[Federal Register: August 11, 2009 (Volume 74, Number 153)][Rules and Regulations] [Page 40441-40447]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au09-20]
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Part IV
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Part 1910
Revising Standards Referenced in the Acetylene Standard; Final Rule
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. OSHA-2008-0034]
RIN 1218-AC08
Revising Standards Referenced in the Acetylene Standard
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Direct final rule; request for comments.
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SUMMARY: In this direct final rule, the Agency is revising its
Acetylene Standard for general industry by updating references to
standards published by standards developing organizations (i.e., "SDO
standards"). This rulemaking is a continuation of OSHA's ongoing
effort to update references to SDO standards used throughout its rules.
DATES: This direct final rule will become effective on November 9, 2009
unless significant adverse comment is received by September 10, 2009.
If adverse comment is received, OSHA will publish a timely withdrawal
of the rule in the Federal Register. Comments to this direct final rule
(including comments to the information-collection (paperwork)
determination described under the section titled Procedural
Determinations), hearing requests, and other information must be
submitted by September 10, 2009. All submissions must bear a postmark
or provide other evidence of the submission date. (The following
section titled ADDRESSES describes methods available for making
submissions.)
The incorporation by reference of specific publications listed in
this direct final rule is approved by the Director of the Federal
Register as of November 9, 2009.
ADDRESSES: Submit comments and hearing requests as follows:
Electronic. Submit comments electronically to http://
www.regulations.gov, which is the Federal eRulemaking Portal. Follow
the instructions online for submitting comments.
Facsimile. OSHA allows facsimile transmission of comments
and hearing requests that are 10 pages or fewer in length (including
attachments). Send these documents to the OSHA Docket Office at (202)
693-1648; OSHA does not require hard copies of these documents. 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-2008-0034) 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-2008-0034 or RIN No. 1218-AC08,
Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200
Constitution Ave., NW., Washington, DC 20210; telephone: (202) 693-
2350. (OSHA's TTY number is (877) 889-5627.) Note that security-related
procedures 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-2008-0034).
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 this direct final
rule would have no negative economic, paperwork, or other regulatory
impacts on the regulated community. This direct final rule is the
companion document to a notice of proposed rulemaking also published in
the "Proposed Rules" section of today's Federal Register. If OSHA
receives no significant adverse comment on this direct final rule, it
will publish a Federal Register document confirming the effective date
of this direct final rule and withdrawing the companion proposed rule.
The confirmation may include minor stylistic or technical corrections
to the document. For the purpose of judicial review, OSHA considers the
date that it confirms the effective date of the direct final rule to be
the date of issuance. However, if OSHA receives significant adverse
comment on the direct final rule, it will publish a timely withdrawal
of this direct final rule and proceed with the proposed rule, which
addresses the same revisions to the Acetylene Standard.
Docket. The electronic docket for this direct final rule
established at http://www.regulations.gov lists most of the documents
in the docket. 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: Press inquiries. Contact Jennifer
Ashley, OSHA Office of Communications, Room N-3647, U.S. Department of
Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone:
(202) 693-1999.
General and technical information. Contact Ted Twardowski, Office
of Safety Systems, Directorate of Standards and Guidance, Room N-3609,
OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210; telephone: (202) 693-2255; fax: (202) 693-1663.
SUPPLEMENTARY INFORMATION:
Copies of this Federal Register notice. Electronic copies are
available at http://www.regulations.gov. This Federal Register notice,
as well as news releases and other relevant information, also are
available at OSHA's Webpage at http://www.osha.gov.
Availability of Incorporated Standards. The standards published by
the Compressed Gas Association and the National Fire Protection
Association required in Sec. 1910.102 are incorporated by reference
into this section with the approval of the Director of the Federal
Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any
edition other than the editions specified in Sec. 1910.102, the
Occupational Safety and Health Administration (OSHA) must publish a
notice of change in the Federal Register and the material must be
available to the public. All approved material is available for
inspection at the National Archives and Records Administration (NARA).
For information on the availability of this material at NARA, telephone
202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_
federal_regulations/ibr_locations.html. Also, the material is available for inspection at any
OSHA Regional Office or the OSHA Docket Office (U.S. Department of
Labor, 200 Constitution Avenue, NW., Room N-2625, Washington, DC 20210;
telephone 202-693-2350 (TTY number: 877-889-5627)).
Table of Contents
I. Background
II. Direct Final Rulemaking
III. Summary and Explanation of Revisions to the Acetylene Standard
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 of 1995
G. Public Participation
V. Authority and Signature
I. Background
This action is part of a rulemaking project instituted by the
Occupational Safety and Health Administration ("OSHA" or "the
Agency") to update OSHA standards that reference or include language
from outdated standards published by standards developing organizations
("SDO standards") (69 FR 68283). The SDO standards referenced in
OSHA's Acetylene Standard (29 CFR 1910.102) are among the SDO standards
that the Agency identified for revision.
OSHA adopted the Acetylene Standard in 1974 pursuant to Section
6(a) of the Occupational Safety and Health Act of 1970 (OSH Act; 29
U.S.C. 651, 655). This section allowed OSHA, during the first two years
after passage of the OSH Act, to adopt existing Federal and national
consensus standards as OSHA safety and health standards, including the
current Acetylene Standard.
After OSHA announced the SDO rulemaking project, the Agency met
with the Compressed Gas Association ("CGA") about the rulemaking
project. CGA, a private standards organization, provided detailed
recommendations on updating SDO standards referenced in OSHA standards,
including the Acetylene Standard (Ex. OSHA-2008-0034-0003). Thereafter,
the U.S. Chemical Safety and Hazard Investigation Board ("Chemical
Safety Board") also recommended that OSHA update the SDO standards
referenced in the Acetylene Standard (Ex. OSHA-2008-0034-0004).
II. Direct Final Rulemaking
In a direct final rulemaking, an agency publishes a direct final
rule in the Federal Register along with a statement that the rule will
become effective unless the agency receives significant adverse comment
within a specified period. The agency also publishes concurrently an
identical proposed rule. If the agency receives no significant adverse
comment, the direct final rule goes into effect. If, however, the
agency receives significant adverse comment, the agency withdraws the
direct final rule and treats the comments as submissions on the
proposed rule.
OSHA uses direct final rules in the SDO rulemaking project because
it expects the rules to: Be noncontroversial; provide protection to
employees that is at least equivalent to the protection afforded to
them by the outdated SDO standard; and impose no significant new
compliance costs on employers (69 FR 68283, 68285). OSHA is using
direct final rules to update or, when appropriate, revoke references to
outdated national SDO standards in OSHA rules (see, e.g., 69 FR 68283,
70 FR 76979, and 71 FR 80843).
For purposes of the direct final rule, 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. OSHA will not consider a comment recommending
additional revisions to a rule to be a significant adverse comment
unless the comment states why the direct final rule would be
ineffective without the revisions. If OSHA receives a timely
significant adverse comment, the Agency will publish a Federal Register
notice withdrawing the direct final rule no later than 90 days after
the publication date of the notice.
OSHA believes that the revisions made to the Acetylene Standard by
this direct final rule do not compromise the safety of employees, and
instead enhance employee protection. For example, the updated Acetylene
Standard includes mandatory requirements for acetylene piping systems,
has special requirements for high-pressure piping systems, and
prohibits storage of acetylene cylinders in confined spaces--
requirements that are not included in the current SDO standards. The
updated SDO standards also provide employers with new and more
extensive information than the current standards, which should
facilitate compliance. OSHA believes that replacing the unenforceable
SDO standard in Sec. 1910.102(b) (i.e., Compressed Gas Association
Pamphlet G-1.3-1959; see discussion below under Section III.A ("Sec.
1910.102(c)--Generators and filling cylinders")) clarifies employers'
compliance obligations and prevents inappropriate enforcement action,
while also increasing employee protection.
The Agency determined that updating and replacing the SDO standards
in the Acetylene Standard is appropriate for direct final rulemaking.
As described below, the revisions will make the requirements of OSHA's
Acetylene Standard consistent with current industry practices, thereby
eliminating confusion and clarifying employer obligations. Eliminating
confusion and clarifying employer obligations should increase employee
safety while reducing compliance costs.
III. Summary and Explanation of Revisions to the Acetylene Standard
This direct final rule updates the SDO standards referenced in the
three paragraphs that comprise the Acetylene Standard. The Compressed
Gas Association (CGA) published several editions of these SDO standards
after OSHA adopted them in 1974, and one of these standards (i.e.,
Compressed Gas Association Pamphlet G-1.4-1966), is no longer available
for purchase from CGA. Therefore, to ensure that employers have access
to the latest safety requirements for managing acetylene, this
rulemaking is adopting the requirements specified in the most recent
versions of the SDO standards.
The following discussion provides a summary of the revisions OSHA
is making to paragraphs (a), (b), and (c) of the Acetylene Standard.
A. Section 1910.102(a)--Cylinders
For paragraph (a) of Sec. 1910.102, the direct final rule is
replacing the reference to the 1966 edition of CGA Pamphlet G-1
("Acetylene") (Ex. OSHA-2008-0034-0005) with the most recent (i.e.,
2003) edition of that standard (also entitled "Acetylene") ((Ex.
OSHA-2008-0034-0006). According to CGA, the 2003 edition is the fifth
revision of the standard since OSHA adopted the 1966 edition in 1974
(Ex. OSHA-2008-0034-0003).
In reviewing CGA-1-2003, OSHA identified two provisions in that
standard that appear to be substantive revisions from the 1966 edition.
First, the last provision of paragraph 5.2 in the 2003 edition prohibits
storing acetylene cylinders in confined spaces such as drawers, closets,
unventilated cabinets, automobile trunks, or toolboxes. In addition, the
document recommends that acetylene cylinders should not be stored or
transported in automobiles or any enclosed vehicles. The 1966 edition
contains neither the above prohibition nor recommendation. Second, both
editions recommend flow rates that will minimize withdrawal of liquid solvent
when releasing acetylene from a cylinder; however, the recommended flow
rates differ between the two editions. Paragraph 5.3.3.13 of the 1966
edition specifies that the flow rate should be one-seventh of the
capacity of the cylinder per hour regardless of the duration of use,
while paragraph 6.2 of the 2003 edition recommends a flow rate of one-
tenth of the cylinder capacity per hour during intermittent use, and
one-fifteenth of the cylinder capacity per hour during continuous
use.\1\
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\1\ Note that both of these flow-rate provisions are advisory,
not mandatory.
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Other differences between the 1966 and 2003 editions of CGA G-1
include adding the following sentence to the provision warning
employers to avoid abnormal mechanical shocks that could damage
cylinders, valves, and pressure-relief devices: \2\ "This [avoiding
abnormal mechanical shocks] is especially important on those small
cylinders not equipped with protection caps." This sentence notifies
employers that the valves of small cylinders are especially susceptible
to damage (and possible release of acetylene) because protective caps
or guards do not cover the valves. Similarly, in the 2003 edition, CGA
added a provision to section 6.2 ("Withdrawing acetylene from
cylinders") \3\ requiring employers to "[v]isually examine the CGA
connection on the cylinder and remove any visible contamination before
connecting the regulator. Clean out the contaminant using nitrogen,
air, or a clean rag. Avoid opening an acetylene cylinder valve without
a suitable regulator and flow restrictor such as a torch attached."
This provision prevents the following two hazards: (1) Acetylene-
related explosions (by removing contaminants that could serve as an
ignition source), and (2) massive releases of acetylene into the
workplace (by notifying employers to use suitable regulators and
restrictors to control the rate at which acetylene flows from a
cylinder).
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\2\ See paragraph 5.2.1 of the 1966 edition, and the first
paragraph of section 6.1 of the 2003 edition.
\3\ Section 5.3 of the 1966 version regulates the withdrawal of
acetylene from cylinders.
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The remaining differences between the 1966 and 2003 editions
include: Making plain-language revisions to the text; providing
measurements using the International System of Units; listing current
Department of Transportation specifications; presenting guidance in the
2003 edition on how to handle leaking cylinders; and noting in the 2003
edition that commercial acetylene generally is considered nontoxic. CGA
also added text to the 2003 edition that prohibits tightening leaking
fuseplugs or valves while the cylinder is under pressure, as well as
enhanced illustrations (Figure 1) of acetylene cylinder-shell
constructions.
OSHA believes that the provisions of CGA G-1-2003 are consistent
with the usual and customary practice of employers in the industry, and
has determined that incorporating CGA G-1-2003 into paragraph (a) of
Sec. 1910.102 does not add compliance burden for employers. OSHA
invites the public to comment on whether the revisions made to CGA G-1-
1966 in the 2003 edition of the standard represent current industry
practice.
B. Section 1910.102(b)--Piped Systems
CGA no longer publishes CGA Pamphlet G-1.3-1959 ("Acetylene
Transmission for Chemical Synthesis") (Ex. OSHA-2008-0034-0007). In
addition, both this standard and its recent replacement (i.e., Part 3
of CGA G-1.2-2006 ("Acetylene piping"), (Ex. OSHA-2008-0034-0008))
consist entirely of advisory provisions. Under existing law (see, e.g.,
Usery v. Kennecott Copper Corporation (577 F.2d 1113 (10th Cir. 1977)),
OSHA cannot enforce advisory provisions. Therefore, this direct final
rule revises paragraph (b) of Sec. 1910.102 to refer instead to the
requirements for acetylene piping systems specified in Chapter 9
("Acetylene Piping") of NFPA 51A-2006 ("Standard for Acetylene
Charging Plants") (Ex. OSHA-2008-0034-0009) or Chapter 7 ("Acetylene
Piping") of NFPA 51A-2001 ("Standard for Acetylene Charging Plants")
(Ex. OSHA-2008-0034-0010). Whether employers use NFPA 51A-2006 or NFPA
51A-2001 depends on when the facilities, equipment, structures, or
installations used to generate acetylene or to charge (fill) acetylene
cylinders were approved for construction or installation. (See
discussion of which NFPA standard applies in Section III.C below
("Sec. 1910.102(c)--Generators and filling cylinders").)
The piping-system requirements specified in NFPA 51A-2006 or NFPA
51A-2001 are not as extensive as the requirements contained in either
CGA Pamphlet G-1.3-1959 or Part 3 of CGA G-1.2-2006. However, OSHA
believes that the piping-system requirements in the two NFPA standards
will provide employers with important information for installing and
maintaining piping systems used to transfer acetylene until a more
detailed (and enforceable) standard becomes available. In addition,
unlike CGA Pamphlet G-1.3-1959, the two NFPA standards have special
requirements for high-pressure acetylene piping systems, which OSHA
believes will likely increase employee protection. Meanwhile, paragraph
(b)(iv) of Sec. 1910.102 refers employers to Part 3 of CGA G-1.2-2006
for additional information on acetylene piping systems.
OSHA believes that the revisions to Sec. 1910.102(b) represent the
usual and customary practice of the industry today. Therefore, OSHA
concludes that making these revisions will not impose an additional
compliance burden on employers. Accordingly, OSHA requests public
comment on the extent to which the revisions made in Sec. 1910.102(b)
represent current industry practice.
C. Section 1910.102(c)--Generators and Filling Cylinders
CGA no longer publishes the consensus standard referenced in
paragraph (c) of CGA G-1.4-1966 ("Standard for Acetylene Charging
Plants") (Ex. OSHA-2008-0034-0011). In 1970, the National Fire
Protection Association (NFPA) adopted this CGA standard as NFPA 51A
("Standard for Acetylene Charging Plants") (Ex. OSHA-2008-0034-0012).
NFPA manages revisions to this standard, the latest versions of which
it published in 2001 and 2006.
Section 1.4.1 of the 2006 standard excepts from the standard any
"facilities, equipment, structures, or installations that existed or
were approved for construction or installation prior to the effective
date of the standard." \4\ This section also states, "Where
specified, the provisions of this standard shall be retroactive." \5\
Therefore, this provision requires compliance with the entire standard
only when facilities, equipment, structures, or installations were
approved for construction or installation on or after February 16,
2006, the effective date of the 2006 standard. However, the 2001 edition of NFPA
51A (Ex. OSHA-2008-0034-0013) has no effective-date provision, and
applies retroactively to all facilities, equipment, structures, or
installations that existed (or were approved for construction and
installation) prior to February 16, 2006.
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\4\ OSHA interprets the phrase "were approved for construction
or installation prior to the effective date of the standard" to
mean that construction and installation occurred on or after the
effective date of the standard.
\5\ OSHA found no such provisions in the standard.
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OSHA is requiring in this direct final rule that employers comply
with NFPA 51A-2001, provided they demonstrate that the installations,
facilities, equipment, or structures used to generate acetylene or to
charge (fill) acetylene cylinders existed, or were approved for
construction or installation, prior to February 16, 2006. Employers
having installations, facilities, equipment, or structures approved for
construction or installation on or after February 16, 2006, must comply
with NFPR 51A-2006.\6\ By removing the reference to an outdated,
unavailable standard from Sec. 1910.102(c), and updating the
referenced standards to be consistent with current industry practices,
OSHA believes that the revisions to Sec. 1910.102(c) will reduce
regulatory confusion and ensure up-to-date employee protection.
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\6\ While not mandated, OSHA encourages employers covered by
NFPA 51A-2001 to comply with the requirements of NFPA 51A-2006.
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While many of the differences between CGA G-1.4-1966 and NFPA 51A-
2001 and -2006 involve minor revisions to the text, usually to update
the terminology or to improve the comprehensibility of the text, a
number of the differences are substantive. OSHA compiled lists of these
substantive differences, and is making these lists available in the
docket at http://www.regulations.gov (see Exs. OSHA-2008-0034-0014 and
-0015).
OSHA presumes that employers in the industry currently apply the
requirements of NFPA 51A-2001 to installations, facilities, equipment,
or structures constructed or installed prior to February 16, 2006, and
that they apply NFPA 51A-2006 to installations, facilities, equipment,
or structures approved for construction or installation on or after
February 16, 2006. Consequently, OSHA has determined that this direct
final rule will impose no additional compliance burden on these
employers. OSHA invites the public to comment on the extent to which
employers involved in charging acetylene cylinders already comply with
NFPA 51A-2001 and -2006, as well as any additional burden this direct
final rule imposes on these employers.
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 "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) 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 OSHA is updating under this rulemaking. In
fact, this rulemaking likely will enhance employee safety by adding
requirements, eliminating confusing requirements, and clarifying
employer obligations. Therefore, it is unnecessary to determine
significant risk, or the extent to which this rule would reduce that
risk, as typically is required by Industrial Union Department, AFL-CIO
v. American Petroleum Institute (448 U.S. 607 (1980)).
B. Preliminary Economic Analysis and Regulatory Flexibility Act
Certification
The direct final rule is not "economically significant" as
specified by Executive Order 12866, or a "major rule" under Section
804 of the Small Business Regulatory Enforcement Fairness Act of 1996
("SBREFA"; 5 U.S.C. 804). The direct final rule does not impose
significant 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 Executive Order 12866 and the relevant
statutes. (While not economically significant, as part of OSHA's
regulatory agenda, the direct final rule is a "significant regulatory
action" under Executive Order 12866.)
The direct final rule simply updates references to outdated SDO
standards in OSHA's Acetylene Standard. The Agency concludes that the
revisions will not impose any additional costs on employers because it
believes that the updated SDO standards represent the usual and
customary practice of employers in the industry. Consequently, the
direct final rule imposes no costs on employers. Therefore, OSHA
certifies that it will not have a significant impact on a substantial
number of small entities. Accordingly, the Agency is not preparing a
regulatory flexibility analysis under the SBREFA (5 U.S.C. 601 et
seq.).
C. OMB Review Under the Paperwork Reduction Act of 1995
Neither the existing nor updated SDO standards addressed by this
direct final rule contain collection of information requirements.
Therefore, this direct final rule does not impose or remove 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 may respond to this paperwork determination
by sending 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 submit these 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, OSHA will not consider any comment
received on this paperwork determination to be a "significant adverse
comment" as specified under Section II ("Direct Final Rulemaking")
of this notice.
To make inquiries, or to request other information, contact Mr.
Todd Owen, Directorate of Standards and Guidance, OSHA, Room N-3609,
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210; telephone (202) 693-2222.
D. Federalism
OSHA reviewed this direct final rule in accordance with the
Executive Order on Federalism (Executive Order 13132, 64 FR 43255,
August 10, 1999), which requires that Federal agencies, to the extent
possible, refrain from limiting State policy options, consult with
States prior to taking any actions that would restrict State policy
options, and take such actions only when clear constitutional authority
exists and the problem is national in scope. Executive Order 13132 provides
for preemption of State law only with the expressed consent of Congress.
Any such preemption must be limited to the extent possible.
Under Section 18 of the Occupational Safety and Health Act of 1970
("OSH Act"; U.S.C. 651 et seq.), Congress expressly provides that
States may adopt, with Federal approval, a plan for the development and
enforcement of occupational safety and health standards; States that
obtain Federal approval for such a plan are referred to as "State-Plan
States." (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 their own requirements for occupational
safety and health standards.
While OSHA drafted this direct final rule to protect employees in
every State, Section 18(c)(2) of the Act permits State-Plan States and
Territories to develop and enforce their own standards for acetylene
operations provided these requirements are at least as effective in
providing safe and healthful employment and places of employment as the
requirements specified in this direct final rule.
In summary, this direct final rule complies with Executive Order
13132. In States without OSHA-approved State Plans, any standard
developed from this direct final rule would limit State policy options
in the same manner as every standard promulgated by OSHA. In States
with OSHA-approved State Plans, this rulemaking would not significantly
limit State policy options.
E. State-Plan States
When Federal OSHA promulgates a new standard or a more stringent
amendment to an existing standard, the 26 States or 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 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.
When OSHA promulgates a new standard or amendment that does not impose
additional or more stringent requirements than the existing standard,
State-Plan States are not required to amend their standards, although
OSHA may encourage them to do so.
OSHA has determined that the State-Plan States must adopt
provisions comparable to the provisions in this direct final rule
within six months after the effective date of the rule. OSHA believes
that the provisions of this direct final rule provide employers in
State-Plan States and Territories with new and critical information and
methods necessary to protect their employees from the hazards found in
and around workplaces engaged in acetylene operations. The 26 States
and territories with OSHA-approved State Plans are: Alaska, Arizona,
California, Connecticut, Hawaii, Indiana, Iowa, Kentucky, Maryland,
Michigan, Minnesota, Nevada, New Mexico, New Jersey, New York, North
Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah,
Vermont, Virginia, Virgin Islands, 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. Until a State-Plan State/Territory promulgates its own comparable
provisions based on this direct final rule, Federal OSHA will provide
the State/Territory with interim enforcement assistance, as
appropriate.
F. Unfunded Mandates Reform Act of 1995
OSHA reviewed this direct final rule in accordance with the
Unfunded Mandates Reform Act of 1995 ("UMRA"; 2 U.S.C. 1501 et seq.)
and Executive Order 12875 (56 FR 58093). As discussed above in Section
IV.B ("Preliminary Economic Analysis and Regulatory Flexibility Act
Certification") of this notice, the Agency determined that this direct
final rule will not impose 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") of this
notice, 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.
G. Public Participation
OSHA requests comments on all issues concerning this direct final
rule. The Agency also welcomes comments on its determination that this
direct final rule has no negative economic or other regulatory impacts
on employers, and will increase employee protection. 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. A full
discussion of what constitutes a significant adverse comment is
discussed above in Section II ("Direct Final Rulemaking").
The Agency will withdraw this direct final rule if it receives
significant adverse comment on the amendments contained in it, and
proceed with the companion proposed rule by addressing the comment(s)
and publishing a new final rule. Should the Agency receive a
significant adverse comment regarding some actions taken in the 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 this
direct final rule runs concurrently with that of the companion proposed
rule. Therefore, any comments received under this direct final rule
will be treated as comments regarding the companion proposed rule.
Similarly, OSHA will consider a significant adverse comment submitted
to this direct final rule as a comment to the companion proposed rule;
the Agency will consider such a comment in developing a subsequent
final rule.
Comments received will be posted without revision to http://
www.regulations.gov, including any personal information provided.
Accordingly OSHA cautions commenters about submitting personal
information such as Social Security numbers and birth dates.
List of Subjects in 29 CFR Part 1910
Acetylene, General industry, Incorporation by reference,
Occupational safety and health, Safety.
V. Authority and Signature
Jordan Barab, Acting 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 notice. The
Agency is issuing this notice 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 July 30, 2009.
Jordan Barab,
Acting Assistant Secretary of Labor for Occupational Safety and Health.
0
For the reasons stated above in the preamble, OSHA is amending 29 CFR
part 1910 as follows:
PART 1910--[AMENDED]
Subpart A--[Amended]
0
1. Revise the authority citation for subpart A of part 1910 to read as
follows:
Authority: Sections 4, 6, 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 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), and 5-2007 (72 FR 31159), 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; Public Law 106-113 (113 Stat. 1501A-222); and OMB
Circular A-25 (dated July 8, 1993) (58 FR 38142, July 15, 1993).
0
2. Amend Sec. 1910.6 as follows:
0
A. Revise paragraph (k)(3).
0
B. Remove paragraphs (k)(4) and (k)(5), and redesignate paragraphs
(k)(6) through (k)(15) as paragraphs (k)(4) through (k)(13).
0
C. Add new paragraphs (q)(34) and (q)(35).
The additions and revisions read as follows:
Sec. 1910.6 Incorporation by reference.
* * * * *
(k) * * *
(3) CGA G-1-2003 Acetylene, IBR approved for Sec. 1910.102(a).
Copies of CGA Pamphlet G-1-2003 are available for purchase from the:
Compressed Gas Association, Inc., 4221 Walney Road, 5th Floor,
Chantilly, VA 20151; telephone: 703-788-2700; fax: 703-961-1831; e-
mail: cga@cganet.com.
* * * * *
(q) * * *
(34) NFPA 51A (2001) Standard for Acetylene Cylinder Charging
Plants, IBR approved for Sec. 1910.102(b) and (c). Copies of NFPA 51A-
2001 are available for purchase from the: National Fire Protection
Association, 1 Batterymarch Park, Quincy, MA 02169-7471; telephone: 1-
800-344-35557; e-mail: custserv@nfpa.org.
(35) NFPA 51A (2006) Standard for Acetylene Cylinder Charging
Plants, IBR approved for Sec. 1910.102(b) and (c). Copies of NFPA 51A-
2006 are available for purchase from the: National Fire Protection
Association, 1 Batterymarch Park, Quincy, MA 02169-7471; telephone: 1-
800-344-35557; e-mail: custserv@nfpa.org.
* * * * *
Subpart H--[Amended]
0
3. 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
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),
5-2002 (67 FR 65008), or 5-2007 (72 FR 31159), as applicable; and 29
CFR part 11.
Sections 1910.103, 1910.106 through 1910.111, and 1910.119,
1910.120, and 1910.122 through 1910.126 also issued under 29 CFR
part 1911.
Section 1910.119 also issued under Section 304, Clean Air Act
Amendments of 1990 (Pub. L. 101-549), reprinted at 29 U.S.C. 655
Note.
Section 1910.120 also issued under Section 126, Superfund
Amendments and Reauthorization Act of 1986 as amended (29 U.S.C. 655
Note), and 5 U.S.C. 553.
0
4. Revise Sec. 1910.102 to read as follows:
Sec. 1910.102 Acetylene.
(a) Cylinders. Employers must ensure that the in-plant transfer,
handling, storage, and use of acetylene in cylinders comply with the
provisions of CGA Pamphlet G-1-2003 ("Acetylene") (Compressed Gas
Association, Inc., 11th ed., 2003).
(b) Piped systems. (1) Employers must comply with Chapter 9
("Acetylene Piping") of NFPA 51A-2006 ("Standard for Acetylene
Charging Plants") (National Fire Protection Association, 2006 ed.,
2006).
(2) When employers can demonstrate that the facilities, equipment,
structures, or installations used to generate acetylene or to charge
(fill) acetylene cylinders were installed prior to February 16, 2006,
these employers may comply with the provisions of Chapter 7
("Acetylene Piping") of NFPA 51A-2001 ("Standard for Acetylene
Charging Plants") (National Fire Protection Association, 2001 ed.,
2001).
(3) The provisions of Sec. 1910.102(b)(2) also apply when the
facilities, equipment, structures, or installations used to generate
acetylene or to charge (fill) acetylene cylinders were approved for
construction or installation prior to February 16, 2006, but
constructed and installed on or after that date.
(4) For additional information on acetylene piping systems, see CGA
G-1.2-2006, Part 3 ("Acetylene piping") (Compressed Gas Association,
Inc., 3rd ed., 2006).
(c) Generators and filling cylinders. (1) Employers must ensure
that facilities, equipment, structures, or installations used to
generate acetylene or to charge (fill) acetylene cylinders comply with
the provisions of NFPA 51A-2006 ("Standard for Acetylene Charging
Plants") (National Fire Protection Association, 2006 ed., 2006).
(2) When employers can demonstrate that the facilities, equipment,
structures, or installations used to generate acetylene or to charge
(fill) of acetylene cylinders were constructed or installed prior to
February 16, 2006, these employers may comply with the provisions of
NFPA 51A-2001 ("Standard for Acetylene Charging Plants") (National
Fire Protection Association, 2001 ed., 2001).
(3) The provisions of Sec. 1910.102(c)(2) also apply when the
facilities, equipment, structures, or installations were approved for
construction or installation prior to February 16, 2006, but
constructed and installed on or after that date.
[FR Doc. E9-18644 Filed 8-10-09; 8:45 am]
BILLING CODE 4510-26-P
