[Federal Register: December 14, 2007 (Volume 72, Number 240)]
[Rules and Regulations]
[Page 71061-71070]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14de07-7]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. OSHA-2007-0040]
RIN 1218-AC08
Updating OSHA Standards Based on National Consensus Standards
AGENCY: Occupational Safety and Health Administration (OSHA);
Department of Labor.
ACTION: Direct final rule.
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SUMMARY: In this direct final rule, the Agency is removing several
references to consensus standards that have requirements that
duplicate, or are comparable to, other OSHA rules; this action includes
correcting a paragraph citation in one of these OSHA rules. The Agency
also is removing a reference to American Welding Society standard A3.0-
1969 ("Terms and Definitions") in its general-industry welding
standards. This rulemaking is a continuation of OSHA's ongoing effort
to update references to consensus and industry standards used
throughout its rules.
DATES: This direct final rule will become effective on March 13, 2008
unless significant adverse comment is received by January 14, 2008.
Comments to this direct final rule (including comments to the
information-collection (paperwork) determination described under the
section titled SUPPLEMENTARY INFORMATION of this notice), hearing
requests, and other information must be submitted by January 14, 2008.
All submissions must bear a postmark or provide other evidence of the
submission date. (See the following section titled ADDRESSES for
methods you can use in making submissions.)
ADDRESSES: Comments and hearing requests may be submitted as follows:
Electronic. Comments may be submitted electronically to
http://www.regulations.gov, which is the Federal eRulemaking Portal.
Follow the instructions online for submitting comments.
Facsimile. OSHA allows facsimile transmission of comments
and hearing requests that are 10 pages or fewer in length (including
attachments). Send these documents to the OSHA Docket Office at (202)
693-1648; hard copies of these documents are not required. Instead of
transmitting facsimile copies of attachments that supplement these
documents (e.g., studies, journal articles), commenters must submit
these attachments, in triplicate hard copy, to the OSHA Docket Office,
Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200
Constitution Ave., NW., Washington, DC 20210. These attachments must
clearly identify the sender's name, date, subject, and docket number
(i.e., OSHA-2007-0040) so that the Agency can attach them to the
appropriate document.
Regular mail, express delivery, hand (courier) delivery,
and messenger service. Submit three copies of comments and any
additional material (e.g., studies, journal articles) to the OSHA
Docket Office, Docket No. OSHA-2007-0040 or RIN No. 1218-AC08,
Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200
Constitution Ave., NW., Washington, DC 20210; telephone: (202) 693-
2350. (OSHA's TTY number is (877) 889-5627.) Note that security-related
problems may result in significant delays in receiving comments and
other written materials by regular mail. Please contact the OSHA Docket
Office for information about security procedures concerning delivery of
materials by express delivery, hand delivery, and messenger service.
The hours of operation for the OSHA Docket Office are 8:15 a.m. to 4:45
p.m., e.t.
Instructions. All submissions must include the Agency name
and the OSHA docket number (i.e., OSHA Docket No. OSHA-2007-0040).
Comments and other material, including any personal information, are
placed in the public docket without revision, and will be available
online at http://www.regulations.gov. Therefore, the Agency cautions
commenters about submitting statements they do not want made available
to the public, or submitting comments that contain personal information
(either about themselves or others) such as social security numbers,
birth dates, and medical data.
OSHA requests comments on all issues related to this direct final
rule. It also welcomes comments on its findings that there would be no
negative economic, paperwork, or other regulatory impacts of this
direct final rule on the regulated community. If OSHA receives no
significant adverse comment, it will publish a Federal Register
document confirming the effective date of this direct final rule and
withdrawing the companion proposed rule. Such confirmation may include
minor stylistic or technical corrections to the document. For the
purpose of judicial review, OSHA views the date of confirmation of the
effective date of this direct final rule as the date of issuance.
However, if OSHA receives significant adverse comment on this direct
final rule, it will publish a timely withdrawal of this rule and
proceed with the proposed rule addressing the same standards published
in the "Proposed Rules" section of today's Federal Register.
Docket. To read or download comments or other material in
the docket, go to http://www.regulations.gov or to the OSHA Docket
Office at the address above. Documents in the docket are listed in the
http://www.regulations.gov index; however, some information (e.g.,
copyrighted material) is not publicly available to read or download
through this Web site. All submissions, including copyrighted material,
are available for inspection and copying at the OSHA Docket Office.
Contact the OSHA Docket Office for assistance in locating docket
submissions.
FOR FURTHER INFORMATION CONTACT: For general information and press
inquiries contact Mr. Kevin Ropp, Director, OSHA Office of
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210; telephone: (202) 693-1999. For
technical inquiries, contact Ted Twardowski, Office of Safety Systems,
Directorate of Standards and Guidance, Room N-3609, OSHA, U.S.
Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210; telephone: (202) 693-2070; fax: (202) 693-1663. Copies of this
Federal Register notice are available from the OSHA Office of
Publications, Room N-3101, U.S. Department of Labor, 200 Constitution
Avenue, NW. Washington, DC 20210; telephone (202) 693-1888. Electronic
copies of this Federal Register notice, as well as news releases and
other relevant documents, are available at OSHA's Web page at http://www.osha.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Direct Final Rulemaking
II. Background
III. Discussion of the Rulemaking
IV. Procedural Determinations
A. Legal Considerations
B. Final Economic Analysis and Regulatory Flexibility Act
Certification
C. OMB Review Under the Paperwork Reduction Act of 1995
D. Federalism
E. State-Plan States
F. Unfunded Mandates Reform Act
List of Subjects for 29 CFR Part 1910
Authority and Signature
V. Amendment to Standards
I. Direct Final Rulemaking
An agency uses direct final rulemaking when it anticipates that a
rule will be non-controversial. Examples include minor substantive
revisions to regulations and direct incorporations of mandates from new
legislation, and, as in this rulemaking, eliminating references to
industry or consensus standards. In direct final rulemaking, the agency
will publish the direct final rule in the Federal Register, along with
an identical proposed rule. The Federal Register notice states that the
direct final rule will go into effect unless it receives a significant
adverse comment within a specified period. If the agency receives any
significant adverse comments, it withdraws the direct final rule and
treats the comments as responses to the proposed rule.
For purposes of this direct final rule, a significant adverse
comment is one that explains why the various amendments being made to
OSHA's standards would be inappropriate. In determining whether a
comment necessitates withdrawal of the direct final rule, the Agency
will consider whether the comment raises an issue serious enough to
warrant a substantive response in a notice-and-comment process. OSHA
will not consider a comment recommending additional amendments to be a
significant adverse comment unless the comment states why the direct
final rule would be ineffective without the addition. If timely
significant adverse comments are received, OSHA will publish a notice
of significant adverse comment in the Federal Register withdrawing this
direct final rule no later than March 13, 2008.
OSHA also is publishing a companion proposed rule along with this
direct final rule. In the event OSHA withdraws the direct final rule
because of significant adverse comment, the Agency will proceed with
the rulemaking by addressing the comment and publishing a new final
rule. If OSHA receives a significant adverse comment regarding some actions
taken in this direct final rule, but not others, it may (1) finalize
those actions that did not receive significant adverse comment, and (2)
conduct further rulemaking under the companion proposed rule for the
actions that received significant adverse comment. The comment period
for the proposed rule runs concurrently with that of the direct final
rule. Any comments received under the companion proposed rule will be
treated as comments regarding the direct final rule. Likewise,
significant adverse comments submitted to the direct final rule will be
considered as comments to the companion proposed rule; the Agency will
consider such comments in developing a subsequent final rule.
OSHA determined that the subject of this rulemaking is suitable for
direct final rulemaking. First, OSHA's amendments to the standards do
not compromise the safety of employees. As described below, these
amendments will eliminate confusion and clarify employer obligations.
Second, the amendments will not alter employers' substantive
obligations under the existing OSHA standards and, therefore, will not
result in additional costs to employers. For these reasons, OSHA does
not anticipate receiving objections from the public.
II. Background
As discussed in a previous Federal Register notice (69 FR 68283),
the Agency is undertaking a long-term project to update its standards
to reflect the latest versions of consensus and industry standards.
This project includes updating or revoking consensus standards
incorporated by reference, and updating regulatory text of current
rules that OSHA adopted directly from the language of outdated
consensus and industry standards.
This long-term project also includes updating a number of OSHA
standards adopted in part from outdated consensus standards, such as
rulemakings to update 29 CFR part 1910, subpart S ("Electrical"), 29
CFR part 1926, subpart V ("Electric Power Transmission, and
Distribution"), 29 CFR 1910.109 ("Explosives and Blasting Agents"),
and 29 CFR part 1910, subpart D ("Walking-Working Surfaces").
In this direct final rule, which is another step in this long-term
project, the Agency is performing two main actions. First, it is
removing a number of references to outdated consensus standards that
have requirements that duplicate, or are comparable to, the
requirements specified by other OSHA rules. The Agency believes these
references are unnecessary, and only confuse employers about their
compliance obligations. Second, the Agency is removing a reference to
American Welding Society ("AWS") standard A3.0-1969 ("Terms and
Definitions") in OSHA's general-industry welding standards. These
actions are described more fully below.
III. Discussion of the Rulemaking
A. Removing or Replacing References to "Duplicative" Consensus
Standards
In this direct final rule, the Agency is removing from its
standards references to consensus standards that duplicate, or are
comparable to, requirements found in other OSHA rules. For example,
OSHA's standard regulating manlifts requires guardrails with toeboards
to meet the requirements of ANSI 12.1-1967 (Safety Requirements for
Floor and Wall Openings, Railings, and Toeboards). The provisions of
this ANSI standard, however, are identical to the requirements found in
29 CFR 1910.23. Therefore, it is unnecessary for employers and
employees to refer to the ANSI standard--which is 40 years old and
difficult to obtain--when they could refer instead to another OSHA
standard for the applicable requirements.
Some of these "duplicative" references are also incorporated into
the OSHA standards as non-mandatory sources of information, rather than
mandatory requirements. For example, the provisions of OSHA's
ventilation standard (29 CFR 1910.94) specify requirements for spray-
finishing operations. See 29 CFR 1910.94(c). Some of these provisions
cross-reference requirements in 29 CFR 1910.107 relating to spray-
finishing and flammable and combustible liquids; they also include a
non-mandatory reference to sections of a 1969 National Fire Protection
Association (NFPA) standard for "Spray Finishing Using Flammable and
Combustible Materials." Paragraph (c)(1)(ii) of the OSHA's ventilation
standard, for instance, states:
Spray booth. Spray booths are defined and described in Sec.
1910.107(a). (See sections 103, 104, and 105 of the Standard for
Spray Finishing Using Flammable and Combustible Materials, NFPA No.
33-1969, which is incorporated by reference as specified in Sec.
1910.6).
The requirements in 29 CFR 1910.107(a) and Sections 103, 104, and
105 of NFPA No. 33-1969 are essentially identical. NFPA No. 33-1969 was
the source standard for 29 CFR 1910.107, and OSHA referenced it to
provide employers with additional, but non-mandatory, information on
spray-finishing operations. As the OSHA requirements and the NFPA
provisions are virtually identical, and because the reference to the
NFPA standard is non-mandatory, it is unnecessary to reference the NFPA
provisions in the OSHA standard.
Retaining "duplicative" references is unnecessary, and may
confuse the regulated community. In determining compliance obligations
in OSHA standards that contain references to consensus standards,
employers and employees must carefully examine the consensus standards
to identify relevant provisions. Many of these consensus standards are
difficult to locate. A number are over 30 years old, and, consequently,
are no longer available for direct purchase from the standards-
development organizations that issued them. For example, employers must
submit a special request to the NFPA library to obtain a copy of NFPA
No. 33-1969 (mentioned in the previous paragraph), while ANSI Z48.1-54
and Z48-54 (R 70), which address marking portable compressed-gas
cylinders, are no longer available from ANSI and must be obtained from
other vendors. While consensus standards incorporated by reference in
OSHA standards are available for inspection at the Agency's docket
office in Washington, DC, its regional offices, and the National
Archives and Records Administration, these venues are not convenient
for many employers and employees. Referencing these outdated consensus
standards places an unnecessary burden on employers and employees when
comparable provisions are readily accessible in other OSHA standards
that will enable them to ascertain compliance obligations.
Through this rulemaking, the Agency is removing references to the
"duplicative" consensus standards altogether, or replacing them with
cross-references to the existing OSHA standards that have requirements
that are essentially identical to the consensus standards. Table 1
below lists: the OSHA standards that reference the consensus standards;
the designations and titles of the consensus standards referenced by
these OSHA standards and the OSHA standards that are comparable to the
consensus standards; the action the Agency is taking in this direct
final rulemaking (e.g., removing the consensus standard); and any
comments about this action.
Table 1
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Reference consensus
standards and
OSHA standards comparable OSHA Action taken Comment
standards
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1910.68(b)(4) and (b)(8)(ii)......... ANSI A12.1-1967--Safety Remove the reference to The provisions in the
Requirements for Floor the ANSI standard in OSHA standard and the
and Wall Openings, both OSHA standards. consensus standard are
Railings, and identical.
Toeboards.
1910.23................
1910.94(b)(5)(i)(a).................. ANSI B7.1-1970--Safety Remove the reference to The provisions in the
Code for the Use, the ANSI standard and OSHA standard and the
Care, and Protection replace it with a cite consensus standard are
of Abrasive Wheels to 1910.215, Tables O- identical.
(Tables 5 and 6 1 and O-9.
contain structural-
strength
specifications for
hoods).
1910.94(c)(1)(ii).................... NFPA No. 33-1969-- Remove the reference to The provisions in the
Standard for Spray the NFPA standard. OSHA standard and the
Finishing Using consensus standard are
Flammable and identical. In
Combustible Materials addition, the
(Sections 103, 104, reference to the
and 105). consensus standard is
1910.107(a)............ non-mandatory.
1910.94(c)(3)(i)..................... NFPA No. 33-196-- Remove the reference to Except for section 301
Standard for Spray the NFPA standard. of the NFPA standard,
Finishing Using the provisions in the
Flammable and OSHA standard and the
Combustible Materials NFPA standard are
(Sections 301-304, 306- identical. Section 301
310). of the NFPA standard
1910.107(b)(1)-(b)(4) specifies that spray
and (b)(6)-(b)(10).. booths constructed of
steel must use steel
that is at least No.
18 gauge U.S., while
1910.107(b)(1)
contains no such
provision. However,
both the OSHA standard
and the NFPA standard
require that spray
booths be
"substantially
constructed" of
steel. OSHA notes it
is the usual and
customary practice in
the industry to use
steel that is at least
this thick. In
addition, the
reference to the
consensus standard is
non-mandatory.
1910.94(c)(3)(i)(a).................. NFPA No. 33-1969-- Remove the reference to Except for a few minor
Standard for Spray the NFPA standard. differences between
Finishing Using the provisions of
Flammable and Chapter 4 of the NFPA
Combustible Materials standard and the
(Section 310 and comparable OSHA
Chapter 4). standard, the
1910.107(b)(10) and provisions in the OSHA
(c).. standard and the
consensus standard are
identical. In
addition, the
reference to the
consensus standard is
non-mandatory.
1910.94(c)(3)(iii)................... NFPA No. 33-1969-- Remove the reference to The provisions in the
Standard for Spray the NFPA standard. OSHA standard and the
Finishing Using consensus standard are
Flammable and identical. In
Combustible Materials addition, the
(Sections 304 and 305). reference to the
1910.107(b)(4) and consensus standard is
(b)(5).. non-mandatory.
1910.94(c)(3)(iii)(a)................ NFPA No. 33-1969-- Remove the reference to The provisions in the
Standard for Spray the NFPA standard. OSHA standard and the
Finishing Using consensus standard are
Flammable and identical. In
Combustible Materials addition, the
(Section 305). reference to the
1910.107(b)(5)......... consensus standard is
non-mandatory.
1910.94(c)(5)(i)..................... NFPA No. 33-1969-- Remove the reference to The provisions in the
Standard for Spray the NFPA standard. OSHA standard and the
Finishing Using consensus standard are
Flammable and identical. In
Combustible Materials addition, the
(Chapter 5). reference to the
1910.107(d)............ consensus standard is
non-mandatory.
[[Page 71065]]
1910.94(c)(5)(iii)(e)................ ANSI Z9.1-1951--Safety Remove the reference to OSHA could find no
Code for Ventilation the ANSI standard. Section 8.3.21 in the
and Operation of Open ANSI standard and,
Surface Tanks (Section therefore, is removing
8.3.21). the non-mandatory
1910.94(c)(5)(iii)(e).. reference to ANSI Z9.1-
1951 from
1910.94(c)(5)(iii)(e).
1910.103(b)(1)(i)(c), ANSI Z48.1-1954--Method Remove the reference to The requirements in the
.110(b)(5)(iii), and .111(e)(1). of Marking Portable the ANSI standard and OSHA standard and the
Compressed Gas replace it with a cite consensus standard are
Containers to Identify to paragraph virtually identical.
the Material Contained (b)(1)(ii) of 1910.253. Paragraph 3.2 of the
(Section 3 specifies ANSI standard requires
the means for marking that, when practical,
gas cylinders). "the marking shall be
1910.253(b)(1)(ii)..... at the valve end and
off the cylindrical
part of the body,"
while
1910.253(b)(1)(ii)
identifies the
shoulder as the
location for the
marking (when
practical); these
requirements describe
the same cylinder
location. Also,
paragraph 3.3 of the
ANSI standard
specifies the height
of the lettering;
1910.253(b)(1)(ii)
contains no specific
height requirements.
The Agency has
determined that the
ANSI provision is
unnecessary because
the OSHA standard
requires that the
markings be
"legible," which
ensures that employees
can accurately
identify the contents
of the cylinders.
1910.144(a)(1)(ii)................... ANSI A10.2-1944--Safety Remove the reference to The OSHA standard and
Code for Building the ANSI standard. the referenced
Construction consensus standard
(paragraph 1.6.2 have similar
addresses the use of requirements. The OSHA
red lights with standard requires that
barricades). red lights be provided
1910.144(a)(1)(ii)..... "at barricades and at
temporary
obstructions," while
paragraph 1.6.2 of the
referenced ANSI
standard requires
employers to place red
lights or flares on or
about barricades after
dark. OSHA has
determined that
removing the reference
to the 60-year old
ANSI standard is
appropriate given the
requirements of
1910.144(a)(1)(ii) and
the usual and
customary practice of
the industry.
[[Page 71066]]
1910.243(d)(1)(i).................... ANSI A10.3-1970--Safety Remove the reference to The provisions in the
Requirements for the ANSI standard and OSHA standard and the
Explosive-Actuated replace it with a cite consensus standard are
Fastening Tools to the design identical, except that
(Section 3 specifies requirements specified paragraph (d)(2) of
design requirements). by 1910.243(d)(2). 1910.243 does not
1910.243(d)(2)......... contain provisions for
the construction of
high-velocity tools,
low-velocity piston
tools, and hammer-
operated piston tools
specified in ANSI
paragraphs 3.1.5,
3.2.5, and 3.3.5,
respectively--i.e.,
that these tools must
have adequate strength
to withstand the
stresses imposed by
any commercially
available load that
will chamber in the
tool. These provisions
do not relate directly
to guarding explosive-
actuated tools, which
is the purpose of the
OSHA standard.
Furthermore, OSHA
notes it is the usual
and customary practice
in the industry to
design tools with
adequate strength to
withstand the stresses
imposed by
commercially available
loads.
1910.253(b)(1)(ii)................... ANSI Z48.1-1954--Method Remove the reference to See the comments above
of Marking Portable the ANSI standard. under the entry for
Compressed Gas 1910.103(b)(1)(i)(c),
Containers to Identify .110(b)(5)(iii), and
the Material Contained. .111(e)(1).
1910.253(b)(1)(ii).....
1910.261(c)(15)(ii), (e)(4), ANSI A12.1-1967--Safety Remove the reference to The provisions in the
(g)(13)(i), (h)(1), (j)(4)(iii), Requirements for Floor the ANSI standards in OSHA standard and
(j)(5)(i), (k)(6), (k)(13)(i), and and Wall Openings, the OSHA standards and consensus standard are
(k)(15). Railings, and replace them with a identical.
Toeboards. cite to 1910.23.
1910.23................
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The Agency believes that removing these consensus standards, or
replacing them with cross-references to other OSHA standards, will not
alter existing compliance obligations or reduce employee protection.
Employers need not alter their current practices as a result of this
rulemaking action, and employees will receive the same level of
protection they did prior to this rulemaking. The Agency welcomes
comment from the public regarding the effects this rulemaking may have
on employers' compliance obligations and employee protection.
B. Technical Amendment
In addition to the actions described above, OSHA is amending
paragraph (c)(1)(iv) of its spray-finishing standard at 29 CFR
1910.107. This paragraph incorrectly refers to the requirements for
powder-coating equipment in "paragraph (c)(1) of this section."
However, paragraph (l)(1) of 29 CFR 1910.107 specifies the requirements
for powder-coating equipment. With this amendment, 29 CFR
1910.107(c)(1)(iv) will identify the correct provision for regulating
powder-coating equipment.
C. Welding Definitions
In this direct final rule, OSHA also is removing the reference to
American Welding Society ("AWS") standard A3.0-1969 ("Terms and
Definitions") in paragraph (c) of 29 CFR 1910.251 ("Definitions").
Paragraph 29 CFR 1910.251(c) states "All other welding terms are used
in accordance with American Welding Society--Terms and Definitions--
A3.0-1969, which is incorporated by reference as specified in Sec.
1910.6." The purpose of the definitions is to assist employers and
employees in understanding the technical terms used in these OSHA
standards; sections 29 CFR 1910.252-255 specify the substantive
obligations for employers to follow when performing welding, cutting,
and brazing operations.
OSHA analyzed the terms defined in the 1969 AWS standard, as well
as the terms defined in the 2001 version of that standard. (OSHA placed
this analysis in the docket for this rulemaking as Ex. OSHA-2007-0040-
0002). Based on this analysis, the Agency determined that the terms
defined in the 1969 AWS standard that are found in OSHA's welding
standard are substantially similar to the definitions of these terms
found in the 2001 AWS standard. Furthermore, the welding terms used are
commonly understood in the industry. For example, some of the welding
terms used are such basic technical terms as "arc welding,"
"electrode," "flux," "flash welding," "lead burning," "inert
gas," and "oxygen cutting." After over 35 years of experience with
these terms, employers and employees performing welding, cutting, and
brazing operations understand their meaning when applying the
substantive requirements in 29 CFR 1910.252-1910.255. Continuing to
reference the 1969 AWS standard is unnecessary, and OSHA is removing it
from 29 CFR 1910.251. Employers and employees know the meaning of the
terms used in the OSHA standard, and requiring employers to obtain and
consult AWS 3.0-1969 places an unnecessary burden on them.
Removing the reference will not affect employers' substantive
obligations under 29 CFR part 1910, subpart Q, nor will it compromise
the safety of employees when they perform the welding, cutting, and
brazing operations regulated under 29 CFR 1910.252-1910.255. In fact,
removing the reference will bring the general industry standard in line
with the standards regulating welding, cutting, and heating operations
for the shipyard-employment industry (29 CFR part 1915, subpart D) and
welding and cutting operations for the construction industry (29 CFR
part 1926, subpart J). These standards do not define the technical
welding terms used. OSHA is not aware of any employee-protection
problems resulting from the absence of definitions in these standards.
The Agency invites the public to comment on its findings regarding
employers' obligations and employee safety.
IV. Procedural Determinations
A. Legal Considerations
The purpose of the Occupational Safety and Health Act of 1970, 29
U.S.C. 651 et seq., is "to assure so far as possible every working man
and woman in the nation safe and healthful working conditions and to
preserve our human resources." 29 U.S.C. 651(b). To achieve this goal,
Congress authorized the Secretary of Labor to promulgate and enforce
occupational safety and health standards. 29 U.S.C. 655(b), 654(b). A
safety or health standard is a standard that "requires conditions, or
the adoption or use of one or more practices, means, methods,
operations, or processes, reasonably necessary or appropriate to
provide safe or healthful employment or places of employment." 29
U.S.C. 652(8). A standard is reasonably necessary or appropriate within
the meaning of Section 652(8) when a significant risk of material harm
exists in the workplace and the standard would substantially reduce or
eliminate that workplace risk.
This direct final rule will not reduce the employee protections put
into place by the standards being amended. In fact, it will enhance
employee safety by eliminating confusing requirements and clarifying
employer obligations. Therefore, it is unnecessary to determine
significant risk, or the extent to which the rule would reduce that
risk, as typically would be required by Industrial Union Department,
AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980).
B. Final Economic Analysis and Regulatory Flexibility Act Certification
This direct final rule is not economically significant within the
context of Executive Order ("E.O.") 12866 (58 FR 51735) or a "major
rule" under Section 804 of the Small Business Regulatory Enforcement
Fairness Act of 1996 ("SBREFA"; 5 U.S.C. 804). The rule will impose
no additional costs on any private- or public-sector entity, and does
not meet any of the criteria for an economically significant rule or a
major rule specified by E.O. 12866 or the relevant statutes. (While not
economically significant, as part of OSHA's consensus standards update
project, this direct final rule is classified as a "significant
regulatory action" under E.O. 12866.)
This action simply (1) removes, or replaces with cross-references,
unnecessary references to consensus standards, and (2) removes a
reference to American Welding Society standard A3.0-1969 in OSHA's
general-industry welding standards. The rulemaking does not impose any
additional costs on employers. Therefore, OSHA certifies that it will
not have a significant impact on a substantial number of small
entities, and that the Agency does not have to prepare a regulatory
flexibility analysis for this rulemaking under the SBREFA (5 U.S.C. 601
et seq.).
C. OMB Review Under the Paperwork Reduction Act of 1995
The existing provisions of the OSHA standards addressed by this
direct final rule do not contain collection-of-information
requirements, nor do the amended provisions to the standards
implemented by this rulemaking contain collection-of-information
requirements. Therefore, this direct final rule does not impose remove
or revise any information-collection requirements for purposes of the
Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. and 5 CFR part
1320. Accordingly, the Agency does not have to prepare an Information
Collection Request in association with this rulemaking.
Members of the public who wish to comment on these determinations
must send their written comments to the Office of Information and
Regulatory Affairs, Attn: OSHA Desk Officer (RIN 1218-AC08), Office of
Management and Budget, Room 10235, 725 17th Street NW., Washington, DC
20503. The Agency encourages commenters to also submit their comments
to the rulemaking docket, along with their comments on other parts of
the direct final rule. For instructions on submitting these comments
and accessing the docket, see the sections of this Federal Register
notice titled DATES and ADDRESSES. However, no comment received on this
paperwork determination will be considered by the Agency to be a
"significant adverse comment" as specified above under Section I
("Direct Final Rulemaking").
To make inquiries, or to request other information, contact Mr.
Todd Owen, Directorate of Standards and Guidance, OSHA, Room N-3609,
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210; telephone (202) 693-2222.
D. Federalism
OSHA reviewed this direct final rule in accordance with the
Executive Order on Federalism (Executive Order 13132, 64 FR 43255,
August 10, 1999), which requires that Federal agencies, to the extent
possible, refrain from limiting State policy options, consult with
States prior to taking any actions that would restrict State policy
options, and take such actions only when clear constitutional authority
exists and the problem is national in scope. Executive Order 13132
provides for preemption of State law only with the expressed consent of
Congress. Any such preemption is to be limited to the extent possible.
Under Section 18 of the Occupational Safety and Health Act of 1970
("OSH Act"; 29 U.S.C. 651 et seq.), Congress expressly provides for
the preemption of State laws when OSHA promulgates occupational safety
and health standards. Under the OSH Act, a State can avoid preemption
on issues covered by Federal standards only if it submits, and obtains
Federal approval of, a plan for the development of such standards and
their enforcement ("State-Plan State"). 29 U.S.C. 667. Occupational
safety and health standards developed by State-Plan States must be at
least as effective in providing safe and healthful employment and
places of employment as the Federal standards. Subject to these
requirements, State-Plan States are free to develop and enforce under
State law their own requirements for safety and health standards.
This direct final rule complies with Executive Order 13132. In
States without OSHA-approved State Plans, Congress expressly provides
for OSHA standards to preempt State job safety and health rules in
areas addressed by OSHA standards; in these States, this direct final
rule limits State policy options in the same manner as all OSHA
standards. In States with OSHA-approved State Plans, this rulemaking
does not significantly limit State policy options.
E. State-Plan States
When Federal OSHA promulgates a new standard or more stringent
amendment to an existing standard, the 26 States and U.S. Territories
with their own OSHA-approved occupational safety and health plans
("State-Plan States") must amend their standards to reflect the new
standard or amendment, or show OSHA why such action is unnecessary,
e.g., because an existing State standard covering this area is "at
least as effective" as the new Federal standard or amendment. 29 CFR
1953.5(a). The State standard must be at least as effective as the
final Federal rule, must be applicable to both the private and public
(State and local government employees) sectors, and must be completed
within six months of the publication date of the final Federal rule.
When OSHA promulgates a new standard or amendment that does not impose
additional or more stringent requirements than an existing standard,
State-Plan States are not required to amend their standards, although
the Agency may encourage them to do so. The 26 States and U.S.
Territories with OSHA-approved occupational safety and health plans
are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky,
Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina,
Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont,
Virginia, Washington, and Wyoming; Connecticut, New Jersey, New York,
and the Virgin Islands have OSHA-approved State Plans that apply to
State and local government employees only.
With regard to this direct final rule, it will not impose any
additional or more stringent requirements on employers compared to
existing OSHA standards. Through this rulemaking, the Agency is
removing several references to consensus standards that contain
requirements that also are expressly included in other OSHA standards.
The Agency also is removing a reference to an American Welding Society
standard. Therefore, States and Territories with approved State-Plans
do not need to adopt this rule or show OSHA why such action is
unnecessary. However, to the extent these States and Territories have
the same standards as the OSHA standards affected by this direct final
rule, OSHA encourages them to adopt the amendments.
F. Unfunded Mandates Reform Act
OSHA reviewed this direct final rule according to the Unfunded
Mandates Reform Act of 1995 ("UMRA"; 2 U.S.C. 1501 et seq.) and
Executive Order 12875 (58 FR 58093). As discussed above in Section IV.B
("Economic Analysis and Regulatory Flexibility Certification") of
this preamble, the Agency determined that this direct final rule
imposes no additional costs on any private- or public-sector entity.
Accordingly, this direct final rule requires no additional expenditures
by either public or private employers.
As noted above under Section IV.E ("State-Plan States"), the
Agency's standards do not apply to State and local governments except
in States that have elected voluntarily to adopt a State Plan approved
by the Agency. Consequently, this direct final rule does not meet the
definition of a "Federal intergovernmental mandate" (see Section
421(5) of the UMRA (2 U.S.C. 658(5))). Therefore, for the purposes of
the UMRA, the Agency certifies that this direct final rule does not
mandate that State, local, or tribal governments adopt new, unfunded
regulatory obligations, or increase expenditures by the private sector
of more than $100 million in any year.
List of Subjects for 29 CFR Part 1910
General industry, Health, Occupational safety and health, Safety,
Welding.
Authority and Signature
Edwin G. Foulke, Jr., Assistant Secretary of Labor for Occupational
Safety and Health, U.S. Department of Labor, 200 Constitution Avenue,
NW., Washington, DC 20210, directed the preparation of this direct
final rule. The Agency is issuing this rule under Sections 4, 6, and 8
of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657), Secretary of Labor's Order 5-2007 (72 FR 31159), and 29 CFR part
1911.
Signed at Washington, DC, on Friday, December 7, 2007.
Edwin G. Foulke, Jr.,
Assistant Secretary of Labor for Occupational Safety and Health.
V. Amendments to Standards
0
For the reasons stated in the preamble, OSHA is amending 29 CFR part
1910 to read as follows:
PART 1910--[AMENDED]
Subpart A--[Amended]
0
1. Revise the authority citation for subpart A of part 1910 to read as
follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017),
or 5-2007 (72 FR 31159), as applicable.
Section 1910.6 also issued under 5 U.S.C. 553. Sections 1910.6,
1910.7, and 1910.8 also issued under 29 CFR Part 1911. Section
1910.7(f) also issued under 31 U.S.C. 9701, 29 U.S.C. 9a, 5 U.S.C.
553; Pub. L. 106-113 (113 Stat. 1501A-222); and OMB Circular A-25
(dated July 8, 1993) (58 FR 38142, July 15, 1993).
0
2. In Sec. 1910.6:
0
a. Remove and reserve paragraphs (e)(1), (e)(2), (e)(5), (e)(62), and
(e)(63), and (i)(1).; and
0
b. Revise paragraphs (e)(15), (e)(49), and (q)(3) to read as follows:
Sec. 1910.6 Incorporation by reference.
* * * * *
(e) * * *
(15) ANSI B7.1-70 Safety Code for the Use, Care and Protection of
Abrasive Wheels, IBR approved for Sec. Sec. 1910.215(b)(12) and
1910.218(j).
* * * * *
(49) ANSI Z9.1-51 Safety Code for Ventilation and Operation of Open
Surface Tanks, IBR approved for 1910.261(a)(3)(xix), (g)(18)(v), and
(h)(2)(i).
* * * * *
(q) * * *
(3) NFPA 33-1969 Standard for Spray Finishing Using Flammable and
Combustible Material, IBR approved for Sec. 1910.94(c)(2).
* * * * *
Subpart F--[Amended]
0
3-4. Revise the authority citation for subpart F of part 1910 to read
as follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), 1-90 (55 FR 9033), or 5-2007 (72 FR 31159), as applicable;
and 29 CFR Part 1911.
0
5. Revise paragraphs (b)(4) and (b)(8)(ii) of Sec. 1910.68 to read as
follows:
Sec. 1910.68 Manlifts.
* * * * *
(b) * * *
(4) Reference to other codes and subparts. The following codes and
subparts of this part are applicable to this section: Safety Code for
Mechanical Power Transmission Apparatus, ANSI B15.1-1953 (R 1958);
Safety Code for Fixed Ladders, ANSI A14.3-1956; and subparts D, O, and
S. The preceding ANSI standards are incorporated by reference as
specified in Sec. 1910.6.
* * * * *
(8) * * *
(ii) Construction. The rails shall be standard guardrails with
toeboards meeting the provisions of Sec. 1910.23.
* * * * *
Subpart G--[Amended]
0
6. Revise the authority citation for subpart G of part 1910 to read as
follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), or 5-2007 (72 FR
31159), as applicable; and 29 CFR Part 1911.
Section 1910.94 also issued under 5 U.S.C. 553.
0
7. Revise paragraphs (b)(5)(1)(a), (c)(1)(ii), (c)(3)(i) introductory
text, (c)(3)(i)(a), (c)(3)(iii) introductory text, (c)(3)(iii)(a),
(c)(5)(i) introductory text, and (c)(5)(iii)(e) of Sec. 1910.94 to
read as follows:
Sec. 1910.94 Ventilation.
* * * * *
(b) * * *
(5) * * *
(i)(a) It is the dual function of grinding and abrasive cutting-off
wheel hoods to protect the operator from the hazards of bursting
wheels, as well as to provide a means for the removal of dust and dirt
generated. All hoods shall be not less in structural strength than
specified in Tables O-1 and O-9 of Sec. 1910.215.
* * * * *
(c) * * *
(1) * * *
(ii) Spray booth. Spray booths are defined and described in Sec.
1910.107(a).
* * * * *
(3) * * *
(i) Spray booths shall be designed and constructed in accordance
with Sec. 1910.107(b)(1) through (b)(4) and (b)(6) through (b)(10).
For a more detailed discussion of fundamentals relating to this
subject, see ANSI Z9.2-1960, which is incorporated by reference as
specified in Sec. 1910.6.
(a) Lights, motors, electrical equipment, and other sources of
ignition shall conform to the requirements of Sec. 1910.107(b)(10) and
(c).
* * * * *
(iii) Baffles, distribution plates, and dry-type overspray
collectors shall conform to the requirements of Sec. 1910.107(b)(4)
and (b)(5).
(a) Overspray filters shall be installed and maintained in
accordance with the requirements of Sec. 1910.107(b)(5), and shall
only be in a location easily accessible for inspection, cleaning, or
replacement.
* * * * *
(5) * * *
(i) Ventilation shall be provided in accordance with provisions of
Sec. 1910.107(d), and in accordance with the following:
* * * * *
(iii) * * *
(e) Inspection or clean-out doors shall be provided for every 9 to
12 feet of running length for ducts up to 12 inches in diameter, but
the distance between cleanout doors may be greater for larger pipes. A
clean-out door or doors shall be provided for servicing the fan, and
where necessary, a drain shall be provided.
* * * * *
Subpart H--[Amended]
0
8. Revise the authority citation for subpart H of part 1910 to read as
follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017),
or 5-2007 (72 FR 31159), as applicable; and 29 CFR part 1911.
Sections 1910.103, 1910.106 through 1910.111, and 1910.119,
1910.120, and 1910.122 through 1910.126 also issued under 29 CFR
part 1911.
Section 1910.119 also issued under Section 304, Clean Air Act
Amendments of 1990 (Pub. L. 101-549), reprinted at 29 U.S.C. 655
Note.
Section 1910.120 also issued under Section 126, Superfund
Amendments and Reauthorization Act of 1986 as amended (29 U.S.C. 655
Note), and 5 U.S.C. 553.
0
9. Revise paragraph (b)(1)(i)(C) of Sec. 1910.103 to read as follows:
Sec. 1910.103 Hydrogen.
* * * * *
(b) * * *
(1) * * *
(i) * * *
(c) Each portable container shall be legibly marked with the name
"Hydrogen" in accordance with the marking requirements set forth in
Sec. 1910.253(b)(1)(ii). Each manifolded hydrogen supply unit shall be
legibly marked with the name "Hydrogen" or a legend such as "This
unit contains hydrogen."
* * * * *
0
10. Revise paragraph (c)(1)(iv) of Sec. 1910.107 to read as follows:
Sec. 1910.107 Spray finishing using flammable and combustible
materials.
* * * * *
(c) * * *
(1) * * *
* * * * *
(vi) Powder-coating equipment shall conform to the requirements of
paragraph (l)(1) of this section.
* * * * *
0
11. Amend paragraph (b)(5)(iii) of Sec. 1910.110 to read as follows:
Sec. 1910.110 Storage and handling of liquid petroleum gases.
* * * * *
(b) * * *
(5) * * *
(iii) When LP-Gas and one or more other gases are stored or used in
the same area, the containers shall be marked to identify their
content. Marking shall conform to the marking requirements set forth in
Sec. 1910.253(b)(1)(ii).
* * * * *
0
12. Revise paragraph (e)(1) of Sec. 1910.111 to read as follows:
Sec. 1910.111 Storage and handling of anhydrous ammonia.
* * * * *
(e) * * *
(1) Conformance. Cylinders shall comply with DOT specifications and
shall be maintained, filled, packaged, marked, labeled, and shipped to
comply with 49 CFR chapter I and the marking requirements set forth in
Sec. 1910.253(b)(1)(ii).
* * * * *
Subpart J--[Amended]
0
13. Revise the authority citation for subpart J of part 1910 to read as
follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017),
or 5-2007 (72 FR 31159), as applicable.
Sections 1910.141, 1910.142, 1910.145, 1910.146, and 1910.147
also issued under 29 CFR part 1911.
0
14. Revise paragraph (a)(1)(ii) of Sec. 1910.144 to read as follows:
Sec. 1910.144 Safety color code for marking physical hazards.
(a) * * *
(1) * * *
(ii) Danger. Safety cans or other portable containers of flammable
liquids having a flash point at or below 80[deg] F, table containers of
flammable liquids (open cup tester), excluding shipping containers,
shall be painted red with some additional clearly visible
identification either in the form of a
[[Page 71070]]
yellow band around the can or the name of the contents conspicuously
stenciled or painted on the can in yellow. Red lights shall be provided
at barricades and at temporary obstructions. Danger signs shall be
painted red.
* * * * *
Subpart P--[Amended]
0
15. Revise the authority citation for subpart P of part 1910 to read as
follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), 1-90 (55 FR 9033), or 5-2007 (72 FR 31159), as applicable;
29 CFR part 1911.
Section 1910.243 also issued under 29 CFR part 1910.
0
16. Revise paragraph (d)(1)(i) of Sec. 1910.243 to read as follows:
Sec. 1910.243 Guarding of portable powered tools.
* * * * *
(d) * * *
(1) * * *
(i) Explosive-actuated fastening tools that are actuated by
explosives or any similar means, and propel a stud, pin, fastener, or
other object for the purpose of affixing it by penetration to any other
object shall meet the design requirements specified by paragraph (d)(2)
of this section. This requirement does not apply to devices designed
for attaching objects to soft construction materials, such as wood,
plaster, tar, dry wallboard, and the like, or to stud-welding
equipment.
* * * * *
Subpart Q--[Amended]
0
17. Revise the authority citation for subpart Q of part 1910 to read as
follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, and 657); Secretary of
Labor's Orders Nos. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48
FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR
50017), or 5-2007 (72 FR 31159), as applicable; and 29 CFR part
1911.
Sec. 1910.251 [Amended]
0
18. Remove paragraph (c) of Sec. 1910.251.
0
19. Revise paragraph (b)(1)(ii) of Sec. 1910.253 to read as follows:
Sec. 1910.253 Oxygen-fuel gas welding and cutting.
* * * * *
(b) * * *
(1) * * *
(ii) Compressed gas cylinders shall be legibly marked, for the
purpose of identifying the gas content, with either the chemical or the
trade name of the gas. Such marking shall be by means of stenciling,
stamping, or labeling, and shall not be readily removable. Whenever
practical, the marking shall be located on the shoulder of the
cylinder.
* * * * *
Subpart R--[Amended]
0
20. Revise the authority citation for subpart R of part 1910 to read as
follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order Nos. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), or 5-2007 (72 FR
31159), as applicable; and 29 CFR part 1911.
0
21. Revise paragraphs (c)(15)(ii), (e)(4), (g)(13)(i), (h)(1),
(j)(4)(iii), (j)(5)(i), (k)(6), (k)(13)(i), and (k)(15) of Sec.
1910.261 to read as follows:
Sec. 1910.261 Pulp, paper, and paperboard mills.
* * * * *
(c) * * *
(15) * * *
(ii) Where conveyors cross passageways or roadways, a horizontal
platform shall be provided under the conveyor extending out from the
sides of the conveyor a distance equal to 1.5 times the length of the
wood handled. The platform shall extend the width of the road plus 2
feet on each side, and shall be kept free of wood and rubbish. The
edges of the platform shall be provided with toeboards or other
protection to prevent wood from falling, in accordance with Sec.
1910.23.
* * * * *
(e) * * *
(4) Runway to the jack ladder. The runway from the pond or
unloading dock to the table shall be protected with standard handrails
and toeboards. Inclined portions shall have cleats or equivalent
nonslip surfacing in accordance with Sec. 1910.23. Protective
equipment shall be provided for persons working over water.
* * * * *
(g) * * *
(13) * * *
(i) Blowpit openings shall be preferably on the side of the pit
instead of on top. When located on top, openings shall be as small as
possible and shall be provided with railings in accordance with Sec.
1910.23.
* * * * *
(h) * * *
(1) Bleaching engines. Bleaching engines, except the Bellmer type,
shall be completely covered on the top, with the exception of one small
opening large enough to allow filling, but too small to admit a person.
Platforms leading from one engine to another shall have standard
guardrails in accordance with Sec. 1910.23.
* * * * *
(j) * * *
(4) * * *
(iii) When beaters are fed from a floor above, the chute opening,
if less than 42 inches from the floor, shall be provided with a
complete rail or other enclosure. Openings for manual feeding shall be
sufficient only for entry of stock, and shall be provided with at least
two permanently secured crossrails in accordance with Sec. 1910.23.
* * * * *
(5) * * *
(i) All pulpers having the top or any other opening of a vessel
less than 42 inches from the floor or work platform shall have such
openings guarded by railed or other enclosures. For manual charging,
openings shall be sufficient to permit the entry of stock, and shall be
provided with at least two permanently secured crossrails in accordance
with Sec. 1910.23.
* * * * *
(k) * * *
(6) Steps. Steps of uniform rise and tread with nonslip surfaces
shall be provided at each press in accordance with Sec. 1910.23.
* * * * *
(13) * * *
(i) A guardrail shall be provided at broke holes in accordance with
Sec. 1910.23.
* * * * *
(15) Steps. Steps or ladders of uniform rise and tread with nonslip
surfaces shall be provided at each calendar stack. Handrails and hand
grips shall be provided at each calendar stack in accordance with Sec.
1910.23.
* * * * *
[FR Doc. E7-24181 Filed 12-13-07; 8:45 am]
BILLING CODE 4510-26-P
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