[Federal Register: November 24, 2004 (Volume 69, Number 226)]
[Rules and Regulations]
[Page 68712-68717]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24no04-11]
[[Page 68712]]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. S-023A]
RIN 1218-AC08
Updating OSHA Standards Based On National Consensus Standards;
General, Incorporation by Reference; Hazardous Materials, Flammable and
Combustible Liquids; General Environmental Controls, Temporary Labor
Camps; Hand and Portable Powered Tools and Other Hand Held Equipment,
Guarding of Portable Powered Tools; Welding, Cutting, and Brazing, Arc
Welding and Cutting; Special Industries, Sawmills
AGENCY: Occupational Safety and Health Administration (OSHA); Labor.
ACTION: Direct final rule.
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SUMMARY: OSHA is issuing this direct final rule to delete from OSHA
standards three references to national consensus standards and two
references to industry standards that are outdated. Deleting these
references will not reduce employee protections. By eliminating the
outdated references, however, OSHA will clarify employer obligations
under the applicable OSHA standards and reduce administrative burdens
on employers and OSHA. These revisions are part of OSHA's overall
effort--also explained in today's Federal Register--to update OSHA
standards that reference, or that include language taken directly from,
outdated consensus standards.
DATES: This direct final rule will become effective on February 22,
2005, unless significant adverse comment is received by December 27,
2004. If significant adverse comment is received, OSHA will publish a
timely withdrawal of this rule.
Comments to this direct final rule must be submitted by the
following dates:
Hard copy: Your comments must be submitted (postmarked or
sent) by December 27, 2004.
Electronic transmission and facsimile: Your comments must
be sent by December 27, 2004.
ADDRESSES: Interested persons are requested to submit written data,
views, and arguments concerning this direct final rule. You may submit
written comments to this direct final rule--identified by docket number
S-023A or RIN number 1218-AC08--by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
OSHA Web site: http://ecomments.osha.gov. Follow the
instructions for submitting comments on OSHA's web page.
Fax: If your written comments are 10 pages or fewer, you
may fax them to the OSHA Docket Office at (202) 693-1648.
Regular mail, express delivery, hand delivery and courier
service: Submit three copies to the OSHA Docket Office, Docket No. S-
023A, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-
2625, Washington, DC 20210; telephone (202) 693-2350. (OSHA's TTY
number is (877) 889-5627). OSHA Docket Office hours of operation are
8:15 a.m. to 4:45 p.m., EST.
Instructions: All comments received will be posted without change
to http://dockets.osha.gov, including any personal information
provided. OSHA cautions you about submitting personal information such
as social security numbers and birth dates.
OSHA requests comments on all issues related to this action. OSHA
also welcomes comments on the Agency's findings that there are not
negative economic or other regulatory impacts of this action on the
regulated community. If OSHA receives no significant adverse comment,
OSHA 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
changes 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.
If OSHA receives significant adverse comment on this direct final
rule, it will withdraw it and proceed with the proposed rule addressing
the same standards published in the Proposed Rules section of today's
Federal Register.
Docket: For access to the docket to read background documents or
comments received, go to http://dockets.osha.gov. Contact the OSHA
Docket Office for information about materials not available through the
OSHA webpage and for assistance in using the webpage to locate docket
submissions.
FOR FURTHER INFORMATION CONTACT: For general information and press
inquiries contact George Shaw, Acting 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, 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 or 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 webpage at http://www.osha.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Direct Final Rulemaking
II. Discussion of Revocations
III. Legal Considerations
IV. Final Economic Analysis and Regulatory Flexibility Act
Certification
V. Paperwork Reduction Act
VI. Federalism
VII. State Plan States
VIII. Unfunded Mandates Reform Act
IX. Authority and Signature
I. Direct Final Rulemaking
In direct final rulemaking, an agency publishes a final rule in the
Federal Register with a statement that, unless a significant adverse
comment is received within a specified period of time, the rule will go
into effect. An identical proposed rule is often published at the same
time. If any significant adverse comments are received, the agency
withdraws the direct final rule and treats the comments as responses to
the proposed rule. Direct final rulemaking is used where an agency
anticipates that a rule will be non-controversial. Examples include
minor substantive changes to regulations and direct incorporations of
mandates from new legislation.
For purposes of this direct final rulemaking, a significant adverse
comment is one that explains why the revocations would be
inappropriate, including challenges to OSHA's underlying premise or
approach. In determining whether a comment necessitates withdrawal of
the direct final rule, OSHA will consider whether the comment raises an
issue serious enough to warrant a substantive response in a notice and
comment process. A comment recommending additional changes will not be
considered 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
[[Page 68713]]
received, the Agency will publish a notice of significant adverse
comment in the Federal Register withdrawing this direct final rule no
later than February 22, 2005.
OSHA is also publishing a companion proposed rule, which is
essentially identical to this direct final rule. In the event the
direct final rule is withdrawn because of significant adverse comment,
OSHA intends to proceed with the rulemaking by addressing the comment
and publishing a new final rule. If a significant adverse comment is
received regarding certain revocations included in this direct final
rule, but not others, OSHA may (1) finalize those revocations that did
not receive significant adverse comment, and (2) conduct further
rulemaking under the companion proposed rule for the proposed
revocations that did receive 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 has determined that the subject of this rulemaking is suitable
for direct final rulemaking. First, OSHA's changes do not compromise
the safety of employees. As described below, OSHA's changes will
eliminate confusion and clarify employer obligations; as such, they
will enhance employee safety. Second, OSHA's changes will result in no
additional costs to employers, and may even produce cost savings.
Third, OSHA's changes are non-controversial. By revoking the references
to the outdated consensus/industry standards, OSHA is updating its
requirements in a manner that is consistent with current safety
practices, and does not reduce the safety of employees.
II. Discussion of Revocations
As explained elsewhere in today's Federal Register, OSHA is
undertaking a series of regulatory projects to update its standards to
reflect the current versions of consensus standards. These regulatory
projects will include updating or revoking consensus standards
incorporated by reference, and updating regulatory text of current OSHA
rules that were adopted directly from the language of outdated
consensus standards. This direct final rulemaking is just the first
step in OSHA's long-term effort to update or revoke references to
outdated consensus standards.
In this direct final rule OSHA is revoking references to three
national consensus standards and two industry standards.\1\ All of the
references are to standards issued over 35 years ago, and in one case
over 60 years ago. Some are no longer available to the public through
the issuing Standards Development Organization (SDO). Three of the
references have been withdrawn by their issuing SDOs and not replaced.
The reasons for OSHA's decision to revoke each of these references are
set forth below.
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\1\ The two industry standards OSHA is revoking--American
Petroleum Institute Standards No. 12A, Specification for Oil Storage
Tanks with Riveted Shells, Seventh Edition, September 1951 and
Recommended Safe Practices for Gas-Shielded Arc Welding, A6.1-1966,
American Welding Society `` are incorporated by reference in OSHA
standards on Flammable and Combustible Liquids and Welding, Cutting,
and Brazing, respectively. These two industry standards were adopted
by the Agency because they were cited in two national consensus
standards (NFPA 30-1969 and ANSI Z-49.1-1967) that served as sources
for the OSHA standards.
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The Agency has determined that revoking these references will not
reduce employee protection. OSHA has made sure that employee
protections are maintained with respect to each OSHA standard affected.
1. 29 CFR 1910.106(b)(1)(iii)(a)(2)
OSHA's standard for Flammable and Combustible Liquids, 29 CFR
1910.106, incorporates by reference an industry standard that has been
withdrawn by the issuing SDO and is no longer available to the public
through the issuing SDO. Existing 1910.106(b)(1)(iii)(a) reads in
pertinent part as follows:
(iii) Atmospheric tanks. (a) Atmospheric tanks shall be built in
accordance with acceptable good standards of design. Atmospheric
tanks may be built in accordance with the following consensus
standards that are incorporated by reference as specified in Sec.
1910.6:
* * * * *
(2) American Petroleum Institute Standards No. 12A,
Specification for Oil Storage Tanks with Riveted Shells, Seventh
Edition, September 1951, or No. 650, Welded Steel Tanks for Oil
Storage, Third Edition, 1966.
OSHA is deleting the reference to American Petroleum Institute Standard
No. 12A, Specification for Oil Storage Tanks with Riveted Shells,
Seventh Edition, September 1951 (API 12A) in 1910.106(b)(1)(iii)(a)(2).
API 12A includes design specifications for tanks with riveted
shells used for oil storage. OSHA incorporated API 12A into 29 CFR
1910.106 because it was referenced in NFPA 30-1969, which served as one
of the sources for the standard. API 12A was withdrawn in 1974. The
issuing SDO has not replaced it and has not incorporated its provisions
into another consensus standard. Further, API 12A is no longer publicly
available through the American Petroleum Institute.
API 12A was included in 1910.106(b)(1)(iii)(a) to provide employers
with one means of complying with the general requirement for
atmospheric tanks to be ``built in accordance with acceptable good
standards of design.'' The use of API 12A was not required by the
standard. OSHA's revocation of the 1951 standard does not change an
employer's responsibility for constructing properly designed
atmospheric tanks under 1910.106(b)(1)(iii)(a).
The other standards referenced in Sec. 1910.106 have been updated
by their respective organizations in recent years. OSHA intends to
review these standards and update its references to them, as
appropriate, in the future. In this limited rulemaking, however, OSHA
is revising 1910.106(b)(1)(iii)(a)(2) to read as follows:
American Petroleum Institute Standard No. 650, Welded Steel
Tanks for Oil Storage, Third Edition, 1966.
2. 29 CFR 1910.142(c)(4)
The OSHA standard for Temporary Labor Camps, 29 CFR 1910.142,
incorporates by reference a national consensus standard that was issued
60 years ago. This referenced standard was withdrawn by the issuing SDO
in 1972 and has not been replaced. Existing 1910.142(c)(4) reads:
Where water under pressure is available, one or more drinking
fountains shall be provided for each 100 occupants or fraction
thereof. The construction of drinking fountains shall comply with
ANSI Standard Specifications for Drinking Fountains, Z4.2-1942,
which is incorporated by reference as specified in Sec. 1910.6.
Common drinking cups are prohibited.
OSHA is deleting from this provision the requirement that drinking
fountains comply with ANSI Z4.2-1942.
ANSI Z4.2-1942 was issued in 1942. It provides guidance concerning
the construction of drinking fountains based on the technology and
construction practices that existed in 1942. ANSI Z4.2-1942 contains
ten specific recommendations regarding the construction of drinking
fountains. All of these recommendations use advisory ``should''
language. Because the provisions are advisory only, they are
unenforceable. See 49 FR 5318, February 10, 1984; cf. Marshall v.
[[Page 68714]]
Pittsburgh-Des Moines Steel Company, 584 F.2d 638, 643-44 (3d. Cir.
1978).
OSHA has concluded that the reference to ANSI Z4.2-1942 should be
removed for two primary reasons. First, as stated above, because the
specific recommendations in ANSI Z4.2-1942 use advisory language, they
are unenforceable.
Second, referencing recommendations issued over 60 years ago for
the construction of drinking fountains does not enhance the safety and
health of employees. The technology for constructing drinking fountains
has changed significantly since the 1940's. Since 1942, a number of
drinking fountain units have become available to employers that, while
not strictly manufactured in accordance with ANSI Z4.2-1942, are
constructed pursuant to good engineering practices and are safe to use
at temporary labor camps. It does not serve employers or employees to
reference construction specifications that do not consider this new
technology.
For these reasons, OSHA is revising paragraph 1910.142(c)(4) to
read:
Where water under pressure is available, one or more drinking
fountains shall be provided for each 100 occupants or fraction
thereof. Common drinking cups are prohibited.
3. 29 CFR 1910.243(e)(1)(i)
Paragraph (e)(1)(i) of the OSHA standard for the Guarding of
Portable Power Tools, 29 CFR 1910.243, incorporates a 1968 national
consensus standard for power lawnmowers:
Power lawnmowers of the walk-behind, riding-rotary, and reel
power lawnmowers designed for sale to the general public shall meet
the design specifications in ``American National Standard Safety
Specifications for Power Lawnmowers'' ANSI B71.1-X1968, which is
incorporated by reference as specified in Sec. 1910.6. These
specifications do not apply to a walk-behind mower which has been
converted to a riding mower by the addition of a sulky. Also, these
specifications do not apply to flail mowers, sicklebar mowers, or
mowers designed for commercial use.
OSHA is revoking the reference to American National Standard Safety
Specifications for Power Lawnmowers ANSI B71.1-X1968 (ANSI B71.1-1968)
in this provision and replacing it with a reference to the general
machine guarding requirements contained in 29 CFR 1910.212. OSHA is
also removing the sentences that describe the types of mowers for which
the specifications in ANSI B71.1-1968 do not apply.
ANSI B71.1-1968 provides safety specifications for walk-behind and
riding rotary motors, and walk-behind and rotary reel mowers ``designed
for sale to the general public.'' ANSI B71.1-1968 states that it is not
intended to cover sulky-type mowers, flail mowers, sicklebar mowers, or
mowers designed for commercial use. ANSI B71.1-1968, p. 7.
ANSI has updated and expanded the scope of B71.1 several times
since 1968. Whereas the 1968 version was approximately 10 pages long,
the 1998 edition is approximately 60 pages long. The 1998 edition
contains specifications for a number of different walk-behind and ride-
on mowers, including: (1) Reel and rotary walk-behind power lawn
mowers, (2) reel and rotary ride-on power lawn mowers, (3) ride-on
power lawn tractors with mower attachments, (4) ride-on power lawn and
garden tractors with mower attachments, and (5) lever steer ride-on
mowers. In addition, while the 1968 version was not intended to apply
to sulky-type, flail, and sicklebar mowers, as well as mowers designed
for commercial use, the 1998 version is ``intended to apply to products
specifically intended as consumer products for the personal use of a
consumer around a house.'' Its requirements ``are not intended to apply
to commercial products customarily used by hired operators. * * *''
ANSI B71.1-1998, p. 1.
When OSHA promulgated 1910.243(e), it incorporated many of the
specifications contained in ANSI B71.1-1968 directly into the
regulatory text. In fact, the vast majority of the requirements for
walk-behind and riding rotary mowers found in ANSI B71.1-1968 are
included in 1910.243(e). The only requirements not included directly in
1910.243(e) are those dealing with the testing of certain mowers and a
handful of provisions concerning reel mowers. OSHA also incorporated
the scope section of ANSI B71.1-1968 into paragraph 1910.243(e)(1)(i).
Paragraph 1910.243(e)(1)(i) thus requires power lawnmowers designed for
sale ``to the general public'' to follow ANSI B71.1-1968, but not power
lawnmowers designed ``for commercial use''; power lawnmowers designed
for commercial use must follow the guarding requirements of 29 CFR
1910.212(a)(1) and (a)(3)(ii). See Memorandum from John Miles to
Regional Administrators, ``Misapplication of Power Lawnmower Standard
29 CFR 1910.243(e),'' 1986 (Ex. 2-1).
In order to simplify and clarify the scope and coverage of Sec.
1910.243, OSHA is deleting the reference to ANSI B71.1-1968 and the
final two sentences of paragraph 1910.243(e)(1). The reference to ANSI
B71.1-1968 in paragraph 1910.243(e)(1) is particularly confusing, given
the limitations of the scope of the consensus standard. It is difficult
for employers to determine which lawnmowers are designed for sale to
``the general public'' (covered by ANSI B71.1-1968) and which are
designed ``for commercial use'' (not covered by ANSI B71.1-1968). This
distinction is also not particularly relevant to protecting employees
from the hazards associated with operating power lawnmowers.
OSHA is replacing the reference to ANSI B71.1-1968 with a
requirement for employers to ensure that all power lawnmowers meet the
minimum guarding requirements of 29 CFR 1910.212. This change does not
significantly alter the existing requirements for power lawnmowers
``designed for commercial use,'' which, as stated above, are already
required to comply with paragraphs 1910.212(a)(1) and (a)(3)(ii). In
addition, it does not markedly alter any existing requirements for
power lawnmowers ``designed for sale to the general public.'' Employers
must still ensure that power lawnmowers comply with the requirements
contained in 1910.243(e), which as stated above, includes the vast
majority of the provisions from ANSI B71.1-1968. Ensuring that power
lawnmowers are in compliance with 1910.243(e) and the guarding
provisions of 29 CFR 1910.212, will adequately protect employees from
the hazards associated with operating this machinery. In addition, we
are aware that under Consumer Products Safety Commission standards
issued in 1979, manufacturers of certain power lawnmowers that are
``consumer products'' must meet specific design requirements for such
lawnmowers, including guarding requirements. These standards provide an
additional set of protections for employees who use such products on
the job.
Finally, OSHA considered updating the 1968 ANSI reference to the
1998 version of ANSI B71.1, but determined that doing so would not
clarify the standard. As stated above, the 1998 version applies ``to
products specifically intended as consumer products for the personal
use of a consumer around a house,'' and not to products ``customarily
used by hired operators.'' For OSHA purposes, this scope would raise
additional issues for compliance that are not encountered under the
existing OSHA standard. OSHA believes that deleting the reference and
replacing it with a reference to 29 CFR 1910.212 will both retain the
existing degree of employee protection, and remove a continuing source
of confusion as to the scope of the referenced standard.
[[Page 68715]]
Accordingly, OSHA is revising 1910.243(e)(1)(i) to read as follows:
Power lawnmowers of the walk-behind, riding rotary, and reel
power lawnmowers shall be guarded in accordance with the machine
guarding requirements in 29 CFR 1910.212, General requirements for
all machines.
4. 29 CFR 1910.254(d)(1)
The existing OSHA standard for Arc Welding and Cutting, 29 CFR
1910.254, incorporates by reference a 38-year old industry standard
that has been merged with a more recent national consensus standard.
Existing 1910.254(d)(1) reads as follows:
General. Workmen assigned to operate or maintain arc welding
equipment shall be acquainted with the requirements of this section
and with 1910.252(a), (b), and (c) of this part; if doing gas-
shielded arc welding, also Recommended Safe Practices for Gas-
Shielded Arc Welding, A6.1-1966, American Welding Society, which is
incorporated by reference as specified in Sec. 1910.6.
For reasons discussed below, OSHA is deleting the reference to
Recommended Safe Practices for Gas-Shielded Arc Welding, A6.1-1966,
American Welding Society (AWS A6.1-1966).
AWS A6.1-1966 discusses the potential hazards associated with gas-
shielded arc welding and gives recommendations (non-mandatory) on
personal protective equipment (PPE) and engineering controls to protect
employees against such hazards. Compliance with AWS A6.1-1966 was
required by ANSI Z49.1-1967, which OSHA used as a source for its
welding standards in 29 CFR 1910.254. In 1973, AWS A6.1-1966 was
formally merged into ANSI Z49.1 by the consensus standard developers.
OSHA is revoking the reference to AWS A6.1-1966 because that
industry standard is outdated and because virtually all of its coverage
is provided elsewhere in OSHA's welding standards. For example, many of
the safety-related practices discussed in AWS A6.1-1966 are
specifically addressed in 1910.252(a), (b), and (c). While AWS A6.1-
1966 gives recommendations for eye protection and protective clothing
for employees performing gas-shielded arc welding, 1910.252(b) mandates
the specific types of personal protective equipment (PPE) that welders
must use. Similarly, AWS A6.1-1966 includes a general recommendation
that metal fumes ``can'' be controlled by general ventilation and local
exhaust ventilation. Section 1910.252(c), by contrast, provides
detailed requirements on ventilation and other means of protecting
welders from inhalation hazards. Further, while AWS A6.1-1966 discusses
briefly the danger associated with trichloroethylene and
perchloroethylene decomposition, 1910.252(c) also discusses the need to
keep trichloroethylene and perchloroethylene out of atmospheres
``penetrated by the ultraviolet radiation of gas-shielded welding
operations.'' 29 CFR 1910.252(c)(11)(ii).
Paragraph 1910.254(d)(1) requires employees performing arc welding
to be ``acquainted with'' 1910.252(a), (b), and (c). These three
paragraphs cover virtually all of the recommendations that are found in
AWS A6.1-1966 and actually go beyond most of them. In light of this,
OSHA does not believe it is necessary to continue to reference the AWS
standard in Sec. 1910.254(d)(1).
OSHA also notes that employees performing gas-shielded arc welding
are protected from many of the underlying hazards discussed in AWS
A6.1-1966 through other applicable OSHA standards. For example,
exposures to virtually all of the toxic or hazardous substances that
are discussed in AWS A6.1-1966 are regulated by Subpart Z (Toxic and
Hazardous Substances) of Part 1910.
Finally, the hazard information included in AWS A6.1-1966 is
outdated, particularly compared to the information that employers are
already required to provide to employees under OSHA's hazard
communication standard, 29 CFR 1910.1200.
For these reasons, OSHA is revising paragraph 1910.254(d)(1) to
read:
General. Workmen assigned to operate or maintain arc welding
equipment shall be acquainted with the requirements of this section
and with 1910.252(a), (b), and (c) of this part.
5. 29 CFR 1910.265(c)(31)(i)
The existing OSHA standard for Sawmills, 29 CFR 1910.265,
incorporates by reference a consensus standard that is over 35 years
old, has been withdrawn by the issuing SDO, and is included in an
unenforceable provision. Existing 1910.265(c)(31)(i) reads:
Hazardous crossings. Railroad tracks and other hazardous
crossings shall be plainly posted and appropriate traffic control
devices (American National Standard D8.1-1967 for Railroad-Highway
Grade Crossing Protection, which is incorporated by reference as
specified in Sec. 1910.6) should be utilized.
OSHA is deleting the provision that employers ``should'' use
``appropriate traffic control devices,'' as set forth in ANSI D8.1-
1967.
ANSI D8.1-1967 provides recommendations for signaling, marking, and
controlling access to railroad-highway crossings. It does not address
hazards specifically associated with crossings in sawmills or other
special industries. Rather, the recommendations ``are in the interest
of establishing uniformity in traffic control and safety devices at
railroad-highway grade crossings.'' ANSI D8.1-1967, p. 4. ANSI withdrew
the standard on January 20, 1981 and did not replace it.
OSHA references ANSI D8.1-1967 in an advisory provision; as stated
earlier, advisory provisions in mandatory standards are unenforceable.
As OSHA found during an earlier rulemaking to delete ``should''
provisions (47 FR 23477, May 28, 1982; 49 FR 5321, February 10, 1984),
removing such provisions clarifies employer obligations and enhances
OSHA enforcement capabilities. In addition, in the present situation,
referencing a 37-year old consensus standard that was intended to
address railroad and highway grade crossings--not crossings
specifically in sawmills--adds little value to employers and employees
in the sawmill industry. At the same time, because OSHA is retaining
the mandatory provision in paragraph 1910.265(c)(3)(i) that employers
plainly post railroad tracks and other hazardous crossings, employees
will continue to be alerted to potential hazards at these dangerous
areas.
OSHA is thus revising the provision to read:
Hazardous crossings. Railroad tracks and other hazardous
crossings shall be plainly posted.
III. 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 ``which 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) if, among other things, a significant
risk of material harm exists in the workplace and the proposed standard
would substantially reduce or eliminate that workplace risk.
[[Page 68716]]
This direct final rule will not reduce the employee protections put
into place by the standards being revised; the intent of this direct
final rule is to revoke references to consensus standards that are
outdated, no longer represent the state-of-the-art in workplace safety,
and are confusing to employers and employees. It is therefore
unnecessary to determine significant risk, or the extent to which the
direct final rule would reduce that risk, as would typically be
required by Industrial Union Department, AFL-CIO v. American Petroleum
Institute, 448 U.S. 607 (1980).
IV. Final Economic Analysis and Regulatory Flexibility Act
Certification
This action is not economically significant within the context of
Executive Order 12866, or a ``major rule'' under the Unfunded Mandates
Reform Act or Section 801 of the Small Business Regulatory Enforcement
Fairness Act. The rulemaking would impose no additional costs on any
private or public sector entity, and does not meet any of the criteria
for an economically significant or major rule specified by the
Executive Order or relevant statutes.
This action simply deletes or revises a number of provisions in
OSHA standards that are outdated. Therefore, the Agency concludes that
the direct final rule would not impose any additional costs on these
employers; consequently, the rule requires no final economic analysis.
Furthermore, because the rule imposes no costs on employers, OSHA
certifies that it would not have a significant impact on a substantial
number of small entities; accordingly, the Agency need not prepare a
final regulatory flexibility analysis under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.).
V. Paperwork Reduction Act
This action does not impose new information collection requirements
for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-30.
VI. Federalism
OSHA has 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 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 there is clear constitutional authority and
the presence of a problem of national scope. Executive Order 13132
provides for preemption of State law only if there is a clear
congressional intent for the Agency to do so. Any such preemption is to
be limited to the extent possible.
Section 18 of the OSH Act (29 U.S.C. 651 et seq.) expresses
Congress' intent to preempt State laws where OSHA has promulgated
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 such State-Plan
States must, among other things, 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. As
Congress has expressed a clear intent for OSHA standards to preempt
State job safety and health rules in areas addressed by OSHA standards
in States without OSHA-approved State Plans, this rule limits State
policy options in the same manner as all OSHA standards. In States with
OSHA-approved State Plans, this action does not significantly limit
State policy options.
VII. State Plan States
When Federal OSHA promulgates a new standard or more stringent
amendment to an existing standard, the 26 States or U.S. Territories
with their own OSHA-approved occupational safety and health plans must
revise their standards to reflect the new standard or amendment, or
show OSHA why there is no need for action, e.g., because an existing
State standard covering this area is already ``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. These 26 States and
territories are: Alaska, Arizona, California, Connecticut (plan covers
only State and local government employees), Hawaii, Indiana, Iowa,
Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, New Jersey
(plan covers only State and local government employees), New York (plan
covers only State and local government employees), North Carolina,
Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont,
Virginia, Virgin Islands (plan covers only territorial and local
government employees), Washington, and Wyoming.
VIII. Unfunded Mandates Reform Act
This direct final rule, which amends subpart A--General (29 CFR
1910.6), subpart H--Hazardous Materials (29 CFR 1910.106), subpart J--
General Environmental Controls (29 CFR 1910.142), subpart P--Hand and
Portable Powered-Tools and Other Hand-Held Equipment (29 CFR 1910.243),
subpart Q--Welding, Cutting and Brazing (29 CFR 1910.254), and subpart
R--Special Industries (29 CFR 1910.265), has been reviewed in
accordance with the Unfunded Mandates Reform Act of 1995 (UMRA), 2
U.S.C. 1501 et seq.
For the purposes of the UMRA, the Agency certifies that this direct
final rule does not impose any Federal mandate that may result in
increased expenditures by State, local, or tribal governments, or
increased expenditures by the private sector, of more than $100 million
in any year.
List of Subjects in Part 1910
Flammable materials, Hazardous substances, Occupational safety and
health, Signs and symbols.
IX. Authority and Signature
This document was prepared under the direction of John L. Henshaw,
Assistant Secretary of Labor for Occupational Safety and Health, U.S.
Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210. It is issued pursuant to 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 5-2002 (67 FR 65008), and 29 CFR part 1911.
Signed at Washington, DC, this 17th day of November, 2004.
John L. Henshaw,
Assistant Secretary of Labor.
Amendments to Standards
0
Part 1910 of title 29 of the Code of Federal Regulations is amended as
set forth below:
PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS
Subpart A--General
0
1. The authority citation for subpart A of part 1910 is revised to read
as follows:
Authority: Secs. 4, 6, 8, Occupational Safety and Health Act of
1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order Numbers
12-71 (36 FR 8754), 8-76 (41 FR
[[Page 68717]]
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), or
5-2002 (67 FR 65008), as applicable.
Sections 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).
Sec. 1910.6 [Amended]
0
2. Section 1910.6 is amended by removing and reserving paragraphs
(e)(31); (e)(35); (e)(48); (f)(1); and (i)(2).
Subpart H--Hazardous Materials
0
3. The authority citation for Subpart H of Part 1910 is revised 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
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 5-2002 (67 FR 65008), as applicable; and 29 CFR part 1911.
Sections 1910.103, 1910.106 through 1910.111, and 1910.119,
1910.120, and 1910.122 through 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
4. Paragraph (b)(1)(iii)(a)(2) of Sec. 1910.106 is revised to read as
follows:
Sec. 1910.106 Flammable and combustible liquids.
* * * * *
(b) * * *
(1) * * *
(iii) * * *
(a) * * *
(2) American Petroleum Institute Standards No. 650, Welded Steel
Tanks for Oil Storage, Third Edition, 1966.
* * * * *
Subpart J--General Environmental Controls
0
5. The authority citation for subpart J of part 1910 is revised to read
as follows:
Authority: Secs. 4, 6, and 8, 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 5-2002 (67 FR 65008), as applicable.
Sections 1910.141, 1910.142, 1910.145, 1910.146, and 1910.147
also issued under 29 CFR part 1911.
0
6. Paragraph (c)(4) of Sec. 1910.142 is revised to read as follows:
Sec. 1910.142 Temporary labor camps.
* * * * *
(c) * * *
(4) Where water under pressure is available, one or more drinking
fountains shall be provided for each 100 occupants or fraction thereof.
Common drinking cups are prohibited.
* * * * *
Subpart P--Hand and Portable Powered Tools and Other Hand Held
Equipment
0
7. The authority citation for subpart P of part 1910 is revised 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 5-2002 (67 FR 65008), as applicable;
29 CFR part 1911.
Section 1910.243 also issued under 29 CFR part 1910.
0
8. Paragraph (e)(1)(i) of Sec. 1910.243 is revised to read as follows:
Sec. 1910.243 Guarding of portable power tools.
* * * * *
(e) * * *
(1) * * *
(i) Power lawnmowers of the walk-behind, riding-rotary, and reel
power lawnmowers shall be guarded in accordance with the machine
guarding requirements in 29 CFR 1910.212, General requirements for all
machines.
* * * * *
Subpart Q--Welding, Cutting, and Brazing
0
9. The authority citation for subpart Q of part 1910 is revised to read
as follows:
Authority: Secs. 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Orders 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 5-2002 (67 FR 65008), as
applicable; and 29 CFR part 1911.
0
10. Paragraph (d)(1) of Sec. 1910.254 is revised to read as follows:
Sec. 1910.254 Arc welding and cutting.
* * * * *
(d) * * *
(1) General. Workmen assigned to operate or maintain arc welding
equipment shall be acquainted with the requirements of this section and
with 1910.252 (a), (b), and (c) of this part.
* * * * *
Subpart R--Special Industries
0
11. The authority citation for subpart R of part 1910 is revised 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), 6-96 (62 FR 111), 3-2000 (65 FR 50017), or 5-2002 (67 FR
65008), as applicable; and 29 CFR part 1911.
0
12. Paragraph (c)(31)(i) of Sec. 1910.265 is revised to read as
follows:
Sec. 1910.265 Sawmills.
* * * * *
(c) * * *
(31) * * *
(i) Hazardous crossings. Railroad tracks and other hazardous
crossings shall be plainly posted.
* * * * *
[FR Doc. 04-26045 Filed 11-23-04; 8:45 am]
BILLING CODE 4510-26-P