2022-13907. Safety and Health Regulations for Construction-Lead

AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Correcting amendment.

SUMMARY:

OSHA is issuing a correcting amendment to the OSHA lead standard for construction to correct the inadvertent removal of regulatory text resulting from a notice of correcting amendments issued February 18, 2020.

DATES:

Effective June 30, 2022.

FOR FURTHER INFORMATION CONTACT:

Press inquiries: Frank Meilinger, Director, OSHA Office of Communications; telephone: [phone]; email: [e-mail].

General and technical information: Tiffany DeFoe, Director, Office of Chemical Hazards-Metals, OSHA Directorate of Standards and Guidance; telephone: [phone]; email: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Summary and Explanation

Safety and Health Regulations for Construction—Lead (§ 1926.62)

OSHA is correcting 29 CFR 1926.62 to restore regulatory text that was inadvertently removed from the OSHA lead standard for construction by amendments published on February 18, 2020 (85 FR 8726, 8735). This action is to reinstate the omitted regulatory text and restore the OSHA lead standard for construction to its correct version. The agency is issuing this notice to restore regulatory text at paragraph § 1926.62 (d)(2)(iv).

On February 18, 2020, OSHA corrected typographical errors, including extraneous or omitted materials and inaccurate graphics, in 27 OSHA standards and regulations. In one of these corrections under Subpart D—Occupational Health and Environmental Controls, Lead, OSHA amended paragraphs 1926.62(d)(2)(iii) and (iv) by replacing the outdated references to “Table 1 of this section” with the correct references to “paragraph (f) of this section,” as Table 1 no longer existed (see 85 FR at 8728).

These corrections resulted in the inadvertent removal of the list of tasks at the end of paragraph (d)(2)(iv). OSHA is correcting 29 CFR 1926.62 to restore this list.

II. Exemption From Notice and Comment Procedures

OSHA has determined this correction is not subject to the procedures for public notice and comment specified in Section 4 of the Administrative Procedure Act (5 U.S.C. 553), and Section 6(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)). This rulemaking only reinstates the inadvertent removal of four lines of regulatory text. The text that was removed was originally promulgated as part of an interim final rule mandated by Title X of the Housing and Community Development Act of 1992 (Pub. L. 102-550) and was included in § 1926.62(d)(2)(iv) for more than 25 years until its inadvertent deletion. No stakeholder is likely to object to this correction. Therefore, the agency finds good cause, in accordance with 29 CFR 1911.5 and 5 U.S.C. 553(b)(3)(B), that public notice and comment are unnecessary under 5 U.S.C. 553(b) and 29 U.S.C. 655(b).

III. State Plans

When federal OSHA promulgates a new standard or more stringent amendment to an existing standard, the states and U.S. Territories with their own OSHA-approved occupational safety and health plans (State Plans) must promulgate a state standard adopting such new federal standard or more stringent amendment to an existing federal standard, or an at least as effective equivalent thereof, within six months of promulgation of the new federal standard or amendment. The state may demonstrate that a standard change is not necessary if the state standard is already the same or at least as effective as the federal standard change.

Of the 28 states and territories with OSHA-approved State Plans, 22 cover public and private-sector employees: 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. The remaining six states and territories cover only state and local government employees: Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin Islands.

OSHA concludes this correcting amendment restores inadvertently removed regulatory text which contains protections afforded employees under this standard for more than 25 years. Therefore, OSHA has determined that, within six months of the rule's promulgation date, State Plans must review their state standards and adopt this correction, unless the State Plans demonstrate that such amendment is not necessary, either because their existing standards continue to include the language that was inadvertently removed from the federal standard or because they have adopted different standards that are at least as effective as the reinstated federal provisions.

Authority and Signature

James Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210, authorized the preparation of this notice pursuant to 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 Order 8-2020 (85 FR 58393 (Sept. 18, 2020)); 29 CFR part 1911; and 5 U.S.C. 553.

James Frederick,

Deputy Assistant Secretary of Labor for Occupational Safety and Health.

Accordingly, OSHA is correcting 29 CFR part 1926 with the following amendment:

PART 1926—OCCUPATIONAL SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION

1. The authority citation for subpart D is revised to read as follows:

Authority: 40 U.S.C. 3704; 29 U.S.C. 653, 655, and 657; and 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), 5-2002 (67 FR 65008), 5-2007 (72 FR 31159), 4-2010 (75 FR 55355), 1-2012 (77 FR 3912), or 8-2020 (85 FR 58393), as applicable; and 29 CFR part 1911.

Sections 1926.59, 1926.60, and 1926.65 also issued under 5 U.S.C. 553 and 29 CFR part 1911.

Section 1926.61 also issued under 49 U.S.C. 1801-1819 and 5 U.S.C. 553.

Section 1926.62 also issued under sec. 1031, Public Law 102-550, 106 Stat. 3672 (42 U.S.C. 4853).

Section 1926.65 also issued under sec. 126, Public Law 99-499, 100 Stat. 1614 (reprinted at 29 U.S.C.A. 655 Note) and 5 U.S.C. 553.

2. Amend § 1926.62 by revising paragraph (d)(2)(iv) to read as follows:

§ 1926.62

Lead.

* * * * *

(d) * * *

(2) * * *

(iv) With respect to the tasks listed in this paragraph (d)(2)(iv), where lead is present, until the employer performs an employee exposure assessment as required in this paragraph (d) and documents that the employee performing any of the listed tasks is not exposed to lead in excess of 2,500 μg/m³ (50×PEL), the employer shall treat the employee as if the employee were exposed to lead in excess of 2,500 μg/m³ and shall implement employee protective measures as prescribed in paragraph (d)(2)(v) of this section. Where the employer does establish that the employee is exposed to levels of lead below 2,500 μg/m³ , the employer may provide the exposed employee with the appropriate respirator prescribed for use at such lower exposures, in accordance with paragraph (f) of this section. Interim protection as described in this paragraph is required where lead containing coatings or paint are present on structures when performing:

(A) Abrasive blasting,

(B) Welding,

(C) Cutting, and

(D) Torch burning.

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