5–96, dated December 27, 1996) with respect to the field sanitation standard, 29 CFR 1928.110, and the enforcement of the temporary labor camps standard, 29 CFR 1910.142, in agriculture, as described in §1952.234(b). Federal jurisdiction is also retained with respect to Federal government employers and employees; and the U.S. Postal Service (USPS), including USPS employees, and contract employees and contractor-operated facilities engaged in USPS mail operations. (2) In addition, any hazard, industry, geographical area, operation or facility over which the State is unable to effectively exercise jurisdiction for reasons not related to the required performance or structure of the plan shall be deemed to be an issue not covered by the finally approved plan, and shall be subject to Federal enforcement. Where enforcement jurisdiction is shared between Federal and State authorities for a particular area, project, or facility, in the interest of administrative practicability, Federal jurisdiction may be assumed over the entire project or facility. In either of the two aforementioned circumstances, Federal enforcement may be exercised immediately upon agreement between Federal and State OSHA. (c) Federal authority under provisions of the Act not listed in section 18(e) is unaffected by final approval of the plan. Thus, for example, the Assistant Secretary retains his authority under section 11(c) of the Act with regard to complaints alleging discrimination against employees because of the exercise of any right afforded to the employee by the Act, although such complaints may be referred to the State for investigation. The Assistant Secretary also retains his authority under section 6 of the Act to promulgate, modify or revoke occupational safety and health standards which address the working conditions of all employees, including those in States which have received an affirmative 18(e) determination, although such standards may not be Federally applied. In the event that the State's 18(e) status is subsequently withdrawn and Federal authority reinstated, all Federal standards, including any standards promulgated or modified during the 18(e) period, would be Federally enforceable in that State. (d) As required by section 18(f) of the Act, OSHA will continue to monitor the operations of the Kentucky State program to assure that the provisions of the State plan are substantially complied with and that the program remains at least as effective as the Federal program. Failure by the State to comply with its obligations may result in the revocation of the final determination under section 18(e), resumption of Federal enforcement, and/or proceedings for withdrawal of plan approval. [50 FR 24896, June 13, 1985, as amended at 62 FR 2562, Jan. 17, 1997; 65 FR 36624, June 9, 2000] A copy of the principal documents comprising the plan may be inspected and copied during normal business hours at the following locations:
Office of State Programs, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue NW, Room N3700, Washington, DC 20210; Office of the Regional Administrator, Occupational Safety and Health Administration, U.S. Department of Labor, Atlanta Federal Center, 61 Forsyth Street, SW., Room 6T50, Atlanta, Georgia 30303; and Office of the Secretary, Kentucky Labor Cabinet, 1047 U.S. Highway 127 South, Suite 4, Frankfort, Kentucky 40601. [65 FR 36625, June 9, 2000] (a) Legislation. (1) On March 29, 1994, the Assistant Secretary approved Kentucky's revised statutory penalty levels which are the same as the revised Federal penalty levels contained in section 17 of the Act as amended on November 5, 1990. (2) [Reserved] (b) The Voluntary Protection Program. On October 24, 1996, the Assistant Secretary approved Kentucky's plan supplement, which is generally identical to the Federal Voluntary Protection Program, with the exception that the State's VPP is limited to the “Star” level participation for general industry firms. (c) Temporary labor camps/field sanitation. Effective February 3, 1997, the Assistant Secretary approved Kentucky's plan amendment, dated July 29, 1996, relinquishing coverage for the issues of field sanitation (29 CFR 1928.110) and temporary labor camps (29 CFR 1910.142) in agriculture (except for agricultural temporary labor camps associated with egg, poultry or red meat production, or the post-harvest processing of agricultural or horticultural commodities.) The Employment Standards Administration, U.S. Department of Labor, has assumed responsibility for enforcement of these Federal OSHA standards in agriculture in Kentucky pursuant to Secretary of Labor's Order 5–96, dated December 27, 1996. [59 FR 14556, Mar. 29, 1994, as amended at 61 FR 55099, Oct. 24, 1996; 62 FR 2563, Jan. 17, 1997]
Title 29: Labor
PART 1952—APPROVED STATE PLANS FOR ENFORCEMENT OF STATE STANDARDS
Subpart Q—Kentucky
§ 1952.230 Description of the plan as initially approved.
§ 1952.231 Developmental schedule.
§ 1952.232 Completion of developmental steps and certification.
§ 1952.233 Compliance staffing benchmarks.
§ 1952.234 Final approval determination.
§ 1952.235 Level of Federal enforcement.
§ 1952.236 Where the plan may be inspected.
§ 1952.237 Changes to approved plans.
