E7-24181. Updating OSHA Standards Based on National Consensus Standards

AGENCY:

Occupational Safety and Health Administration (OSHA); Department of Labor.

ACTION:

Direct final rule.

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 [phone]; 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: [phone]. (OSHA's TTY number is [phone].) 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: [phone]. 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: [phone]; fax: [phone]. 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 [phone]. 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 § 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 § 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

OSHA standards	Reference consensus standards and comparable OSHA standards	Action taken	Comment
1910.68(b)(4) and (b)(8)(ii)	ANSI A12.1-1967—Safety Requirements for Floor and Wall Openings, Railings, and Toeboards 1910.23.	Remove the reference to the ANSI standard in both OSHA standards	The provisions in the OSHA standard and the consensus standard are identical.
1910.94(b)(5)(i)(a)	ANSI B7.1-1970—Safety Code for the Use, Care, and Protection of Abrasive Wheels (Tables 5 and 6 contain structural-strength specifications for hoods)	Remove the reference to the ANSI standard and replace it with a cite to 1910.215, Tables O-1 and O-9	The provisions in the OSHA standard and the consensus standard are identical.
1910.94(c)(1)(ii)	NFPA No. 33-1969—Standard for Spray Finishing Using Flammable and Combustible Materials (Sections 103, 104, and 105) 1910.107(a).	Remove the reference to the NFPA standard	The provisions in the OSHA standard and the consensus standard are identical. In addition, the reference to the consensus standard is non-mandatory.
1910.94(c)(3)(i)	NFPA No. 33-196—Standard for Spray Finishing Using Flammable and Combustible Materials (Sections 301-304, 306-310) 1910.107(b)(1)-(b)(4) and (b)(6)-(b)(10).	Remove the reference to the NFPA standard	Except for section 301 of the NFPA standard, the provisions in the OSHA standard and the NFPA standard are identical. Section 301 of the NFPA standard specifies that spray 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—Standard for Spray Finishing Using Flammable and Combustible Materials (Section 310 and Chapter 4) 1910.107(b)(10) and (c).	Remove the reference to the NFPA standard	Except for a few minor differences between the provisions of Chapter 4 of the NFPA standard and the comparable OSHA standard, the provisions in the OSHA 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—Standard for Spray Finishing Using Flammable and Combustible Materials (Sections 304 and 305) 1910.107(b)(4) and (b)(5).	Remove the reference to the NFPA standard	The provisions in the OSHA standard and the consensus standard are identical. In addition, the reference to the consensus standard is non-mandatory.
1910.94(c)(3)(iii)(a)	NFPA No. 33-1969—Standard for Spray Finishing Using Flammable and Combustible Materials (Section 305) 1910.107(b)(5).	Remove the reference to the NFPA standard	The provisions in the OSHA standard and the consensus standard are identical. In addition, the reference to the consensus standard is non-mandatory.
1910.94(c)(5)(i)	NFPA No. 33-1969—Standard for Spray Finishing Using Flammable and Combustible Materials (Chapter 5) 1910.107(d).	Remove the reference to the NFPA standard	The provisions in the OSHA standard and the consensus standard are identical. In addition, the reference to the consensus standard is non-mandatory.
1910.94(c)(5)(iii)(e)	ANSI Z9.1-1951—Safety Code for Ventilation and Operation of Open Surface Tanks (Section 8.3.21) 1910.94(c)(5)(iii)(e).	Remove the reference to the ANSI standard	OSHA could find no Section 8.3.21 in the ANSI standard and, therefore, is removing the non-mandatory reference to ANSI Z9.1-1951 from 1910.94(c)(5)(iii)(e).
1910.103(b)(1)(i)(c), .110(b)(5)(iii), and .111(e)(1)	ANSI Z48.1-1954—Method of Marking Portable Compressed Gas Containers to Identify the Material Contained (Section 3 specifies the means for marking gas cylinders) 1910.253(b)(1)(ii).	Remove the reference to the ANSI standard and replace it with a cite to paragraph (b)(1)(ii) of 1910.253	The requirements in the OSHA standard and the consensus standard are virtually identical. Paragraph 3.2 of the ANSI standard requires that, when practical, “the marking shall be 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 Code for Building Construction (paragraph 1.6.2 addresses the use of red lights with barricades) 1910.144(a)(1)(ii).	Remove the reference to the ANSI standard	The OSHA standard and the referenced consensus standard have similar requirements. The OSHA standard requires that red lights be provided “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.
1910.243(d)(1)(i)	ANSI A10.3-1970—Safety Requirements for Explosive-Actuated Fastening Tools (Section 3 specifies design requirements) 1910.243(d)(2).	Remove the reference to the ANSI standard and replace it with a cite to the design requirements specified by 1910.243(d)(2)	The provisions in the OSHA standard and the consensus standard are identical, except that paragraph (d)(2) of 1910.243 does not 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 of Marking Portable Compressed Gas Containers to Identify the Material Contained 1910.253(b)(1)(ii).	Remove the reference to the ANSI standard	See the comments above under the entry for 1910.103(b)(1)(i)(c), .110(b)(5)(iii), and .111(e)(1).
1910.261(c)(15)(ii), (e)(4), (g)(13)(i), (h)(1), (j)(4)(iii), (j)(5)(i), (k)(6), (k)(13)(i), and (k)(15)	ANSI A12.1-1967—Safety Requirements for Floor and Wall Openings, Railings, and Toeboards 1910.23.	Remove the reference to the ANSI standards in the OSHA standards and replace them with a cite to 1910.23	The provisions in the OSHA standard and consensus standard are identical.

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 § 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 [phone].

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

For the reasons stated in the preamble, OSHA is amending 29 CFR part 1910 to read as follows:

PART 1910—[AMENDED]

Subpart A—[Amended]

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).

2. In § 1910.6:

a. Remove and reserve paragraphs (e)(1), (e)(2), (e)(5), (e)(62), and (e)(63), and (i)(1).; and

b. Revise paragraphs (e)(15), (e)(49), and (q)(3) to read as follows:

§ 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 §§ 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 § 1910.94(c)(2).

* * * * *

Subpart F—[Amended]

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.

5. Revise paragraphs (b)(4) and (b)(8)(ii) of § 1910.68 to read as follows:

§ 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 § 1910.6.

* * * * *

(8) * * *

(ii) Construction. The rails shall be standard guardrails with toeboards meeting the provisions of § 1910.23.

* * * * *

Subpart G—[Amended]

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.

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 § 1910.94 to read as follows:

§ 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 § 1910.215.

* * * * *

(c) * * *

(1) * * *

(ii) Spray booth. Spray booths are defined and described in § 1910.107(a).

* * * * *

(3) * * *

(i) Spray booths shall be designed and constructed in accordance with § 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 § 1910.6.

(a) Lights, motors, electrical equipment, and other sources of ignition shall conform to the requirements of § 1910.107(b)(10) and (c).

* * * * *

(iii) Baffles, distribution plates, and dry-type overspray collectors shall conform to the requirements of § 1910.107(b)(4) and (b)(5).

(a) Overspray filters shall be installed and maintained in accordance with the requirements of § 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 § 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]

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.

9. Revise paragraph (b)(1)(i)( C) of § 1910.103 to read as follows:

§ 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 § 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.”

* * * * *

10. Revise paragraph (c)(1)(iv) of § 1910.107 to read as follows:

§ 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.

* * * * *

11. Amend paragraph (b)(5)(iii) of § 1910.110 to read as follows:

§ 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 § 1910.253(b)(1)(ii).

* * * * *

12. Revise paragraph (e)(1) of § 1910.111 to read as follows:

§ 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 § 1910.253(b)(1)(ii).

* * * * *

Subpart J—[Amended]

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.

14. Revise paragraph (a)(1)(ii) of § 1910.144 to read as follows:

§ 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° 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 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]

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.

16. Revise paragraph (d)(1)(i) of § 1910.243 to read as follows:

§ 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]

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.

§ 1910.251

[Amended]

18. Remove paragraph (c) of § 1910.251.

19. Revise paragraph (b)(1)(ii) of § 1910.253 to read as follows:

§ 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]

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.

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 § 1910.261 to read as follows:

§ 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 § 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 § 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 § 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 § 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 § 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 § 1910.23.

* * * * *

(k) * * *

(6) Steps. Steps of uniform rise and tread with nonslip surfaces shall be provided at each press in accordance with § 1910.23.

* * * * *

(13) * * *

(i) A guardrail shall be provided at broke holes in accordance with § 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 § 1910.23.

* * * * *