E6-17124. Updating National Consensus Standards in OSHA's Standard for Fire Protection in Shipyard Employment.

AGENCY:

Occupational Safety and Health Administration, Department of Labor.

ACTION:

Direct final rule.

SUMMARY:

On September 15, 2004, the Occupational Safety and Health Administration (OSHA) promulgated a new fire protection rule for shipyard employment that incorporated by reference 19 National Fire Protection Association (NFPA) standards. Ten of those NFPA standards had been updated by NFPA since the fire protection rule was proposed and an additional NFPA standard has been updated since the final rule was published. In this direct final rule, OSHA is replacing the references to those eleven NFPA standards by adding the most recent versions.

DATES:

This direct final rule will become effective on January 16, 2007 unless significant adverse comment is received by November 16, 2006. If significant adverse comment is received, OSHA will publish a timely withdrawal of this rule. The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register as of January 16, 2007.

Comments to this direct final rule must be submitted by the following dates: Hard copy: Your comments must be submitted (postmarked or sent) by November 16, 2006. Electronic transmission and facsimile: Your comments must be sent by November 16, 2006.

ADDRESSES:

You may submit written comments to this direct final rule—identified by docket number S-051A or RIN number 1218-AC16—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 [phone].
• Regular mail, express delivery, hand delivery, and courier service: Submit three copies to the OSHA Docket Office, Docket No. S-051A, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-2625, Washington, DC 20210; telephone [phone]. (OSHA's TTY number is [phone]). OSHA Docket Office hours of operation are 8:15 a.m. to 4:45 p.m., EST.

FOR FURTHER INFORMATION:

For general information and press inquiries, contact 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 Jim Maddux, Director, Office of Maritime, Directorate of Standards and Guidance, Room N-3609, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: [phone] or 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.

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 Web page and for assistance in using the Web page to locate docket submissions.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Request for Comment

II. Direct Final Rulemaking

III. Discussion of Changes

IV. Legal Considerations

V. Final Economic Analysis and Regulatory Flexibility Act Certification

VI. Paperwork Reduction Act

VII. Federalism

VIII. State Plan States

IX. Unfunded Mandates Reform Act

X. List of Subjects for 29 CFR Part 1915

XI. Authority and Signature

I. Request for Comment

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 published in the Proposed Rules section of today's Federal Register. Such confirmation may include minor stylistic or technical changes to the document.

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.

II. Direct Final Rulemaking

In direct final rulemaking, an agency publishes a final rule in the Federal Register with a statement that the rule will go into effect unless a significant adverse comment is received within a specified period of time. An identical proposed rule is often published at the same time. If no significant adverse comments are submitted, the rule goes into effect. 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 not be controversial. Examples include minor substantive changes to regulations updating incorporated references to the latest edition of national consensus standards, 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 rule would be inappropriate, including challenges to the rule'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 a timely significant adverse comment is received, the Agency will publish a notice of significant adverse comment in the Federal Register withdrawing this direct final rule no later than January 16, 2007.

OSHA is also publishing today a companion proposed rule, which is 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(s) and publishing a new final rule. If a significant adverse comment is received regarding certain revisions included in this direct final rule, but not others, OSHA may (1) Finalize those changes that did not receive significant adverse comment, and (2) conduct further rulemaking under the companion proposed rule for the changes 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. This direct final rule will enhance OSHA's fire protection in shipyard standard by adding the most current NFPA consensus standards to the OSHA standard. OSHA's changes will benefit the safety of employees by requiring employers to comply with the newer standards, which may be even more protective than the older standards. Furthermore, OSHA's changes will not result in additional compliance costs. OSHA does not anticipate any objections to this direct final rule.

III. Discussion of Changes

On September 15, 2004, OSHA issued a new fire protection final rule for shipyard employment that incorporated by reference 19 National Fire Protection Association (NFPA) standards (69 FR 55667). The purpose of this direct final rule is to add ten recently updated NFPA standards to the standard for fire protection in shipyard employment. The 10 NFPA standards are new versions of 11 NFPA standards currently in OSHA's standard. The reason there are only 10 is because the NFPA combined two of its standards, NFPA 11-1998 and NFPA 11A-1999, into the NFPA 11-2002 standard covering foam fire extinguishing systems. This direct final rule replaces the 11 older NFPA standards with the 10 newer NFPA standards.

Table I lists the older NFPA standards incorporated by reference in the fire protection in shipyard employment standard, and lists the sections in the standard in which these NFPA standards are referenced. It also lists the latest versions of the NFPA standards to be added to the standard for fire protection in shipyard employment through this direct final rule.

Table I

Section	Paragraph	NFPA standards incorporated by reference in 29 CFR part 1915	Latest version of NFPA standard
1915.505 Fire Response	(e)(3)(v)	NFPA 1981-1997 Standard on Open-Circuit Self-Contained Breathing Apparatus for the Fire Service	NFPA 1981-2002 Standard on Open-Circuit Self-Contained Breathing Apparatus for Fire and Emergency Services (Ex. 1-1).
1915.507 Land-side fire protection systems	(b)(1), (b)(2)	NFPA 10-1998 Standard for Portable Fire Extinguishers	NFPA 10-2002 Standard for Portable Fire Extinguishers (Ex. 1-2).
	(c)(6)	NFPA 72-1999 National Fire Alarm Code	NFPA 72-2002 National Fire Alarm Code (Ex. 1-3).
	(b)(2), (d)(1)	NFPA 14-2000 Standard for the Installation of Standpipe, Private Hydrant, and Hose Systems	NFPA 14-2003 Standard for the Installation of Standpipe and Hose Systems (Ex. 1-4).
	(d)(2)	NFPA 13-1999 Standard for the Installation of Sprinkler Systems	NFPA 13-2002 Standard for the Installation of Sprinkler Systems (Ex.1-5).
		NFPA 750-2000 Standard on Water Mist Fire Protection Systems	NFPA 750-2003 Standard on Water Mist Fire Protection Systems (Ex. 1-6).
	(d)(3)	NFPA 11-1998 Standard for Low-Expansion Foam	NFPA 11-2005 Standard for Low-, Medium-, and High-Expansion Foam (Ex. 1-7).
		NFPA 11A-1999 Standard for Medium- and High-Expansion Foam Systems
	(d)(5)	NFPA 12A-1997 Standard on Halon 1301 Fire Extinguishing Systems	NFPA 12A-2004 Standard on Halon 1301 Fire Extinguishing Systems (Ex. 1-8).
		NFPA 2001-2000 Standard on Clean Agent Fire Extinguishing Systems	NFPA 2001-2004 Standard on Clean Agent Fire Extinguishing Systems (Ex. 1-9).
		NFPA 12-2000 Standard on Carbon Dioxide Extinguishing Systems	NFPA 12-2005 Standard on Carbon Dioxide Extinguishing Systems.

OSHA has examined the latest versions of the NFPA standards and compared them with the versions currently referenced in the fire protection in shipyard employment standard. OSHA finds that the latest versions are as protective on the whole, and in certain ways more protective, than the earlier versions of the same NFPA standards. The latest versions are also more comprehensive than the earlier versions and reflect recent developments in safety technology, equipment, and testing. The changes to the NFPA standards include:

• Standard on Open-Circuit Self-Contained Breathing Apparatus for Fire and Emergency Services—NFPA 1981-2002 has been revised to add requirements for heads-up displays (HUD) that provide the user of a self-contained breathing apparatus (SCBA) with information regarding breathing air supply status, alert the user when the breathing air supply is at 50 percent of full, and, where the HUD is powered by battery power source, warn the user when the HUD only has 2 more hours of battery power. The updated standard also includes new requirements for a Rapid Intervention Company/Crew (RIC) Universal Air Connection (UAC) (or RIC UAC) on all new SCBA. The RIC UAC is a standard connection device that allows a rescue breathing air supply to be joined to the SCBA of a victim, fire fighter or other emergency services responder to replenish the breathing air in the SCBA breathing air cylinder when the victim cannot be rapidly moved to a safe atmosphere. (Ex. 1-1).
• Standard for Low-, Medium-, and High-Expansion Foam—NFPA 11-2005 has been revised to combine the older NFPA 11 low-expansion foam system requirements with the older NFPA 11A medium- and high-expansion foam provisions. (Ex.1-7).
• Standard for Portable Fire Extinguishers—NFPA 10-2002 has been revised to prohibit “extended wand-type” discharge devices on Class K—fire extinguishers manufactured after 01/01/2002. (Class “K” extinguishers are used for “combustible cooking media” fire hazards in commercial kitchens.) The new version of NFPA 10 allows the use of electronic equipment to monitor the status of portable fire extinguishers an alternative that may be more effective and efficient than manual monitoring (Ex. 1-2).
• National Fire Alarm Code—NFPA 72-2002 has been updated to revise fire alarm power supply requirements, to improve the survivability of fire alarms from attack by fire, and to improve the “supervising stations” used in larger fire alarm systems. (Ex. 1-3).
• Standard for the Installation of Sprinkler Systems—NFPA 13-2002 has been updated to add the sprinkler installation requirements found in other NFPA standards, to include criteria for solid shelf storage areas, and to make the standard easier for users to reference. (Ex. 1-5).

The remaining NFPA standards have been updated to make minor technical and editorial changes and to improve readability by formatting them into a standard layout.

IV. 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 and 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.

This direct final rule, which addresses the hazard of fire in shipyard employment, may enhance the employee protections currently in place through incorporated references to NFPA consensus standards. In its final rule on fire protection in shipyard employment, OSHA discussed injuries and fatalities that may result from fire hazards in shipyards, and the potential for reducing those injuries and deaths through adoption of the final standard (69 FR 55668, 55669, 55699). Because this direct final rule simply updates the NFPA standards incorporated by reference in OSHA's fire protection standard to their most recent versions, it is 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).

V. 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 includes updated references to NFPA standards. The Agency compared the older versions of the NFPA standards with the new versions via side-by-side analyses. Based on our findings, the Agency concludes that incorporating the new versions of the NFPA standards will not impose any additional costs on any private or public sector entity.

Furthermore, because the rule imposes no additional 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.).

VI. 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.

VII. 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.

VIII. State Plan States

The 26 States or U.S. Territories with their own OSHA approved occupational safety and health plans must revise their standards to reflect this final standard 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. The state standard must be at least as effective as this final standard, 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 this final Federal rule.

Currently only five States (California, Minnesota, Oregon, Vermont, and Washington) with their own State plans cover private sector onshore maritime activities in whole or in part. Federal OSHA enforces maritime standards offshore in all States and provides onshore coverage of maritime activities in Federal OSHA States, in the five States above, to the extent not covered by them, and in all the other State Plan States: Alaska, Arizona, Connecticut (plan covers only State and local government employees), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Nevada, New Jersey (plan covers only State and local government employees), New Mexico, New York (plan covers only State and local government employees), North Carolina, Puerto Rico, South Carolina, Tennessee, Utah, Virginia, Virgin Islands (plan covers only territorial government employees), and Wyoming.

IX. Unfunded Mandates Reform Act

This direct final rule 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.

X. List of Subjects for 29 CFR Part 1915

Fire protection, Hazardous substances, Incorporation by reference, Longshore and harbor workers, Occupational safety and health, Reporting and recordkeeping requirements, Shipyards, and Vessels.

XI. Authority and Signature

This document was prepared under the direction of 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. 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, and 29 CFR Part 1911.

Signed at Washington, DC, this 5th day of October, 2006.

Edwin G. Foulke, Jr.,

Assistant Secretary of Labor.

Amendments To Standards

OSHA amends Part 1915 of Title 29 of the Code of Federal Regulations as set forth below:

1. The authority citation for Part 1915 continues to read as follows:

Authority: Sec. 41, Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941); 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 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 5-2002 (67 FR 65008) as applicable; 29 CFR Part 1911.

2. Amend § 1915.5 to revise paragraphs (d)(4)(i), (vi) through (x), and (xiii) through (xviii) and by removing paragaraph (d)(4)(xix) to read as follows:

§ 1915.5

Incorporation by reference.

* * * * *

(d) * * *

(4) * * *

(i) NFPA 1981-2002 Standard on Open-Circuit Self-Contained Breathing Apparatus for Fire and Emergency Services, IBR approved for 1915.505(e)(3)(v).

* * * * *

(vi) NFPA 10-2002 Standard for Portable Fire Extinguishers, IBR approved for §§ 1915.507(b)(1) and (b)(2).

(vii) NFPA 14-2003 Standard for the Installation of Standpipe and Hose Systems, IBR approved for §§ 1915.507(b)(2) and (d)(1).

(viii) NFPA 72-2002 National Fire Alarm Code, IBR approved for § 1915.507(c)(6).

(ix) NFPA 13-2002 Standard for the Installation of Sprinkler Systems, IBR approved for § 1915.507(d)(2).

(x) NFPA 750-2003 Standard on Water Mist Fire Protection Systems, IBR approved for § 1915.507(d)(2).

* * * * *

(xiii) NFPA 11-2005 Standard for Low-, Medium-, and High-Expansion Foam, IBR approved for § 1915.507(d)(3).

(xiv) NFPA 17-2002, Standard for Dry Chemical Extinguishing Systems, IBR approved for § 1915.507(d)(4).

(xv) NFPA 12-2005, Standard on Carbon Dioxide Extinguishing Systems, IBR approved for § 1915.507(d)(5).

(xvi) NFPA 12A-2004, Standard on Halon 1301 Fire Extinguishing Systems, IBR approved for § 1915.507(d)(5).

(xvii) NFPA 2001-2004, Standard on Clean Agent Fire Extinguishing Systems, IBR approved for § 1915.507(d)(5).

(xviii) NFPA 1403-2002, Standard on Live Fire Training Evolutions, IBR approved for § 1915.508(d)(8).

3. Amend § 1915.505 to revise paragraph (e)(3)(v) to read as follows:

§ 1915.505

Fire response.

* * * * *

(e) * * *

(3) * * *

(v) Provide only SCBA that meet the requirements of NFPA 1981-2002 Standard on Open-Circuit Self-Contained Breathing Apparatus for Fire and Emergency Services (incorporated by reference, see § 1915.5); and

* * * * *

4. Amend § 1915.507 to revise paragraphs (b)(1), (b)(2), (c)(6), (d)(1), (d)(2), (d)(3), and (d)(5) to read as follows:

§ 1915.507

Land-side fire protection system.

* * * * *

(b) * * *

(1) The employer must select, install, inspect, maintain, and test all portable fire extinguishers according to NFPA 10-2002 Standard for Portable Fire Extinguishers (incorporated by reference, see § 1915.5).

(2) The employer is permitted to use Class II or Class III hose systems, in accordance with NFPA 10-2002 (incorporated by reference, see § 1915.5), as portable fire extinguishers if the employer selects, installs, inspects, maintains, and tests those systems according to the specific recommendations in NFPA 14-2003 Standard for the Installation of Standpipe and Hose Systems (incorporated by reference, see § 1915.5).

(c) * * *

(6) Select, install, inspect, maintain, and test all automatic fire detection systems and emergency alarms according to NFPA 72-2002 National Fire Alarm Code (incorporated by reference, see § 1915.5)

(d) * * *

(1) Standpipe and hose systems according to NFPA 14-2003 Standard for the Installation of Standpipe and Hose Systems (incorporated by reference, see § 1915.5);

(2) Automatic sprinkler systems according to NFPA 25-2002 Standard for the Inspection, Testing, and Maintenance of Water-based Fire Protection Systems, (incorporated by reference, see § 1915.5), and either (i) NFPA 13-2002 Standard for the Installation of Sprinkler Systems (incorporated by reference, see § 1915.5), or (ii) NFPA 750-2003 Standard on Water Mist Fire Protection Systems (incorporated by reference, see § 1915.5);

(3) Fixed extinguishing systems that use water or foam as the extinguishing agent according to NFPA 15-2001 Standard for Water Spray Fixed Systems for Fire Protection (incorporated by reference, see § 1915.5) and NFPA 11-2005 Standard for Low-, Medium-, and High-Expansion Foam (incorporated by reference, see § 1915.5);

* * * * *

(5) Fixed extinguishing systems using gas as the extinguishing agent according to NFPA 12-2005 Standard on Carbon Dioxide Extinguishing Systems (incorporated by reference, see § 1915.5); NFPA 12A-2004 Standard on Halon 1301 Fire Extinguishing Systems (incorporated by reference, see § 1915.5); and NFPA 2001-2004 Standard on Clean Agent Fire Extinguishing Systems (incorporated by reference, see § 1915.5).