[Federal Register Volume 81, Number 192 (Tuesday, October 4, 2016)][Proposed Rules][Pages 68504-68685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19454]
Vol. 81
Tuesday,
No. 192
October 4, 2016
Part II
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Parts 1904, 1910, 1915, and 1926
Standards Improvement Project-Phase IV; Proposed Rule
Federal Register / Vol. 81 , No. 192 / Tuesday, October 4, 2016 /
Proposed Rules
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1904, 1910, 1915, and 1926
[Docket No. OSHA-2012-0007]
RIN 1218-AC67
Standards Improvement Project-Phase IV
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Proposed rule; request for comments.
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SUMMARY: In response to the President's Executive Order 13563,
"Improving Regulations and Regulatory Review," the Occupational
Safety and Health Administration (OSHA) is continuing its efforts to
remove or revise outdated, duplicative, unnecessary, and inconsistent
requirements in its safety and health standards. The current review,
the fourth in this ongoing effort, is called Standards Improvement
Project-Phase IV (SIP-IV). The goal of the proposed rulemaking is to
reduce regulatory burden while maintaining or enhancing employees'
safety and health. SIP-IV focuses primarily on OSHA's construction
standards.
DATES: Submit comments and hearing requests by December 5, 2016. All
submissions must bear a postmark or provide other evidence of the
submission date.
ADDRESSES: Submit comments and additional material using any of the
following methods:
Electronic. Submit comments and attachments electronically via the
Federal eRulemaking Portal at http://www.regulations.gov. Follow the
instructions online for making electronic submissions.
Facsimile. Commenters may fax submissions, including any
attachments that are no longer than 10 pages in length to the OSHA
Docket Office at (202) 693-1648; OSHA does not require hard copies of
these documents. Commenters must submit lengthy attachments that
supplement these documents (e.g., studies, journal articles) to the
OSHA Docket Office, Technical Data Center, Room N-2625, U.S. Department
of Labor, 200 Constitution Ave. NW., Washington, DC 20210. These
attachments must clearly identify the commenter's name, date, subject,
and docket number (i.e., OSHA-2012-0007) so the Agency can attach them
to the appropriate comments.
Regular mail, express mail, hand (courier) delivery, or messenger
service. Submit a copy of comments and any additional material (e.g.,
studies, journal articles) to the OSHA Docket Office, Docket No. OSHA-
2012-0007, Technical Data Center, Room N-2625, U.S. Department of
Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone:
(202) 693-2350 (TDY number: (877) 889-5627). Note that security
procedures may result in significant delays in receiving comments and
other written materials by regular mail. Contact the OSHA Docket Office
for information about security procedures concerning delivery of
materials by express mail, hand delivery, or messenger service. The
hours of operation for the OSHA Docket Office are 8:15 a.m.-4:45 p.m.,
e.t.
Instructions. All submissions received must include the Agency name
and the docket number for this rulemaking (i.e., OSHA-2012-0007). OSHA
places all submissions, including any personal information provided, in
the public docket without change; this information will be available
online at http://www.regulations.gov. Therefore, the Agency cautions
commenters about submitting information 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 proposed rule,
including whether these revisions will have any economic, paperwork, or
other regulatory impacts on the regulated community.
Docket. To read or download submissions or other material in the
docket (including material referenced in the preamble), go to http://www.regulations.gov, or contact the OSHA Docket Office at the address
listed above. While the Agency lists all documents in the docket in the
http://www.regulations.gov index, some information (e.g., copyrighted
material) is not publicly available to read or download through this
Web site. All submissions, including copyrighted material, are
accessible at the OSHA Docket Office. Contact the OSHA Docket Office
for assistance in locating docket submissions.
FOR FURTHER INFORMATION CONTACT:
Press inquiries. Contact Frank Meilinger, Director, OSHA Office of
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210; telephone: (202) 693-1999; email:
meilinger.francis2@dol.gov.
General and technical information. Contact Blake Skogland, Office
of Construction Standards and Guidance, OSHA Directorate of
Construction, U.S. Department of Labor, 200 Constitution Avenue NW.,
Room N-3468, Washington, DC 20210; telephone: (202) 693-2020; fax:
(202) 693-1689; email: skogland.blake@dol.gov.
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 Web page at http://www.osha.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Background
III. Summary and Explanation of the Proposed Rule
IV. Preliminary Economic Analysis and Regulatory Flexibility Act
Analysis
V. Legal Considerations
VI. OMB Review Under the Paperwork Reduction Act of 1995
VII. Federalism
VIII. State Plans
IX. Unfunded Mandates Reform Act of 1995
X. Review by the Advisory Committee for Construction Safety and
Health
XI. Public Participation
I. Executive Summary
OSHA is proposing 18 revisions to existing standards in its
recordkeeping, general industry, maritime, and construction standards,
with most of the revisions to its construction standards. The purpose
of Standards Improvement Projects (SIPs) is to remove or revise
outdated, duplicative, unnecessary, and inconsistent requirements in
OSHA's safety and health standards, which will permit better compliance
by employers and reduce costs and paperwork burdens where possible,
without reducing employee protections. OSHA is conducting SIP-IV in
response to the President's Executive Order 13563, "Improving
Regulations and Regulatory Review" (76 FR 38210). OSHA would update
three standards to align with current medical practice, including a
reduction to the number of necessary employee x-rays, updates to
requirements for pulmonary function testing, and updates to the table
used for decompression of employees during underground construction.
Additionally, the proposed revisions include an update to the consensus
standard incorporated by reference for signs and devices used to
protect workers near automobile traffic, a revision to the requirements
for roll-over protective structures to comply with current consensus
standards, updates for storage of digital x-rays and the method of calling
emergency services to allow for use of current technology, and a
revision to lockout/tagout requirements in response to a court
decision, among others. OSHA is also proposing to remove from its
standards the requirements that employers include an employee's social
security number (SSN) on exposure monitoring, medical surveillance, and
other records in order to protect employee privacy and prevent identity
fraud.
SIP rulemakings do not address new significant risks or estimate
benefits and economic impacts of reducing such risks. Overall, SIP
rulemakings are reasonably necessary under the OSH Act because they
provide cost savings, or eliminate unnecessary requirements. The Agency
does estimate cost savings and paperwork reductions for SIP
rulemakings. The Agency has estimated that one revision (updating the
method of identifying and calling emergency medical services) may
increase construction employers costs by about $28,000 per year while
two provisions (reduction in the number of necessary employee x-rays
and elimination of posting requirements for residential construction
employers) provide estimated costs savings of $3.2 million annually.
The Agency has not estimated or quantified benefits to employees from
reduced exposure to x-ray radiation or to employers for the reduced
cost of storing digital x-rays rather than x-ray films, among others.
The Agency has preliminarily concluded that the proposed revisions are
economically feasible and do not have any significant economic impact
on small businesses. The Preliminary Economic Analysis in this preamble
provides an explanation of the economic effects of the proposed
revisions.
II. Background
The purpose of the SIP-IV rulemaking is to remove or revise
outdated, duplicative, unnecessary, and inconsistent requirements in
OSHA's safety and health standards. The Agency believes that improving
OSHA standards will increase employers' understanding of their
obligations, which will lead to increased compliance, improve employee
safety and health, and reduce compliance costs.
In 1995, in response to a Presidential memorandum to improve
government regulation,\1\ OSHA began a series of rulemakings designed
to revise or remove standards that were confusing, outdated,
duplicative, or inconsistent. OSHA published the first rulemaking,
"Standards Improvement Project, Phase I" (SIP-I) on June 18, 1998 (63
FR 33450).\2\ Two additional rounds of SIP rulemaking followed, with
final SIP rules published in 2005 (SIP-II) (70 FR 1111) and 2011 (SIP-
III) (76 FR 33590).\3\
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\1\ Clinton, W.J. Memorandum for Heads of Departments and
Agencies. Subject: Regulatory Reinvention Initiative. March 4, 1995.
\2\ Revisions made by the SIP-I rulemaking included adjustments
to the medical-surveillance and emergency-response provisions of the
Coke Oven Emissions, Inorganic Arsenic, and Vinyl Chloride
standards, and removal of unnecessary provisions from the Temporary
Labor Camps standard and the textile industry standards.
\3\ In the final SIP-II rulemaking published in 2005 (70 FR
1111), OSHA revised a number of provisions in its health and safety
standards identified as needing improvement either by the Agency or
by commenters during the SIP-I rulemaking. These included updating
or removing notification requirements from several standards,
updating requirements for first aid kits to reflect newer consensus
standards, updating requirements for laboratories analyzing samples
under the vinyl chloride standard, making worker exposure monitoring
frequencies consistent under certain health standards, among other
things. The final SIP-III rule, published in 2011 (76 FR 33590),
updated consensus standards incorporated by reference in several
OSHA rules, deleted provisions in a number of OSHA standards that
required employers to prepare and maintain written training-
certification records for personal protective equipment, revised
several sanitation standards to permit hand drying by high-velocity
dryers, and modified OSHA's sling standards to require that
employers use only appropriately marked or tagged slings for lifting
capacities.
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As stated above, the President's Executive Order 13563 (E.O.),
"Improving Regulations and Regulatory Review," sets out the goals and
criteria for regulatory review, and requires agencies to review
existing standards and regulations to ensure that these standards and
regulations continue to protect public health, welfare, and safety
effectively, while promoting economic growth and job creation. The E.O.
encourages agencies to use the best, least burdensome means to achieve
regulatory objectives, to perform periodic reviews of existing
standards to identify outmoded, ineffective, or burdensome standards,
and to modify, streamline, or repeal such standards when appropriate.
The Agency believes that the SIP rulemaking process is an effective
means to improve its standards and advised the Advisory Committee for
Construction Safety and Health (ACCSH) at a public meeting held on
December 16, 2011 that it intended to review its standards under the
SIP criteria, with particular emphasis on construction standards. A
transcription of these proceedings (ACCSH Transcript) is available at
Docket No. OSHA-2011-0124-0026.
Recognizing the importance of public participation in the SIP
process, the Agency published a Request for Information (RFI) on
December 6, 2012 (77 FR 72781) asking the public to identify standards
that were in need of revision or removal, and to explain how such
action would reduce regulatory burden while maintaining or increasing
the protection afforded to employees. The Agency received 26 comments
in response to the RFI. As discussed below, several of the proposed
amendments contained in this proposed rule were recommended in the
public comments received in response to the RFI. Other proposed SIP
amendments were identified by the Agency's own internal review and by
ACCSH.
III. Summary and Explanation of the Proposed Rule
OSHA is proposing a number of actions amending its standards,
including revisions to its general industry, maritime, and construction
standards. A detailed discussion of each of the proposed revisions
follows, including a discussion of comments the Agency received in
response to the RFI. Some of the proposed revisions affect more than
one industry (i.e., general industry, construction). When proposed
revisions to a general industry standard would affect additional
industries, OSHA will discuss the revisions fully in the general
industry section and then reference the provisions affected in the
sections covering the other industries.
A. Proposed Revision in Occupational Injuries and Illnesses Recording
and Reporting Standards (29 CFR Part 1904)
Subpart C--Recording Forms and Recording Criteria, Recording Criteria
for Cases Involving Occupational Hearing Loss in 29 CFR 1904.10
The provisions of 29 CFR part 1904 provide for the recording and
reporting of occupational injuries and illnesses. Section 1904.10 sets
out the recordkeeping criteria for recording cases involving
occupational hearing loss. Current Sec. 1904.10(b)(6) provides that
"[i]f a physician or other licensed health care professional
determines that a hearing loss is not work-related or has not been
significantly aggravated by occupational noise exposure, [the employer
is] not required to consider the case work-related or to record the
case on the OSHA 300 log." Section 1904.5 provides the requirements
for determining whether an injury or illness is work-related.
To clarify the relationship between Sec. Sec. 1904.10(b)(6) and
1904.5, OSHA incorporated the following language into the recordkeeping
compliance directive:
Physician or other licensed health care professional (PLHCP)
must follow the rules set out in 1904.5 to determine if the hearing
loss is work-related. If an event or exposure in the work
environment either caused or contributed to the hearing loss, or
significantly aggravated a pre-existing hearing loss, the PLHCP must
consider the case to be work-related. It is not necessary for work
to be the sole cause, or the predominant cause, or even a
substantial cause of the hearing loss; any contribution from work
makes the case work-related. The employer is responsible for
ensuring that the PLHCP applies the analysis in Section 1904.5 when
evaluating work-related hearing loss, if the employer chooses to
rely on the PLHCP's opinion in determining recordability.
(CPL 02-00-135, Chapter 5, Section IX, Question 10-4, 01/12/2012.)
In this rulemaking, OSHA is proposing to add a specific cross
reference to Sec. 1904.5 in paragraph Sec. 1904.10(b)(6) to make the
language in Sec. 1904.10(b)(6) consistent with the above-quoted
language from the compliance directive. The reference specifies that
employers must comply with the provisions of Sec. 1904.5 when making a
determination of whether a worker's hearing loss is work-related. OSHA
believes the proposed revision will assist employers in complying with
the hearing-loss recording requirement.
B. Proposed Revisions in General Industry Standards, Shipyard
Standards, and Construction Standards (29 CFR Parts 1910, 1915, and
1926)
1. Subpart J of 1910--General Environmental Controls, Control of
Hazardous Energy (Lockout/Tagout) in 29 CFR 1910.147
The Control of Hazardous Energy (Lockout/Tagout) standard, 29 CFR
1910.147, establishes requirements for the control of hazardous energy,
including electrical, pneumatic, mechanical, hydraulic, chemical or
thermal energy, during the servicing and maintenance of machinery and
equipment. Workers who service equipment without preventing the
discharge of this energy can be electrocuted or suffer burns,
amputations, lacerations, bone fractures, or crushing injuries, among
others.
According to its terms, the lockout/tagout standard applies to
servicing and maintenance operations "in which the unexpected
energization or startup of the machines or equipment, or the release of
stored energy could cause injury to employees" (Sec.
1910.147(a)(1)(i) (emphasis in original)). Because OSHA believes the
term "unexpected" has been misinterpreted to exclude some operations
where employees are subject to injury from startup or the release of
stored energy, the Agency is proposing to remove the word from Sec.
1910.147(a)(1) and several other places it appears in the standard
(Sec. Sec. 1910.147(a)(2)(iii)(A), (a)(3)(i), (b), (c)(1), (c)(4)(i),
(f)(4), and in Appendix A). The lockout/tagout standard was designed to
protect workers from being injured if a machine or other piece of
equipment they are servicing releases stored energy, for example, by
starting or moving during the servicing. The standard protects these
employees by requiring that machines or equipment be de-energized and
locked or tagged out by the worker performing the servicing or
maintenance before the work is performed. The essence of the standard's
protection is that a de-energized machine or piece of equipment cannot
be restarted unless the worker servicing it personally removes the
lockout or tagout device he or she has applied.
Thus, OSHA intended the phrase "unexpected energization" to mean
any re-energization or startup that occurs before the servicing
employee removes the lockout/tagout device from the energy isolation
device or equivalent energy control mechanism.
In line with this intent, OSHA has historically interpreted the
term "unexpected energization" to mean energization that is
unintended or unplanned by the servicing employee (72 FR 72452, 72496,
December 20, 2007; CPL 02-00-147). OSHA believes that preventing this
type of unintended or unplanned energization during servicing is
necessary to fully effectuate the standard's purpose of protecting
workers through the control of hazardous energy. (See CPL 02-00-147,
The Control of Hazardous Energy--Enforcement Policy and Inspection
Procedures at 3-1 (Feb. 11, 2008) ("Quite simply, the [lockout/tagout]
standard is violated when an employee is, or may be, exposed to
hazardous energy that has not been isolated, even if the employee knows
that the energy has not been controlled and continues to constitute a
hazard."))
Several decisions of the Occupational Safety and Health Review
Commission (OSHRC) support this interpretation. In Burkes Mechanical,
Inc., 21 BNA OSHC 2136, 2139 & n.4 (No. 04-0475, 2007), OSHRC rejected
an argument that the lockout/tagout standard did not apply to employees
who were servicing conveyor equipment that was operating. The fact that
they knew the equipment was moving did not mean that the hazard fell
outside the scope of the standard. Similarly, OSHRC found the standard
applied in Otis Elevator Co., 24 BNA OSHC 1081 (No. 09-1278, 2013),
aff'd, 762 F.3d 116 (D.C. Cir. 2014), where an employee was trying to
unjam the stuck gate assembly of an elevator car without proper energy
control measures in place. The energization was unexpected because,
although the worker knew the gate assembly would start to move when
unjammed, he could not predict when it would become unjammed. The
United States Court of Appeals for the District of Columbia Circuit
affirmed OSHRC's decision for the same reason. Otis Elevator Co. v.
Secretary of Labor, 762 F.3d 116, 122 (D.C. Cir. 2014).
On the other hand, OSHA's understanding of the standard has not
always been accepted. In Reich v. General Motors Corp., Delco Chassis
Div. (GMC Delco), 17 BNA OSHC 1217 (Nos. 91-2973, 91-3116, 91-3117,
1995); aff'd 89 F.3d 313 (6th Cir. 1996), both OSHRC and the United
States Court of Appeals for the Sixth Circuit rejected OSHA's
interpretation. Instead they held that the lockout/tagout standard did
not apply where a startup procedure for a machine provided a warning to
a worker servicing it that it was about to start. In that case, workers
were servicing machines that used an eight-to-twelve-step startup
procedure, including time delays, and audible or visual warnings. The
court and OSHRC held that, because these features would warn the
servicing employees that the machines were about to start, the startup
would not be "unexpected." According to the Sixth Circuit, "the
plain language of the lockout standard unambiguously renders the rule
inapplicable where an employee is alerted or warned that the machine
being serviced is about to activate." 89 F.3d at 315.
OSHA believes that the GMC Delco decisions fundamentally
misconstrue the "unexpected" language of the lockout/tagout standard
by allowing employers to use warning and delay systems as alternatives
to following the requirements of the standard. Warning devices are not
as protective as a lockout/tagout program, and the standard does not
allow them to be used as an alternative to a lockout/tagout program.
Indeed, the exclusive use of warning devices subverts the intent of the
standard by removing control over the hazardous energy from individual
authorized employees and instead placing the burden on those exposed
employees to become cognizant of and to recognize the warnings, so that
they can attempt to escape danger zones before they are injured. In
adopting the standard, OSHA considered this approach to be impractical
and dangerous. Instead, OSHA intended to protect employees
effectively from all forms of hazardous energy by isolating
machines from their energy sources during servicing and/or
maintenance and providing the workers who were servicing them with
control over the energy isolation devices (see CPL 02-00-147 at 3-3 &
ch. 4).
In addition, by holding that work on a device that gives warning
before startup does not fall within the standard, the GMC Delco
decisions, in essence, require a case-by-case assessment of various
warning schemes to determine the applicability of the standard. To
enforce the standard consistent with those decisions, OSHA has provided
its compliance officers with 11 different factors to evaluate to
determine whether particular warning devices are adequate and reliable
enough to allow all employees to escape all types of hazardous energy
in all circumstances that may occur (see CPL 02-00-147 at 3-5 to 3-6).
This creates a degree of uncertainty about the applicability of the
standard for the regulated community that OSHA did not intend.
As a result of the GMC Delco decisions, OSHA is proposing to remove
the term "unexpected" from the lockout/tagout standard to revert to
its original understanding of the standard. The proposal is intended to
make clear that the lockout/tagout standard covers all equipment
servicing activities in which there are energization, startup, or
stored energy hazards.
This proposal is consistent with the court's recognition that the
rulemaking process provides OSHA with the opportunity to change the
application of the lockout/tagout standard. GMC Delco, 89 F.3d at 316.
It will also make the standard consistent with OSHA's shipyard lockout/
tagout standard, which is almost identical to the general industry
standard except that it omits the word "unexpected" from the scope
provision. 29 CFR 1915.89. The shipyard lockout/tagout proposal gave
the same reasons for deleting the word as are provided here (72 FR
72452, 72496, December 20, 2007), and OSHA finalized the rule after
failing to receive any comments addressing the issue. (76 FR 24576,
24704, May 2, 2011).
Removing the word "unexpected" will improve protection of workers
under the standard, eliminate the confusion regarding applicability of
the standard caused by the GMC Delco decisions, and make the lockout/
tagout standard consistent with the lockout/tagout provisions in the
General Working Conditions in Shipyard Employment standard.
2. Subpart Z of 1910, 1915, and 1926--Toxic and Hazardous Substances,
Asbestos in 29 CFR 1910.1001, Inorganic Arsenic in 29 CFR 1910.1018,
Cadmium in 29 CFR 1910.27, Coke Oven Emissions in 29 CFR 1910.29,
Acrylonitrile in 29 CFR 1910.1045, Asbestos in 29 CFR 1915.1001,
Asbestos in 29 CFR 1926.1101, Cadmium in 29 CFR 1926.1127
OSHA is proposing a series of revisions to requirements addressing
employee chest X-rays in the Agency's health standards. In particular,
OSHA is proposing to remove the requirement in several of its standards
that employers provide periodic chest X-rays to screen for lung cancer;
to allow employers to use digital films and other reasonably-sized
standard films for X-rays; and to update terminology and references to
ILO guidelines included in its asbestos standards.
Removing Periodic Chest X-Ray Requirements for Lung-Cancer Screening
OSHA requires medical surveillance in its health standards to
detect early indications of adverse health effects in exposed workers
before symptoms occur, so that appropriate interventional measures can
be taken. Several OSHA standards currently require periodic chest X-
rays (CXR), also referred to as posterior-anterior CXR, radiographs, or
roentgenograms (a term no longer used). When the Agency published these
standards, routine screening for lung cancer with CXR was appropriate
clinical practice. However, since then, large studies with many years
of follow-up have not shown a benefit to CXR screening, either on lung
cancer incidence or mortality. Therefore, OSHA is proposing to remove
the requirement for periodic CXR in the following standards: Sec. Sec.
1910.1018, Inorganic Arsenic; 1910.1029, Coke Oven Emissions; and
1910.1045, Acrylonitrile. OSHA is not proposing to remove the
requirement for a baseline CXR in these, or any other, standards. OSHA
is also not proposing to remove the CXR requirements in standards where
it is used for purposes other than periodic screening for lung cancer.
For example, the proposal does not affect periodic CXRs required by
OSHA's standards to detect or monitor the progression of
pneumoconiosis.
Similarly, OSHA is proposing to amend Appendix H of the asbestos
standard, Sec. 1910.1001.\4\ Appendix H provides non-mandatory
guidelines for asbestos medical exposure, and OSHA proposes to include
the text "Plural plaques and thickening may be observed on chest X-
rays." OSHA is retaining CXRs in the asbestos standard to continue
screening for asbestosis, and the proposed text notes the changes
related to asbestosis that can be seen on CXRs. The change thus
explains the purpose of the CXR.
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\4\ OSHA is also proposing the same change for the parallel
appendices in the Maritime and Construction Asbestos standards, 29
CFR 1915.1001 Appendix I and 1926.1101 Appendix I.
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Section 6(b)(7) of the Occupational Safety and Health Act, 29
U.S.C. 655(b)(7), allows OSHA to modify medical examination
requirements in existing standards when "warranted by experience,
information, or medical or technological developments." OSHA has used
this authority on several occasions. For example, when contemporary
evidence indicated that sputum cytology did not improve lung-cancer
survival rates, OSHA removed the sputum-cytology-examination
requirements from the Coke Oven and Inorganic Arsenic standards in the
SIP-I rulemaking (63 FR 33450, 33458-59, June 18, 1998). In addition,
OSHA also reduced CXR frequencies from semi-annual to annual for some
workers exposed to inorganic arsenic and coke oven emissions in SIP-I.
The Agency based this reduction on data available at the time
indicating that semi-annual x-rays provided no additional protection,
when compared to annual x-rays, in improving the detection of, and
survival from, lung cancer for higher risk persons (63 FR 33459-60).
This eliminated unnecessary radiation exposure for employees and
reduced the burden on employers. OSHA retained the medical history and
physical-examination requirements in these standards.
For the reasons discussed below, OSHA has made a preliminary
determination that the current literature shows that there is no
evidence of benefit, either in lung cancer incidence or mortality, from
screening with CXR in the general population. The primary goal of
population-based screening is to detect disease at an early stage when
cure or control is possible, thereby decreasing the number of people
who die from the disease (Black and Welch, 1997; U.S. Preventive
Services Task Force (USPSTF), 2013; Mazzone, 2012).\5\ Several large-
scale, randomized controlled trials have been conducted over the years
to determine whether screening with chest x-rays, with or without the
addition of sputum cytology tests, was effective in reducing mortality from
lung cancer. These studies are discussed below. The Mayo Lung Project
compared participants in an "intervention" group, who were offered chest
radiography and sputum cytology every four months, with those in a
"control" group offered standard medical care. Participants were
middle-aged and older men who were chronic heavy cigarette smokers and
thus at high risk of developing lung cancer. After the initial
prevalence screening, 9,211 male smokers aged 45 and older who
completed the prevalence screening with negative results and who
qualified for incidence rescreening were randomized to either of the
two groups. The more screening-intensive intervention group was
encouraged (and reminded) to undergo free chest x-rays and free sputum
cytology tests every four months for six years. While the "controls"
were offered standard medical care, they also were advised to undergo
annual chest x-rays and sputum cytology tests, resulting in significant
contamination of the control group by CXR performed off protocol.
Follow-up ranged from one to five years, and averaged three years.
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\5\ Materials referenced are posted on http://regulations.gov,
Docket No. OSHA-2012-0007, and are accessible at OSHA's Docket
Office, U.S. Department of Labor, 200 Constitution Avenue NW., Room
N2625, Washington, DC 20210; telephone (202) 693-2350. (OSHA's TTY
number is (877) 889-5627.) OSHA Docket Office hours of operation are
8:15 a.m. to 4:45 p.m., E.T.
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At the end of the follow-up (July 1, 1983), the Mayo Clinic study
observed no difference in lung cancer mortality between the
intervention and control groups, but observed an excess of 46 cases in
the intervention group, a possible indication of over-diagnosis in lung
cancer screening. The excess number of cases also could have resulted
from short follow-up time (that is, additional cases may have been
observed in the control group if the study lasted longer). In summary,
this trial demonstrated significantly increased lung cancer detection,
resectability, and survivorship after detection in the group offered
screening every four months compared with the control group. However,
there was no significant difference in lung cancer mortality rate
between the two groups. Contamination of the control group, together
with 25 percent non-compliance in the screened group, limited the
statistical power of this trial. The authors concluded that "results
do not justify recommending large-scale radiologic or cytologic
screening for early lung cancer at this time (Fontana, et al., 1984;
Fontana, et al., 1991)."
The term "over-diagnosis" refers to identifying through screening
a disease that would otherwise remain undiagnosed during an
individual's lifetime (i.e., because symptoms do not present). Over-
diagnosis is a serious potential risk of screening, as the evaluation
and treatment of over-diagnosed cancer can lead to morbidity, and even
to premature mortality (Black, 2000).
In order to assess whether over-diagnosis accompanies lung cancer
CXR screening, Marcus et al. (2006) extended the follow-up of the same
Mayo Clinic population studied by Fontana et al. for an additional 16
years using a randomized controlled trial with a stop-screen feature. A
stop-screen study design (i.e., one in which screening is terminated
after a prespecified number of years but follow-up continues for
ascertainment of cases of disease and deaths) provides the best setting
in which to assess whether over-diagnosis accompanies screening (Marcus
et al., 2006). If over-diagnosis does not occur, the cumulative number
of cases in each group will be equal after screening stops and the
number of cancers in the control group identified through symptoms
catches up with those identified earlier through screening (Marcus et
al., 2006).
At the start of the study in 1983, information on lung cancer
status was available for 6,101 participants. From 1971 through the end
of 1999, 585 participants in the more frequently screened group and 500
in the usual-care group were diagnosed with lung cancer. Because the
number of lung cancers in the usual care group did not equalize with
those in the more frequently screened group at the end of the study
period, the study investigators concluded that "the persistence of
excess cases in the intervention [group] after 16 years of additional
follow-up provides continued support for over-diagnosis in lung cancer
screening" (Marcus et al., 2006).
OSHA identified one study that included men who were younger than
45. A Czech study, Kubic and Polak (1986), enrolled 6,364 smokers aged
40 to 64 years. This study compared semi-annual screening using x-ray
and sputum cytology to screening at three-year intervals, and to no
screening. Although it found more earlier-stage lung cancers in both
screened groups, this study also found no significant difference in
mortality rates. In 1993, the Prostate, Lung, Colorectal, and Ovarian
(PLCO) Randomized Trial examined the question whether screening would
reduce mortality rates from PLCO cancers. In a randomized controlled
study conducted in ten screening centers in the US, 154,901
participants aged 55 through 74 years were assigned either to the group
that received annual CXR for three or four years, or to the "usual
care" (no radiographic intervention) group; 51.6 percent of the
participants were current or former smokers. All diagnosed cancers,
deaths, and causes of death were ascertained through 13 years of
follow-up or until December 31, 2009, whichever event occurred earlier
(Oken et al., 2011). The study found no statistically significant
differences in lung cancer mortality or incidence rates between the
intervention and "usual care" groups, despite finding a higher
proportion of early stage (potentially curable) lung cancers in the
screened group (Hocking et al., 2010). Of particular note is the rate
of false positives in the study; of 13,038 participants with at least
one positive CXR, 12,730, or 97.6 percent, did not test positive for
lung cancer. Furthermore, 121 participants without cancer underwent an
invasive surgical procedure (Hocking et al., 2013).
An effective screening measure should detect a disease in its early
stages before clinical signs and symptoms appear (Herman, 2006).
Patients who are diagnosed while they are still asymptomatic tend to
have better outcomes than those who are symptomatic (In, et al., 2008).
It is well documented in the radiology literature that initial CXR
misses 19-50 percent of lung cancers (Quekel, 1999). In the past
decades, several technological innovations have shown improved
sensitivity in detecting lung cancer. Several small studies have shown
that newer techniques (e.g., dual-energy subtraction radiology,
electronic bone suppression, temporal subtraction) may result in fewer
missed diagnoses of pulmonary nodules. However, no large-scale
randomized or non-randomized studies are available that assess the
sensitivity of these radiological techniques.
Baseline screening of general populations for unsuspected lung
cancer with CXR yields only a small fraction--less than one percent--of
lung cancer cases (Hocking et al., 2010; Kubik and Polak, 1986; Fontana
et al., 1984). Currently, the majority (approximately 85 percent) of
patients with lung cancer present for clinical evaluation with symptoms
(Mazzone, et al., 2014); detection of lung cancer in the remaining
(asymptomatic) patients frequently occurs when an x-ray or CT scan is
done for another reason (Mazzone et al., 2014; PubMed Health).
Several authoritative sources of health-information do not
recommend CXR for wide-scale screening. For example, the National
Cancer Institute (NCI) in its online Lung Cancer Screening PDQ
(Physician's Data Query) concluded, "Based on solid evidence,
screening with chest x-ray and/or sputum cytology does not reduce
mortality from lung cancer in the general population or in ever-smokers."
The NCI PDQ goes on to discuss the harm associated with false-positive
screenings: "Based on solid evidence, at least 95 percent of all positive
chest x-ray screening exams (but not all) do not result in a lung cancer
diagnosis. False-positive exams result in unnecessary invasive diagnostic
procedures." The NCI PDQ refers to the Oken (2011) and Marcus (2006) studies
when estimating the magnitude of over-diagnosis at 6 percent to 17 percent.
The Cochrane Collaboration, a non-profit group that reviews health-care
literature for the purpose of making empirical recommendations, updated
its original review article, "Screening for lung cancer," in 2013.
This latest review included nine trials (eight randomized controlled
studies and one controlled trial) with a total of 453,965 subjects. The
review includes many of the studies discussed here. The authors
concluded:
The current evidence does not support screening for lung cancer
with chest radiography or sputum cytology. Annual low-dose CT
screening is associated with a reduction in lung cancer mortality in
high-risk smokers but further data are required on the cost
effectiveness of screening and the relative harms and benefits of
screening across a range of different risk groups and settings.
(Manser et al., 2013).
Screening workers exposed to lung carcinogens is a complex issue.
Current tools, particularly CXR, have not been shown to be effective in
reducing mortality in high-risk smoking populations, and have not been
studied in worker populations (Fontana, 1984; Oken, 2011; Marcus et
al., 2011; Hocking et al., 2010). However, workers exposed to lung
carcinogens are at a higher risk for lung cancer than the general
population. OSHA conducts risk analyses as part of its regulatory
requirements, and has determined that occupational exposure to each of
these: Inorganic arsenic, coke oven emissions, and acrylonitrile, was
found to be associated with a "significant risk" of lung cancer
(Sec. Sec. 1910.1018, Inorganic Arsenic; 1910.1029, Coke Oven
Emissions; and 1910.1045, Acrylonitrile).
OSHA has also preliminarily determined that the existing evidence
is insufficient to justify using alternative screening methods to CXR.
While the National Institute for Occupational Safety and Health (NIOSH)
is currently evaluating the applicability of Low-Dose Computed
Tomographic (LDCT) as a screening tool for workers exposed to lung
carcinogens, it may be years before this research can provide a
recommendation on the efficacy of LDCT. Additionally, research is
needed on the risks associated with LDCT-associated radiation exposure
occurring during a screening protocol for workers exposed to lung
carcinogens in the workplace.
As noted earlier in this discussion, OSHA is proposing to remove
the requirement to use periodic CXR as a screening tool for lung cancer
from the following standards: Sec. Sec. 1910.1018, Inorganic Arsenic;
1910.1029, Coke Oven Emissions; and 1910.1045, Acrylonitrile.
Although OSHA is proposing to remove periodic CXR requirements from
the medical-surveillance sections of these three standards, the Agency
emphasizes that the Access to Medical and Exposure Records standard (29
CFR 1910.1020) would still require employers to maintain all medical
records, including records of CXRs previously administered. That is,
this proposed rule would not relieve employers in general industry,
maritime, and construction of the duty to maintain records of CXRs
already administered under the requirements of Sec. Sec. 1910.1018,
1910.1029, 1910.1045, 1915.1018, 1915.1045, 1926.1118, and 1926.1145
\6\ in accordance with Sec. 1910.1020.
---------------------------------------------------------------------------
\6\ The Construction and Maritime Inorganic Arsenic and
Acrylonitrile standards, Sec. Sec. 1915.1018, 1915.1045, 1926.1118,
and 1926.1145, merely reference the respective general industry
standards (Sec. Sec. 1910.1018 and 1910.1045), so OSHA is not
proposing to revise them.
---------------------------------------------------------------------------
OSHA is not proposing to remove the initial, baseline CXR
requirement in these three standards. The Agency recognizes that
requiring initial, baseline CXR at pre-placement or at the initiation
of a medical-surveillance program provides benefits to workers exposed
to lung carcinogens, their employers, and health-care professionals
evaluating those workers. For example, even with known limitations, CXR
can serve to document the absence of disease. Baseline CXR also can be
useful in preventing additional testing after detecting an abnormality
at a future date. In this regard, the PLCO Screening Trial found that
"evaluation stopped after comparison of the screening radiograph with
a prior CXR in about one-third" of those participants presenting with
an abnormal follow-up CXR (Hocking et al., 2013). When a worker
receives a CXR prompted by symptoms, physical examination, or other
indicator, and has an abnormality on that CXR, a baseline CXR from
years before with the same lesion would reduce the need for additional
evaluation (e.g., CT scans, biopsy); such evaluations can be invasive,
and lead to unnecessary irradiation for workers and additional costs
for employers. However, workers receiving baseline CXR also may undergo
invasive, potentially unnecessary work-ups and diagnostic testing for
CXR-detectable lesions that may never progress to clinical
significance. OSHA will continue to monitor the literature on baseline
chest X-rays.
Updating Other Chest X-Ray Requirements
In recent years, improvements in medical technology permit
screening with digital CXRs, also referred to as digital radiographs,
in addition to traditional film-based CXRs. The medical community is
rapidly adopting the technology, and both the International Labor
Organization (ILO) and NIOSH recently published guidelines for digital
radiographs (ILO, 2011; NIOSH, 2011).
OSHA is proposing to update the CXR requirements to allow the use
of digital radiograph in the medical surveillance provisions of its
Coke Oven Emissions, Acrylonitrile, and Inorganic Arsenic standards
discussed above, and in its three asbestos standards and two cadmium
standards. The latter standards are: Sec. Sec. 1910.1001, Asbestos
(General Industry); 1915.1001, Asbestos (Maritime); 1926.1101, Asbestos
(Construction); 1910.1027, Cadmium (General Industry); and 1926.1127
Cadmium (Construction).\7\ As noted previously, OSHA is proposing to
add the option of digital radiography standards to its existing
standards because digital radiography systems are rapidly replacing
traditional analog film-based systems in medical facilities. Another
Department of Labor Program, the Office of Workers' Compensation
Programs, published a final rule allowing the submission of digital
radiographs in connection with benefit claims, and set out quality
standards for administering and interpreting digital radiographs. (See
79 FR 21606; April 17, 2014). OSHA's proposal will codify current
Agency policy as stated in a Letter of Interpretation dated September
24, 2012 to Dr. Michael Hodgson, in which OSHA confirmed that it "will
allow, but will not require, digital radiography in place of
traditional chest roentgenograms for medical surveillance exams under
the Asbestos Standards for general industry, construction, and shipyards."
---------------------------------------------------------------------------
\7\ The Maritime Cadmium standard, Sec. 1915.1027, is a
reference to the general industry standard (Sec. 1910.1027), so
OSHA is not proposing to revise it.
---------------------------------------------------------------------------
Radiographic facilities and the physicians that are required by
OSHA standards to classify CXR according to ILO's classification
guidelines and that employ digital radiographs in their practice should
follow the NIOSH Guidelines, "Application of Digital Radiography for
the Detection and Classification of Pneumoconiosis," or the most
recent NIOSH guidance on using digital radiography to detect
pneumoconiosis. In its current guidelines, NIOSH recommends that "only
authorized ILO standard digital images should be used for classifying
digital chest images for pneumoconiosis." NIOSH does not recommend
using film-based ILO reference radiographs for comparison with digital
chest images or printed hard copies of the images. In this revision of
the chest x-ray requirements, OSHA is also proposing to allow other
reasonably-sized standard x-rays films, such as the 16 inch by 17 inch
size, to be used in addition to the 14 inch by 17 inch film specified
in some standards. In these standards, the phrase "A 14- by 17-inch
film or digital posterior-anterior chest X-ray" (or similar) would be
replaced by "A 14- by 17-inch or other reasonably-sized standard film
or digital posterior-anterior chest X-ray." This proposed change will
affect the acrylonitrile standard (Sec. 1910.1045); the inorganic
arsenic standard (Sec. 1910.1018); the coke oven standard (Sec.
1910.1029); and the asbestos standards (Sec. Sec. 1910.1001,
1915.1001, and 1926.1101).\8\ Updating this requirement ensures
consistency across standards as well as conformance with current
medical practice. This proposed change also would codify existing
Agency policy outlined in a Letter of Interpretation (February 16, 1993
to David Lee Sirott) confirming that 16 inch by 17 inch X-rays are
generally acceptable for the purpose of complying with OSHA standards.
---------------------------------------------------------------------------
\8\ And minor rewording to conform to the proposed language in
the cadmium standards (1910.1027 and 1926.1127).
---------------------------------------------------------------------------
Proposed updates also include replacement of "roentgenogram" with
"X-ray" to reflect current terminology and corrections to remove
references to semi-annual exams for certain employees in Coke Ovens
Emissions appendices, Sec. 1910.1029 App. A(VI) and App. B(II)(A), as
these exams were eliminated in the second SIP rulemaking (70 FR 1112).
In addition, the proposal makes changes to conform to the language used
in the ILO's "Guidelines for the use of the ILO International
Classification of Radiographs of Pneumoconioses," which specifically
refers to a classification system as applying to CXR, while
interpretation refers to the information translated by the physician to
the employer. Finally, the proposed revisions include updating the
version of the ILO Classification of Radiographs of Pneumoconioses to
the 2011 version (from the 1980 version), and clarifying that
classification must be accordance with the ILO classification system
(rather than "a professionally accepted Classification system") in
Appendix E of each of the three asbestos standards.
Statement of Reasonable Availability
As noted above, OSHA is incorporating the ILO Classification of
Radiographs of Pneumoconioses, Revised Edition 2011, by reference. OSHA
believes that this classification document is reasonably available to
interested parties. It is available for purchase from the International
Labour Organization (ILO), 4 route des Morillons, CH-1211 Gen[egrave]ve
22, Switzerland; telephone: +41 (0) 22 799 6111; fax: +41 (0) 22 798
8685; Web site: http://www.ilo.org/. In addition, it is available in
the docket for this rulemaking and in OSHA's docket office for review.
If OSHA ultimately finalizes this rule, the classification document
will be maintained in OSHA's national and regional offices for review
by the public.
References
Aberle, R., Adams, A., Berg, C., Black, W., Clapp, J., Fagerstrom,
R., et al. (2011). Reduced Lung-Cancer Mortality with Low-Dose
Computed Tomographic Screening. N. Engl. J. Med. 365(5): 395-409.
Bach, P.B., Mirkin, J.N., Oliver, T.K., Azzoli, C.G., Berry, D.A.,
Brawley, O.W.,... and Detterbeck, F.C. (2012). Benefits and Harms
of CT Screening for Lung Cancer: A Systematic Review. JAMA, 307(22):
2418-2429.
Black, W.C. (2000). Overdiagnosis: An Underrecognized Cause of
Confusion and Harm in Cancer Screening. Journal of the National
Cancer Institute, Vol 92 (16): 1280
Fasola, G., Belvedere, O., Aita, M., Zanin, T., Follador, A.,
Cassetti, P., et al. (2007). Low-Dose Computed Tomography Screening
for Lung Cancer and Pleural Mesothelioma in an Asbestos-Exposed
Population: Baseline Results of a Prospective, Nonrandomized
Feasibility Trial--An Alpe-Adria Thoracic Oncology Multidisciplinary
Group Study (ATOM 002). The Oncologist, 12: 1215-1224.
Fontana, R.S., Sanderson, D.R., Taylor, W.F., Woolner, L.B., Miller,
W.E., Muhm, J.R., and Uhlenhopp, M.A. (1984). Early Lung Cancer
Detection: Results of the Initial (Prevalence) Radiologic and
Cytologic Screening in the Mayo Clinic study. Am. Rev. Resp. Dis.,
130(4): 561. Abstract only.
Fontana, R.S., Sanderson, D.R., Woolner, L.B., Taylor, W.F., Miller,
W.E., Muhm, J.R., Bernatz, P.E., Payne, W.S, and Pairolero, P.C. and
Bergstralh, E.J., (1991). Screening for Lung Cancer, A Critique of
the Mayo Lung Project. Cancer, 67(supplement): 1155-1164).
Herman, C. (2006). What Makes a Screening Exam "Good"? AMA Virtual
Mentor, 8(1):34-7.
Hocking, W.G., Hu, P., Oken, M.M., Winslow, S.D., Kvale, P.A.,
Prorok, P.C., Ragard, L.R., et al. (2010). Lung Cancer Screening in
the Randomized Prostate, Lung, Colorectal, and Ovarian (PLCO) cancer
screening trial. J. Nat. Cancer Inst., 102(10): 722-731.
Hocking, W.G., Tammemagi, M.C., Commins, J., Oken, M.M., Kvale,
P.A., Hu, P.,... and Prorok, P.C. (2013). Diagnostic Evaluation
Following a Positive Lung Screening Chest Radiograph in the
Prostate, Lung, Colorectal, Ovarian (PLCO) Cancer Screening Trial.
Lung Cancer. 82(2): 238.
In, K.H., Kwon, Y.S., Oh, I.J., Kim, K.S., Jung, M.H., Lee, K.H.,
Kim, S.Y., Ryu, J.S., Lee, S.Y., Jeong, E.T., Lee, S.Y.,... Kim,
Y.C. (2009). Lung cancer patients who are asymptomatic at diagnosis
show favorable prognosis: a Korean Lung Cancer Registry Study. Lung
Cancer. 64(2): 232-7. Abstract only.
[ILO] International Labour Organization (2011). Guidelines for the
Use of the ILO International Classification of Radiographs of
Pneumoconioses, Revised Edition 2011. Geneva, Switzerland: ILO.
Kubik, A., and Polak, J. (1986). Lung Cancer Detection Results of a
Randomized Prospective Study in Czechoslovakia. Cancer, 57(12):
2427-2437.
Manser, R., Lethaby, A., Irving, L., Stone, C., Brynes, G.,
Abramson, M., and Campbell, D. (2013). Screening for Lung Cancer.
Cochrane Database Syst. Rev., The Cochrane Library, 6.
Marcus, P., Bergstralh, E.J., Zweig, M., Harris, A., Offord, K.P.,
and Fontana, R.S. (2006). Extended Lung Cancer Incidence Follow-up
in the Mayo Lung Project and Overdiagnosis. J. Nat. Cancer Inst.,
98(11).
Mazzone, P.J., Choi, H.K., and Ha, D. (2014) Lung Cancer. Cleveland
Clinic Center for Continuing Education, The Disease Management
Project, Chapter on Pulmonary Disease.
Moyer, V.A. (2014). Screening for Lung Cancer: U.S. Preventive
Services Task Force Recommendation Statement. Annals Internal Med,
160 (5).
[NCI] National Cancer Institute (Last modified 2/2014). Screening
for Lung Cancer With Chest X-Ray and/or Sputum Cytology. Retrieved
from: http://www.cancer.gov/cancertopics/pdq/screening/lung/HealthProfessional on September 16, 2014.
Oken, M., Hocking, W., Kvale, P., Andriole, G., Buys, S., Church,
T., et al. (2011). Screening by Chest Radiograph and Lung Cancer
Mortality: The Prostate, Lung, Colorectal, and Ovarian (PLCO)
Randomized Trial. JAMA, 306(17): 1865-1873.
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Quekel, L.G., Kessels, A.G., Goei, R, and van Engelshoven, J.M.
(1999). Miss rate of lung c[aacute]ncer on the chest radiograph in
clinical practice. Chest. 115(3):720-4.
Toyoda, Y., Nakayama, T., Kusunoki, Y., Iso, H., and Suzuki, T.
(2008). Brit. J. Cancer, 98: 1602-1607.
Screening for Lung Cancer, Topic Page (2013). U.S. Preventive
Services Task Force. (2013). U.S. Preventive Services Task Force.
Retrieved on September 16, 2014 from: http://www.uspreventiveservicestaskforce.org/uspstf/uspslung.htm.
3. Subpart Z of 1910--Toxic and Hazardous Substances, Pulmonary-
Function Testing Requirements for Cotton Dust in 29 CFR 1910.1043
Background
In 1978, OSHA promulgated the standard for occupational exposure to
cotton dust at 29 CFR 1910.1043 because workers exposed to cotton dust
are at risk of developing the respiratory disease, byssinosis (43 FR
27350, June 23, 1978). As described in the preambles to the proposed
and final rules, byssinosis is characterized by a continuum of effects
(41 FR 56497, 56500-56501, December 28, 1976; 43 FR 27352-27354).
Generally, workers who develop byssinosis first experience an acute
stage (also called the reactor state), with mild and apparently
reversible symptoms that occur on the first day of the work week, after
one or more days away from the workplace. Symptoms include chest
tightness, difficulty breathing, coughing, and possibly wheezing. Some
of those workers also experience temporary acute declines in lung
function over the course of a workshift as measured by pulmonary-
function testing. As the disease progresses, workers may begin to
experience symptoms on other days of the work week. Sometimes the
disease progresses into a chronic, irreversible stage that involves
permanent narrowing of bronchial tubes. Symptoms during the chronic
stage are similar to symptoms observed with emphysema and chronic
bronchitis, and include chronic cough with phlegm production and
progressive shortness of breath. At this stage, impaired lung function
associated with the disease is clearly detectable by pulmonary function
testing. Byssinosis can lead to disability or death. Rates of
progression depend on exposure levels and susceptibility of workers.
The Cotton Dust Standard contains medical-surveillance provisions
at 29 CFR 1910.1043(h). These provisions require initial and periodic
medical-surveillance examinations that include administration of a
medical questionnaire to determine if workers are experiencing symptoms
(Sec. Sec. 1910.1043(h)(2)(ii) and (h)(3)(i)). Medical surveillance
requirements also include pulmonary function testing (i.e., spirometry
testing) to objectively measure lung function and to assess changes in
lung function (Sec. 1910.1043(h)(2)(iii)).
The preamble for the final Cotton Dust standard noted the poor
accuracy and high variability of pulmonary function tests in the past,
resulting from lack of uniform specifications for equipment calibration
checks, test procedures, and personnel training (43 FR 27391). To
improve the accuracy and consistency of pulmonary function testing,
OSHA mandated specific requirements in the Cotton Dust Standard based
on recommendations from the American Thoracic Society (ATS) and the
National Institute for Occupational Safety and Health (NIOSH) (43 FR
27391; 29 CFR 1910.1043, Appendix D). Since 1978, pulmonary function
testing procedures and technology have evolved significantly, and some
of the mandates in the Cotton Dust Standard now are outdated. OSHA is
proposing to update the lung function testing requirements for the
Cotton Dust Standard to make them consistent with current practices and
technology.
Proposed Revisions
OSHA based the proposed revisions to the Cotton Dust Standard
pulmonary function testing requirements on current recommendations from
the American Thoracic Society/European Respiratory Society (ATS/ERS),
NIOSH, and the American College of Occupational and Environmental
Medicine (ACOEM). Each of these organizations is a recognized authority
on generally accepted practices in pulmonary function testing. In the
following discussion, references to generally accepted practices refer
to only those practices recommended by ATS/ERS, NIOSH, or ACOEM.
Like other respiratory diseases, byssinosis can slow the speed of
expired air and/or reduce the volume of air that can be inspired and
then exhaled. To detect and monitor these impairments, spirometry
measures the maximal volume and speed of air that is forcibly exhaled
after taking a maximal inspiration. Forced Vital Capacity (FVC) is
defined as total exhaled volume after full inspiration. Speed of
expired air is determined by dividing the volume of air exhaled in the
first second, i.e., the Forced Expiratory Volume in One Second (FEV1),
by the total FVC to give the FEV1/FVC ratio. Values obtained from
accurate and repeatable spirometry testing are then compared to
reference predicted values, which are averages expected for a person of
the same gender, age, height, and race as the employee being tested. A
spirometry result that is 100 percent of the predicted value for a
person of the same gender, age, and height and race indicates that the
individual being tested has average lung function (OSHA, 2013).
Depending upon the race of the individual and the reference value group
being used, an adjustment may need to be made on the basis of race.
This issue is discussed at greater length later in this discussion.
Values are also compared to the employees' previous measurements.
Currently, Sec. 1910.1043(h)(2)(iii) requires that health care
providers conducting medical surveillance compare the employees' values
to the predicted values in Appendix C of the standard. Appendix C
currently contains predicted values derived from equations published by
Knudson et al. (1976).
OSHA is proposing to revise this provision to specify use of the
third National Health and Nutrition Examination Survey (NHANES III)
reference data set and to replace the values currently in Appendix C
with the NHANES III values, derived from Spirometric Reference Values
from a Sample of the General U.S. Population (Hankinson et al., 1999),
which will be incorporated by reference. Currently, NIOSH (CDC/NIOSH,
2003), ATS/ERS (Pellegrino et al., 2005), and ACOEM (Townsend, 2011)
all recommend NHANES III as the most appropriate reference data set for
assessing spirometry results for individuals in the U.S. population.
The data set from NHANES III is the most recent and most representative
of the U.S. population (Hankinson et al., 1999). It lists reference
values for non-smoking, asymptomatic male and female Caucasians,
African Americans, and Mexican Americans aged 8- to 80-years old.
Strict adherence to ATS quality control standards ensured optimal
accuracy in developing this data set of spirometry values (Hankinson et
al., 1999).
OSHA also proposes to make a correction to Sec. 1910.1043,
Appendix B-II, Section B, "Occupational History Table". The table's
column titled "Tenure of Employment" contains boxes in which dates of
employment are entered. To allow the entry of dates that occurred later
than 1999, OSHA would change the column's two sub-headers to
read as follows: "From 19_ or 20_" and "To 19_ or 20_".
Statement of Reasonable Availability
As noted above, OSHA is incorporating the Spirometric Reference
Values from a Sample of the General U.S. Population (Hankinson JL,
Odencrantz JR, Fedan KB. American Journal of Respiratory and Critical
Care Medicine, 159(1):179-187, January 1999). These values are also
available to interested parties at http://www.cdc.gov/niosh/topics/spirometry/nhanes.htm. In addition, they are available at
www.regulations.gov in the docket for this rulemaking and in OSHA's
docket office for review. If OSHA ultimately finalizes this rule, the
data set will be maintained in OSHA's national and regional offices for
review by the public.
Section 1910.1043(h)(2)(iii) currently specifies that FEV1 and FVC
predicted values be multiplied by 0.85 to obtain reference values for
blacks because the Knudson data set contains reference values only for
Caucasians. However, such an adjustment for that race/ethnic group is
no longer necessary because the NHANES III data set contains reference
values for African Americans. However, the NHANES III data set does not
contain reference values for Asian Americans, who typically have
smaller lung volumes compared to Caucasians of the same age, height,
and gender (Pellegrino et al., 2005). To obtain Asian American
reference values, ATS/ERS (Redlich et al., 2014) and ACOEM (Townsend,
2011) recommend that Caucasian reference values for FVC and FEV1 be
multiplied by a factor of 0.88. Therefore, OSHA is proposing use of a
0.88 correction factor to obtain Asian American reference values for
the FVC and FEV1. Because race does not appear to affect FEV1/FVC
(ratio), OSHA is not proposing to apply a correction factor to
Caucasian values to derive a ratio for Asian Americans. If the NHANES
data set is updated to include Asian American values in the future, and
generally accepted practices endorse that data set for use in the U.S.,
OSHA will consider revising Sec. 1910.1043(h)(2)(iii).
OSHA's proposal to replace the Knudson values currently in Appendix
C with the NHANES III data set would simplify interpretation of
spirometry results by providing reference values for more race/ethnic
groups; however, neither the NHANES III nor the proposed correction
factor addresses every race/ethnic group. Therefore, OSHA is proposing
text that indicates comparison to "appropriate" race/ethnicity values
for groups not included in NHANES III. For example, using Mexican-
American values for non-Mexican-American Hispanic workers may be
appropriate. Designations of race/ethnicity are self-reported by
workers, and bi-racial or multi-racial workers should select the race
category that best describes them. OSHA's guidance document provides
some additional guidance on this topic, including a recommendation to
use Caucasian reference values for Native American Indians (OSHA,
2013).
The software for most spirometers includes the NHANES III data set,
which is identified as the Hankinson 1999 data set on some spirometers.
If software for older spirometers does not include the NHANES III data
set, users of those spirometers would be able to access the NHANES III
values online through the NIOSH calculator (CDC/NIOSH, 2010). Tables of
the NHANES III values are also available in an appendix to OSHA's
spirometry guidance for healthcare professionals that is available
online (OSHA, 2013). Therefore, NHANES III values are widely available
to spirometry providers, including those providers using older
spirometers.
Currently, paragraph (h)(2)(iii) requires an evaluation of
pulmonary function testing values using predicted values of FVC and
FEV1, which are the only reference values listed in the tables in
current Appendix C. The NHANES III reference data set includes the
lower limit of normal (LLN) as well as predicted values for FEV1, FVC,
and the FEV1/FVC ratio. The LLN for these spirometry measurements
represents the lower fifth percentile of a healthy (normal) population.
That is, 95 percent of a healthy (normal) population should have
spirometry values above the LLN, and spirometry values below the LLN
could be abnormal (OSHA, 2013). Generally accepted practices by ATS/
ERS, NIOSH, and ACOEM currently compare spirometry values to the LLN
values to identify impaired pulmonary function.
In particular, ATS/ERS (Pellegrino et al., 2005) defines airways
obstruction as an FEV1/vital capacity (VC) below the LLN. ACOEM
(Townsend, 2011) and NIOSH (CDC/NIOSH, 2003) define borderline airway
obstruction as an FEV1/FVC below the LLN, with an FEV1 between the LLN
and the predicted value; they define airways obstruction as both FEV1/
FVC and an FEV1 below the LLN. ATS/ERS, NIOSH, and ACOEM indicate that
an FVC or VC less than the LLN could indicate possible restrictive
impairment (Pellegrino et al., 2005; Townsend, 2011; CDC/NIOSH, 2003).
Therefore, OSHA is proposing to update (h)(2)(iii) to require an
evaluation of FEV1, FVC, and FEV1/FVC against the LLN and percent
predicted values to fully characterize possible pulmonary impairment in
exposed workers, which is consistent with generally accepted current
practices described above. OSHA's proposal to evaluate the FEV1/FVC
ratio in addition to FEV1 and FVC will not affect triggers for changes
in medical surveillance frequency or referral for a detailed pulmonary
examination, because the standard bases those triggers solely on FEV1
values.
However, OSHA is also proposing to change the triggers for the
frequency of medical surveillance. Currently, paragraphs (h)(3)(ii)(A)
and (B) of the standard require frequency of medical surveillance based
in part on whether the FEV1 is above or below 80 percent of the
predicted value. OSHA is proposing that the basis for frequency of
medical surveillance be whether the FEV1 is above or below the LLN. As
noted above, generally accepted practices currently use the LLN as the
basis for classifying possibly abnormal lung function. Pulmonary
function normally declines with age, and the LLN better accounts for
age-related declines than the current standard (Townsend et al., 2011).
There is evidence that the cut-off point used by the standard, 80
percent of the predicted value, can result in erroneous lung function
interpretation in adults (Pellegrino et al., 2005). Therefore, OSHA is
proposing to use the LLN to determine the frequency of lung-function
testing.
Section 1910.1043, Appendix D, sets standards for spirometric
measurements of pulmonary function. OSHA is basing the proposed changes
to Appendix D on the most recent spirometry recommendations from ATS/
ERS (Miller et al., 2005). Many of the proposed changes reflect
advances in spirometry procedures or methods of interpretation.\9\
Other proposed changes reflect technological changes associated with
the current widespread use of flow-type spirometers, in addition to
volume-type spirometers, which were in widespread use in 1978 when OSHA
published the current standard, and remain in use today. The proposed
changes would apply only to equipment purchased one year after OSHA
publishes the final standard in the Federal Register. This would give
time for distributors to exhaust existing stocks and allow medical
providers to continue using the older spirometers until they buy new
ones in the normal course of business.
---------------------------------------------------------------------------
\9\ Appendix D provides minimal standards that must be employed
when making spirometry measurements. Users of Appendix D should also
consult generally accepted practices from ATS/ERS (Pellegrino et
al., 2005; Miller et al., 2005), NIOSH (CDC/NIOSH, 2003), and ACOEM
(Townsend, 2011) for a complete list of current spirometry
standards. OSHA's spirometry guidance also outlines those practices
(OSHA, 2013).
---------------------------------------------------------------------------
Current Appendix D(I)(b) specifies volume capacity for spirometers,
and the proposed revision would change it from seven to eight liters.
Current Appendix D(I)(e) specifies flow rates for flow-type
spirometers, and the proposed revision would change it from 12 to 14
liters per second. These proposed revisions to Appendix D(I)(b) and (e)
reflect current recommendations by ATS/ERS (Miller et al., 2005).
Current Appendix D(I)(g) requires either a tracing or display, and
OSHA is proposing to revise this language to "paper tracing or real-
time display." When OSHA published the current standard in 1978, a pen
linked to a physical strip chart generated tracings of expiration
curves on graph paper during pulmonary testing. In contrast, most
current flow-type and volume-type spirometers use computer-generated
displays of expiration curves projected on the spirometer or on an
attached computer screen.
OSHA is proposing to add size specifications for computer-generated
displays, the technology most often used today (Miller et al., 2005).
An issue that was critical for tracings in 1978, and remains critical
for both tracings and displays today, is that they be large enough to
allow a technician to easily evaluate the technical acceptability of
the expiration during testing. A large real-time display allows the
technician to easily view a technically unacceptable expiration and
coach the worker to achieve optimal expirations in subsequent attempts.
Current Appendix D(I)(g) also specifies requirements for paper tracings
of the expiration curve, and requires that the tracings be of
sufficient size for hand measurements to conform to Appendix D(I)(a).
OSHA is proposing to revise paragraph D(I)(g) to indicate "If hand
measurements will be made." OSHA is proposing these changes because
hand measurements are currently rarely used, and the values currently
shown in the expiration curve are usually computer generated today.
Appendix D(I)(g) also requires the spirometer to display flow
versus volume or volume versus time tracings. The proposed revision
would require the spirometer to display both flow-volume and volume-
time curves or tracings during testing. The flow-volume curve
emphasizes early expiration and allows the technician to detect
problems early in the maneuver (OSHA, 2013). The volume-time curve
emphasizes the end of the expiration and allows the technician to coach
the patient to achieve a complete expiration (OSHA, 2013). OSHA is also
proposing to update the paragraph to indicate that both types of curves
or tracings must be stored and available for recall. This requirement
to store curves will allow the assessment of results for acceptability
and repeatability, once testing is concluded, and it will also make it
possible to include the curves in reports to health care providers who
interpret the results (OSHA, 2013).
Current Appendix D(I)(h) requires that instruments be capable of
accumulating volume for a minimum of 10 seconds and not stop
accumulating volume before (1) the volume change for a 0.5-second
interval is less than 25 millimeters, or (2) the flow is less than 50
milliliters per second for a 0.5-second interval. As noted by ATS in
1987, these end-of-test criteria, which were first included in the 1979
ATS statement, caused premature termination of exhalation and FVCs that
were falsely reduced by as much as 9 percent (ATS, 1987). To avoid such
falsely reduced FVCs, ATS defined end-of-test criteria only according
to volume change from 1987 onward (ATS 1987, 1994, 2005). Therefore,
OSHA is proposing to update the first clause by specifying the
currently recommended volume change of less than 25 milliliters for a
1-second interval (Miller et al, 2005) and is also proposing to remove
the latter clause, i.e., that the instrument shall not stop
accumulating volume before the flow is less than 50 milliliters per
second for a 0.5-second interval. The proposed changes make Appendix D
consistent with current ATS/ERS recommendations for expiratory end-of-
test criteria using volume increment only, since flow rate criteria
were abandoned in 1987 (ATS, 1987; Miller et al., 2005). OSHA is also
proposing to update this provision by revising the time for which the
instrument must be capable of accumulating volume to 15 seconds, the
maximum time for which an exhalation should be done according to ATS/
ERS (Miller et al., 2005). In 1987, ATS stated that they encourage
spirometer designs that allowed patients to continue exhaling for as
long as possible (ATS, 1987).
Current Appendix D(I)(j), (II)(b), and (IV)(b) provide requirements
for the calibration of spirometers, and the proposal updates several of
these requirements. The proposed revisions to Appendix D(I)(j),
(II)(b), and (IV)(b) clarify that the technician must always check the
calibration of spirometers, and recalibrate them only if the spirometer
requires the technician to do so. That change is consistent with
recommendations by ATS/ERS (Miller et al., 2005). The reason for the
proposed change is that while technicians cannot recalibrate many
spirometer models in current use, they nevertheless must check all
spirometers regularly when in use to ensure that the spirometers are
operating within calibration limits, i.e., that the spirometers are
accurate (OSHA, 2013).
OSHA is proposing to delete the following text from Appendix
D(I)(j) because it is ambiguous and provides no useful information: ".
. . with respect to the FEV1 and FVC. This calibration of the FEV1 and
FVC may be either directly or indirectly through volume and time base
measurements." OSHA also is proposing to update paragraph D(I)(j) to
include the current ATS/ERS requirements for calibration-syringe
accuracy and volume displacement (Miller et al., 2005). As noted above,
OSHA is proposing to revise the term "calibration" to "calibration
check." Another proposed change to paragraph D(I)(j) is to revise the
term "calibration source" to "calibration syringe" because a
syringe is the only type of calibration source currently used, so
specifying a syringe instead of a source would clarify the requirement.
In addition, OSHA proposes to change the word "should" in D(I)(j)
to "shall," so the new D(I)(j)(2) would read, "the volume-
calibration syringe shall provide a volume displacement of at least 3
liters and shall be accurate to within 0.5 percent of 3
liters (15 milliliters)." The phrase "should" sounds advisory, and
the current practices that OSHA proposes to adopt are based on the 3
liter size of the syringe. OSHA seeks comment on this change to
"shall."
Current Appendix D(II)(b) provides that technicians should perform
calibrations using a syringe or other source of at least two liters.
The proposed change in the syringe volume to three liters is consistent
with current practices. OSHA also is proposing to change the term
"syringe or other volume source" to "syringe" for the reasons
described above in the discussion of paragraph D(I)(j). Another
proposed change to Appendix D(II)(b) would be to delete the phrase "or
method." The meaning of that phrase is unclear; the sentence is
addressing calibration checks of an instrument (i.e., spirometer), not
a method. OSHA also is proposing calibration check procedures for flow-
type and volume-type spirometers to determine whether a spirometer is
recording 3 liters of air 3.5 percent (Miller et al., 2005; OSHA, 2013).
The check of flow-type spirometers would involve the injection of air at three
different speeds, and the check of volume-type spirometers would involve a single
injection of air and a check for spirometer leakage. Users should refer
to generally accepted practices and other guidance for complete details
about calibration checks (see, e.g., Miller et al., 2005; Townsend,
2011; OSHA, 2013). OSHA also proposes to change the term
"recalibration" in this provision to "calibration checks" for the
reasons stated above in the discussion of paragraph D(I)(j). Finally,
OSHA proposes to change "should" to "shall" in the first sentence
of D(II)(B) for the same reasons as discussed above regarding paragraph
D(I)(j).
Appendix D(II)(a) currently contains requirements for measuring
forced expirations, including having the patient make at least three
forced expirations. OSHA is proposing to update this paragraph to have
the patient perform at least three, but no more than eight, forced
expirations during testing. This proposed change would clarify that up
to eight forced expirations can be attempted to obtain three acceptable
forced expirations (Miller et al., 2005). The same paragraph currently
states that "The subject may sit,..." OSHA proposes that
"subject" be changed to "patient" because "subject" implies
someone in an experimental trial, while patient is the more appropriate
term for someone undergoing screening at a medical facility, and
"patient" is the term used most often in the standard. OSHA also is
proposing to clarify the text in paragraph D(II)(a) to indicate that
the expiration must be repeatable. The term "repeatability," now used
by ATS/ERS, would be an update to the existing term
"reproducibility"; paragraph D(II)(a)(7) lists the criteria for
repeatable (formerly, reproducible) results. In addition, Appendix
D(II)(a) lists elements of "unacceptable" efforts in paragraphs
(a)(1)-(a)(7); OSHA proposes to revise this language to "technically
unacceptable" to make clear that the problem is not with the worker's
lungs but with the flaws in how the test is conducted.
Appendix D(II)(a)(3) currently specifies that a worker's efforts
during testing are unacceptable when the expiration does not continue
for at least five seconds or until an obvious plateau in the volume-
time curve occurs. The proposed revision to this paragraph clarifies
that results may be acceptable if the worker attempted to exhale
(versus actually exhaled) for at least six seconds and until an obvious
plateau in the volume-time curve occurs (Miller et al., 2005).
Therefore, the expiration must meet both of these criteria for a
spirometry result to be technically acceptable. Many workers who are
young or have small lung volumes can complete an expiration in less
than six seconds, and their results may be acceptable if the technician
observes an obvious plateau in the volume-time curve (OSHA, 2013).
Appendix D(II)(a)(4) provides that the results are unacceptable
when the worker coughs or closes the glottis during forced expiration.
This proposed change clarifies that the results are unacceptable if
coughing occurs in the first second of expiration, a condition that is
consistent with current ATS/ERS recommendations (Miller et al., 2005).
Coughing in the first second interferes with measurement of the FEV1
(Miller et al., 2005), but coughing toward the end of the expiration
does not affect test results (OSHA, 2013). Glottis closure at any time
may result in premature termination of the expiration (Miller et al.,
2005).
Appendix D(II)(a)(6) provides that the results are unacceptable
when there is an unsatisfactory start to expiration characterized by
excessive hesitation, i.e., one with an extrapolated volume greater
than 10 percent of the FVC on the volume-time curve. As noted in the
1987 ATS statement, a criterion of 10 percent could result in a falsely
elevated FEV1 from a suboptimal effort (ATS, 1987). The proposed change
would indicate that extrapolated volume must be less than 150
milliliters or 5 percent of the FVC, whichever is greater, to be
unacceptable. It would update the provision to be consistent with the
most recent ATS/ERS recommendation on criteria for start-of-test so
that an accurate time zero is set (Miller et al, 2005). All ATS or ATS/
ERS statements define acceptable start-of-test criteria according to
volume, as well as percent FVC, using whichever criterion is larger for
a given patient (ATS, 1979, 1987, 1994; Miller et al., 2005), and it is
not clear why the volume value was excluded from the current cotton
dust standard. OSHA is proposing to include the 2005 ATS/ERS
recommendations for volume, in addition to percentage of FVC, for
consistency with ATS/ERS. Expressing the values as both percentage of
FVC and as a volume, and using whichever approach gives the larger
allowed extrapolated volume, aids in the interpretation of results for
individuals with very small or very large lung volumes. For example,
since 5 percent of FVC will be less than 150 milliliters in individuals
with FVC < 3.00 L, the 150 milliliter criterion would be used for those
patients. But 5 percent of FVC would exceed 150 milliliters in
individuals with FVC > 3.00 L, so in that case the 5 percent of FVC
criterion would be used to evaluate the start-of-test for these
patients.
As stated above, Appendix D(II)(a)(7) contains criteria for
acceptable repeatability. Editorial changes proposed in Appendix
D(II)(a)(7) are for clarification. Notably, OSHA would remove the word
"three" because technicians can examine up to eight acceptable curves
to select the two highest FEV1 and FVC values (Miller et al., 2005).
OSHA is also proposing to change "variation" to "difference"
because "difference" is the more appropriate mathematical term to use
when comparing only two numbers.
In Appendix D(II)(a)(7), OSHA also is proposing to revise the
maximum difference between the two largest FVC values and the two
largest FEV1 values of a satisfactory test to 150 milliliters, a change
from the current maximum difference of 10 percent or 100
milliliters, whichever is greater. This proposed revision to the
criteria for acceptable repeatability reflects current ATS/ERS
recommendations (Miller et al., 2005). In 2005, ATS/ERS stated that
many patients are able to achieve repeatability of FEV1 and FVC to
within 150 milliliters (Miller et al., 2005). In 1994, the ATS changed
its repeatability criterion from a volume and a percentage difference
between values to a volume difference only, so that the criterion was
equally stringent for all lung sizes, and also so that it was easy to
compute during the test if hand-measurements were made (ATS, 1994).
OSHA is also proposing editorial changes to make it clear that the
difference between the two largest acceptable FVC values should not
exceed 150 milliliters and the two largest acceptable FEV1 values
should not exceed 150 milliliters.
The Agency discussed proposed changes to Appendix D(II)(b) above.
OSHA is proposing to remove Appendix D(III)(b). The paragraph
refers to a NIOSH guideline that specifies an outdated evaluation
criterion of FEV1/FVC ratio of 0.75 percent, and OSHA is unaware of an
updated NIOSH cotton dust guideline that more appropriately compares
the FEV1/FVC ratio to LLN. As noted above, generally accepted practices
use the LLN as the basis for classifying possibly abnormal lung
function because it accounts for age-related declines in lung function
(Townsend, 2011). Appendix D(III)(b) also refers to a table that OSHA
never included in the final Cotton Dust Standard. That table was most
likely Table XII-12 in the NIOSH criteria document for cotton dust
(CDC/NIOSH, 1974). The lack of the table does not appear to be a
pressing issue since no user complained about the missing table after
OSHA promulgated the standard. In addition, the information is
available to users in the NIOSH criteria document.
The proposed updates to paragraphs D(IV)(a) and (d) would change
"reproducibility" to "repeatability" to conform to the terminology
now used by ATS/ERS (Miller et al., 2005). "Repeatability" would have
the same meaning as "reproducibility." OSHA also is proposing to
change the term "calibration" in paragraph D(IV)(b) to "calibration
checks" for the reasons stated above in the discussion of paragraph
D(I)(j). OSHA also proposes to change "subject" to "patient" in
paragraph D(IV)(c) for the reason discussed above in the discussion of
paragraph D(II)(a).
References
ATS (American Thoracic Society). Medical Section of the American
Lung Association(1979). ATS Statement--Snowbird Workshop on
Standardization of Spirometry. American Review of Respiratory
Disease, 119, 831-838.
ATS (American Thoracic Society). Medical Section of the American
Lung Association(1987). Standardization of Spirometry--1987 Update.
Am Rev Respir Dis, 136, 1285-1298.
ATS (American Thoracic Society). Medical Section of the American
Lung Association(1994). Standardization of Spirometry--1994 Update.
Am Resp Crit Care Med, 152, 1107-1136.
CDC/NIOSH (Centers for Disease Control/National Institute for
Occupational Safety and Health)(1974). Criteria for a Recommended
Standard: Occupational Exposure to Cotton Dust. Chapter XII: Tables
and Figures. http://www.cdc.gov/niosh/pdfs/75-118f.pdf.
CDC/NIOSH (Centers for Disease Control/National Institute for
Occupational Safety and Health)(2003). Spirometry training guide.
December 1, 2003. http://www.cdc.gov/niosh/docs/2004-154c/pdfs/2004-154c.pdf.
CDC/NIOSH (Centers for Disease Control/National Institute for
Occupational Safety and Health)(2010). Spirometry reference value
calculator. http://www.cdc.gov/niosh/topics/spirometry/RefCalculator.html.
Hankinson, J. L., Odencrantz, J. R. and Fedan, K. B. (1999).
Spirometric reference values from a sample of the general US
population. Am J Respir Crit Care Med., 159, 179-87.
Hankinson, J. H., Kawut, S. M. and Shahar, E. (2010). Performance of
American Thoracic Society-recommended spirometry reference values in
a multiethnic sample of adults. Chest, 137, 138-145.
Knudson, R. J., Slatin, R. C., Lebowitz, M. D. and Burrows, B.
(1976). The maximal expiratory flow-volume curve. Normal standards,
variability, and effects of age. Am Rev Respir Dis, 113, 587-600.
Miller, M. R., Hankinson, J., Brusasco, V., Burgos, F., Casaburi,
R., Coates, A.... Wanger, J. (2005). American Thoracic Society/
European Respiratory Society (ATS/ERS) Task Force: Standardisation
of Spirometry. Eur Respir J, 26, 319-33, http://www.thoracic.org/statements/resources/pfet/PFT2.pdf.
OSHA (Occupational Safety and Health Administration) (2013).
Spirometry testing in occupational health programs. Best practices
for healthcare professionals. US Department of Labor. http://www.osha.gov/Publications/OSHA3637.pdf.
Pellegrino, R., Viegi, G., Brusasco, V., Crapo, R. O., Burgos, F.,
Casaburi, R.... Wanger, J. (2005). ATS/ERS standardisation of
lung function testing. Interpretative strategies for lung function
tests. Eur Respir J., 26, 948-968.
Redlich, C. A., Tarlo, S.M., Hankinson, J.L., Townsend, M. C.,
Eschenbacher, W. L., Von Essen, S. G., Sigsgaard, T. and Weissman,
D.N. (2014). American Thoracic Society Committee on Spirometry in
the Occupational Setting. Official American Thoracic Society
technical standards: Spirometry in the occupational setting. Am J
Respir Crit Care Med., 189(8), 983-93.
Sanders, C. L., Yesupriya, A. J., and Curtin, L. R. (undated).
Analysis of Population Structure and Stratification in NHANES III
Self-Reported Race/Ethnicities. http://www.cdc.gov/genomics/events/file/print/10year/08_pop_struct_ab.pdf.
Townsend, M. C. (2011). American College of Occupational and
Environmental Medicine (ACOEM) Occupational and Environmental Lung
Disorders Committee. Spirometry in the occupational health setting--
2011 update. J Occup Environ Med, 53, 569-584. http://www.acoem.org/uploadedFiles/Public_Affairs/Policies_And_Position_Statements/ACOEM%20Spirometry%20Statement.pdf.
4. Subpart F of 1915--General Working Conditions, Definitions in 29 CFR
1915.80
Existing requirements in the sanitation standard for Shipyard
Employment, Sec. 1915.88(j)(1) and (j)(2), specify that employers
must, to the extent reasonably practicable, clean and maintain
workplaces in a manner that prevents vermin infestation. When employers
detect vermin, they must implement and maintain an effective vermin-
control program.
Paragraph (b)(33) of Sec. 1915.80 defines the term "vermin" as
"insects, birds, and other animals, such as rodents and feral cats,
that may create safety and health hazards for employees." OSHA
included this definition in the proposal for 29 CFR part 1915, subpart
F, General Working Conditions in Shipyard Employment, on December 20,
2007 (72 FR 72452). In that NPRM, OSHA requested comment on the
proposed vermin-control provisions, as well as examples of vermin that
are present and the types of controls employers use to prevent the
harborage of vermin in shipyard worksites. Id. at 72484. The Agency
cited the hazards associated with exposure to insects, birds, and
rodents in the preamble discussion, but did not mention any hazards
associated with feral cats. Id. The Agency received two comments on
these provisions. One commenter stated that vermin did not pose a
serious hazard to workers and that OSHA should remove these provisions
from the rulemaking (Ex. 197.1, Docket No. OSHA-S049-2006-0675). The
other commenter explained that the number and types of vermin are
greater than OSHA indicated in the proposed discussion, and that "[t]o
`implement and maintain an effective control program' as required in
this section would probably be very expensive, near impossible or even
illegal" (Ex. 121.1, Docket No. OSHA-S049-2006-0675). Based on the
general industry sanitation standard that applied to shipyard
employment prior to the subpart F rulemaking, and these limited
comments, the final standard adopted the proposed definition 76 FR
24576 (May 2, 2011). The final rule preamble also did not identify any
hazards associated with feral cats. Id. at 24616.
Recently, stakeholders raised concerns about including feral cats
in the definition of vermin. These stakeholders argue that while the
possibility exists for feral cats to pose safety and health hazards for
employees (e.g., bites, scratches, fecal contamination), the threat is
minor as the cats tend to avoid human contact. Further, these
stakeholders expressed concern that including the term "feral cats"
in the definition of vermin encourages cruel and unnecessary
extermination. OSHA recognizes these concerns and, therefore, is
proposing to remove the term "feral cats" from the definition in
Sec. 1915.80(b)(33). The revised provision would define the term
"vermin" as "insects, birds, rodents and other animals that may
create safety and health hazards for employees." The Washington State
Plan also removed the term "feral cats" from its definition of
vermin, which is equivalent to OSHA's definition in Sec.
1915.80(b)(33) (WAC 296-304-01001). The proposed revision also is
consistent with the general industry sanitation standard provision on
vermin, which describes vermin as "rodents, insects, and other
vermin" (Sec. 1910.141(a)(5)). OSHA does not believe that removing
the term "feral cats" from the definition will reduce worker health and
safety, and notes that feral cats may help reduce the presence of other
vermin. To the extent feral cats pose a safety or health hazard at any
particular shipyard, OSHA would consider the cats to be "other animals"
under the standard.
5. Subpart D of 1926--Occupational Health and Environmental Controls,
Medical Services and First Aid in 29 CFR 1926.50
Under 29 CFR 1926.50, employers must provide specified medical
services and first aid to employees to address serious injuries that
may occur on the job. Existing Sec. 1926.50(f) requires the posting of
telephone numbers of physicians, hospitals, or ambulances for worksites
located in areas where 911 emergency service is not available. OSHA
adopted this requirement in 1979 when 911 emergency service was still a
relatively new concept, and was available only in certain parts of the
country.
Today, 911 emergency service is available almost everywhere in
North America. In nearly all locations in the United States and Canada,
a 911 call over a land-line telephone will link the caller to an
emergency-dispatch center. In the United States, most localities with
911 service also have so-called "Enhanced 911," which will not only
connect the land-line caller to a dispatcher, but also will
automatically provide the caller's location to the emergency
dispatcher. This automatic-location information is critical for
emergency responders in cases when the 911 caller does not know his/her
exact location, or does not have sufficient time to provide such
information.
Although the automatic transmission of location information to
emergency dispatchers is customary for land-line telephones, the task
of automatically transmitting location information is more complex when
the emergency call originates from a wireless telephone. Since 1996,
the Federal Communications Commission (FCC) has been phasing in the
requirement that wireless carriers adopt technologies that provide 911
caller-location information. However, carriers are not likely to
complete the phase-in until 2019; consequently, the FCC established a
procedure for exempting carriers from the location requirement. As a
result, in some remote areas of the country, wireless-telephone
carriers still are unable to provide accurate information about the
location of the 911 caller to 911 answering centers. The proposed
revision to Sec. 1926.50(f) updates the 911 service-posting
requirements consistent with the current status of land-line and
wireless-telephone technologies.
The proposed standard addresses the problem of locating callers,
usually cell-phone callers, in remote areas that do not have automatic-
location capability. In such areas, the proposed standard requires
employers to post in a conspicuous location either the latitude and
longitude of the worksite or other location-identification information
that effectively communicates the location of the worksite. OSHA notes
that when ACCSH discussed this proposal, one member stated that he had
seen a contractor provide latitude and longitude coordinates at a
remote site on stickers given to employees. (ACCSH Aug. 23, 2013
transcript, p. 85.) Employers can obtain information about which
counties, or portions of counties, are exempted from the 911 location
accuracy requirements from FCC PS Docket No. 07-114, which is publicly
available on the FCC's Electronic Comment Filing System (ECFS) Web
page: http://apps.fcc.gov/ecfs/proceeding/view?name=07-114.
The proposed revision also requires employers to ensure that the
communication system they use to contact ambulance service is
effective. Under existing Sec. 1926.50(e), employers are required to
provide a communication system for contacting ambulance service, or
proper equipment for transportation of an injured person. When using
wireless telephones as a communication system, however, that system's
availability varies based on the location of the caller. If an employer
is relying upon a communication system at a worksite, it must be
effective at the worksite. The Agency is retaining the requirement to
post telephone numbers of physicians, hospitals, or ambulances for
worksites located in areas where 911 emergency service is not
available.
6. Subpart D of 1926--Occupational Health and Environmental Controls,
Gases, Vapors, Fumes, Dusts, and Mists in 29 CFR 1926.55
The provisions of Sec. 1926.55 establish permissible exposure
limits for numerous toxic chemicals used during construction
activities. These provisions are the construction counterpart to the
general industry standard at Sec. 1910.1000. However, OSHA believes
that several of these provisions, notably paragraph (a), paragraph (c),
and Appendix A to Sec. 1926.55, need clarification. In this regard,
OSHA believes, first, that the use of the phrase "threshold limit
values" and the reference to the American Conference of Governmental
Industrial Hygienists (ACGIH), in both paragraph (a) and Appendix A,
are confusing. Since these are OSHA standards, the correct terminology
to express these limits is "permissible exposure limits," and the
proposed revision makes this revision. Moreover, while OSHA originally
adopted these limits from ACGIH recommendations, the limits are OSHA,
not ACGIH, requirements. Therefore, the proposed revision deletes the
references to ACGIH.
Second, the phrase "shall be avoided" in paragraph (a) has an
advisory, rather than a mandatory, connotation and, therefore, is not
appropriate in regulatory text. OSHA is proposing to revise this
language to read, "An employee's exposure... must at no time exceed
the exposure limit given for that substance."
Third, the words "inhalation, ingestion, skin absorption, or
contact" in paragraph (a) are redundant and confusing. In addition,
the concentrations listed are airborne values, and the standard
addresses exposure through any route. Therefore, the proposed language
deletes these words.
Fourth, Appendix A is not an appendix but an integral part of the
standard. The proposal, therefore, would acknowledge this relationship
by revising the heading to read, "Table A."
Fifth, Appendix A (proposed Table A) has a column labelled "Skin
Designation" under which an "X" demarcates certain substances,
although the appendix provides no definition of "X." The 1970 ACGIH
publication, however, notes that the "X" identifies substances that
present a dermal hazard. The proposed revision adds a footnote to the
proposed table that clarifies the meaning of this designation.
Sixth, Appendix A (proposed Table A) has two footnotes designated
by asterisks. However, there are no asterisks in the body of the
appendix referencing these footnotes. The first footnote, consisting of
a single asterisk, says, "The PELs are 8-hour TWAs unless otherwise
noted; a (C) designation denotes a ceiling limit." The second
footnote, consisting of two asterisks, states, "As determined from
breathing-zone air samples." The proposed revision deletes these two
footnotes, and moves the content of the footnotes to proposed
paragraphs (a)(1) and (a)(2) of Sec. 1926.55.
Finally, OSHA is proposing to correct the cross-references to
OSHA's construction asbestos standard in paragraph (c) and in Appendix
A (proposed Table A). The correct cross reference is: Sec. 1926.1101.
7. Subpart D of 1926--Occupational Health and Environmental Controls,
Process Safety Management of Highly Hazardous Chemicals in 29 CFR
1926.64
To avoid unnecessary duplication, OSHA is proposing to replace the
entire 31 pages of regulatory text for the Process Safety Management of
Highly Hazardous Chemicals (PSM) Standard for construction at Sec.
1926.64 with a cross reference to the identical general industry
standard at Sec. 1910.119. Other construction standards have similar
cross references to corresponding general industry standards; for
example, the Respiratory Protection Standard for construction at Sec.
1926.103 refers to the general industry Respiratory Protection Standard
at Sec. 1910.134.
OSHA believes that it is unnecessary to reproduce the entire PSM
Standard in 29 CFR part 1926 because construction employers rarely have
a PSM program at their worksites. The PSM standard affects construction
employers mainly through paragraph (h), Contractors, when they perform
construction work at refineries or chemical-manufacturing plants; in
these cases, the host employer generally will have a copy of the
standard available. Should construction employers require a copy of the
PSM Standard, they can obtain a copy readily at OSHA's Web page.
8. Subpart E of 1926--Personal Protective and Life Saving Equipment,
Criteria for Personal Protective Equipment in 29 CFR 1926.95
Current Sec. 1926.95(a) of the construction personal protective
equipment (PPE) standard states that PPE "shall be provided, used, and
maintained in a sanitary and reliable condition wherever it is
necessary." PPE must fit properly in order to provide adequate
protection to employees. This can be a particular issue for small-
stature construction workers, including some females, who may not be
able to use standard-size PPE. Section 1926.95(c)'s requirement that
PPE to be "of safe design" implicitly precludes the use of ill-
fitting equipment. However, OSHA's construction standard does not
contain an explicit requirement for PPE used in construction to fit
each affected employee, like the general industry PPE standard does
(see 29 CFR 1910.132(d)(1)(iii)).
Several commenters responding to the request for information for
this rulemaking, including the AFL-CIO and the International Safety
Equipment Association, recommended that the Agency revise its
construction PPE standards to ensure that PPE fits all construction
employees (Exs. OSHA-2012-0007-0012 and -0018).
Revising Sec. 1926.95(c) to require employers to select PPE that
properly fits each employee will clarify the construction PPE
requirements on this point and make them consistent with general
industry PPE requirements. The Agency believes that providing clear and
explicit language on this point will help ensure employers provide
employees with properly fitting PPE, thereby adequately protecting
employees exposed to hazards requiring PPE. The proposed language,
therefore, merely clarifies, and makes explicit, the requirement that
all PPE used in construction fit properly.
9. Subpart E of 1926--Personal Protective and Life Saving Equipment,
Safety Belts, Lifelines, and Lanyards in 29 CFR 1926.104
OSHA is proposing to revise the minimum breaking-strength
requirement for lifelines in the Safety belts, lifelines, and lanyards
standard, Sec. 1926.104(c), to 5,000 pounds. This proposed revision
will bring Sec. 1926.104(c) into conformity with the breaking-strength
requirements for lanyards and vertical lifelines in the Fall protection
systems criteria and practices ("Fall Protection") standard at Sec.
1926.502(d)(9). The Agency concludes that making identical
specifications for the same equipment will avoid confusion and,
thereby, improve compliance.
The breaking strength of a lifeline is the maximum load that it can
carry without failing or breaking. Under existing Sec. 1926.104(c),
the minimum breaking-strength requirement is 5,400 pounds. As noted by
OSHA in the proposed Fall Protection standard published on November 25,
1986 (51 FR 42718, 42726), the Agency based the 5,400-pound requirement
on the breaking strength of the then-available \3/4\-inch diameter
manila rope used for body-belt systems and not on the forces generated
in a fall. The basis for the revised requirement of 5,000 pounds
adopted in the final Fall Protection standard and proposed now for
Sec. 1926.104(c) is the force generated by a 250-pound employee
experiencing a force 10 times the force of gravity, plus a two-fold
margin of safety. Id. This proposed revision also is consistent with
the most recent ANSI/ASSE standards Z359.1 2007 and A10.32.
10. Subpart G of 1926--Signs, Signals, and Barricades
The provisions regarding accident prevention signs, signals, and
barricades in 29 CFR 1926.200(g), 201 and 202, subpart G (Signs,
Signals, and Barricades), contain requirements for employers' use of
accident prevention signs, tags, signaling and barricades. These
provisions require that traffic control signs and devices used for the
protection of workers, barricades used for the protection of workers,
and signaling by flaggers and the use of flaggers, including warning
garments worn by flaggers, comply with the mandatory provisions of
either of two versions of Part VI of the MUCTD. Employers may comply
with Part VI of the 1988 Edition, Revision 3, September 3, 1993, MUTCD
("1988 Edition") or the Millennium Edition, December 2000 MUTCD
("Millennium Edition").
Several commenters to the SIP-IV Request for Information (77 FR
72781), including the AFL-CIO (OSHA-2012-0007-0012), the Laborers'
Health and Safety Fund of North America (OSHA-2012-0007-0011), and the
American Road and Transportation Builders Association (OSHA-2012-0007-
0025), asked OSHA to update subpart G because the Department of
Transportation (DOT) updated the MUTCD in 2009. These revisions aimed
to expedite traffic, promote uniformity, improve safety, and
incorporate technology advances in traffic control device application
(74 FR 66730). In addition, DOT issued two revisions to the MUTCD in
2012 (77 FR 28455 and 77 FR 28460).
OSHA is proposing revisions to Subpart G, including an update to
the references to the MUTCD to the November 4, 2009 MUTCD ("2009
Edition"), including Revision 1 dated May 2012 and Revision 2 dated
May 2012. Updating the reference to the 2009 Edition MUTCD will
eliminate confusion as to which edition employers must comply with, and
will inform employers that compliance with DOT regulations will not
conflict with outdated OSHA regulations.
Statement of Reasonable Availability
OSHA believes that the Manual on Uniform Traffic Control Devices is
reasonably available to interested parties. It is available from the
Federal Highway Administration, United States Department of
Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590;
telephone: 202-366-4000; Web site: http://www.fhwa.dot.gov/. In
addition, it is available in the docket for this rulemaking and in
OSHA's docket office for review. If OSHA ultimately finalizes this
rule, the standards will be maintained in OSHA's national and regional
offices for review by the public.
DOT requires that traffic control signs or devices conform to the
2009 Edition (see 23 CFR 655.601 to .603). DOT regulations recognize that the MUTCD
is the national standard for all traffic control devices installed on
any street, highway, or bicycle trail open to public travel (Sec.
655.603(a)). DOT requires compliance with the 2009 Edition for all
federal-aid construction areas (Sec. 655.603(d)(3)). In addition, each
State must have a highway safety program that complies with DOT's
designated national standard, and where State or other federal agency
MUTCDs or supplements are required, they shall be in substantial
conformance with the 2009 Edition(23 U.S.C. 402(a); 23 CFR
655.603(b)(1)). Substantial conformance means that the State MUTCD or
supplement shall conform as a minimum to the standard statements
included in the 2009 Edition (Sec. 655.603(b)).
The differences between OSHA's standards that reference the 1988
Edition and the Millennium Edition MUTCDs and DOT's regulations cause
potential industry confusion and inefficiency, without advancing worker
safety. Accordingly, in Directive CPL 02-01-054, dated October 16,
2012, OSHA stated that it would accept compliance with the 2009 Edition
in lieu of compliance with the 1988 Edition or Millennium Edition
MUTCDs referenced in Sec. 1926.200(g) through its de minimis policy.
OSHA reviewed the differences between the 1988 Edition, the
Millennium Edition, and the 2009 Edition, and concluded that the more
recently published manual will provide greater employee safety benefits
than the older versions. The 2009 revisions to the MUTCD largely make
the document more accessible and account for advances in technology. A
comparison of the 1988 and 2009 Editions shows few new requirements;
rather, the document is easier to use, with more guidance and
supporting material available. The MUTCD is a complex document
comprised of standards, guidance, and supporting material. Under Sec.
1926.6(a), OSHA's Subpart G provisions incorporate by reference only
the mandatory provisions of the MUTCD, i.e., those provisions
containing the word "shall" or other mandatory language, and only
those provisions that affect worker safety with regard to the use of
signs, devices, barricades, flaggers and points of hazard. Often, it
was difficult to locate these provisions, but the 2009 Edition clearly
labels them "standards."
The revisions to the 1988 and Millennium Editions that affect
worker safety are minimal. DOT identified the following areas as
significant revisions that relate to work safety in the final rule (74
FR 66730):
The needs and control of all road users through a
temporary traffic-control (TTC) zone apply to all public facilities and
private property open to public travel, in addition to highways.
Federal Highway Administration (FHWA) allows non-compliant
devices on existing highways and bikeways to be brought into compliance
with the current edition of the MUTCD as part of the systematic
upgrading of substandard traffic control devices (and installation of
new required traffic control devices) required pursuant to the Highway
Safety Program, 23 U.S.C. 402(a). If the FHWA establishes a target
compliance date for upgrading such devices, traffic control devices
shall be in compliance by that date. (These target compliance dates
established by the FHWA are shown in Table I-2 of the 2009 Edition.)
Workers within the public right-of-way must use high-
visibility safety apparel.
There is a new section titled "Automated Flagger
Assistance Devices" (AFAD). These optional devices enable a flagger to
assume a position out of the lane of traffic when controlling road
users through TTC zones.
New requirements that flaggers shall use a "STOP/SLOW"
paddle, flag, or AFAD to control road users; the 2009 Edition prohibits
the use of hand movements alone. In the previous editions, it was not
clear that hand signals alone were insufficient.
All devices used for lane channelization (i.e., directing
vehicles in a particular direction) must be crashworthy.
Temporary traffic barriers, including their end treatments
(such as an impact attenuator), must be crashworthy.
There was one major revision to the MUTCD, the 2003 Edition,
between the Millennium Edition and the 2009 Edition. OSHA is providing
a list of the changes between the 2003 Edition and the 2009 Edition in
the record (find 2009 Edition figure changes at regulations.gov in
Docket No. OSHA-2012-0007).
Section 1926.200(g)--Traffic signs. Current paragraph (g)(1) of
Sec. 1926.200 states, "[c]onstruction areas shall be posted with
legible traffic control signs at points of hazard." Accordingly,
current paragraph (g)(1) does not explicitly require protection by
traffic control devices. However, existing paragraph (g)(1) requires
legible signs at points of hazard and paragraph (g)(2) prohibits misuse
of both signs and devices, by requiring their use to conform to the
MUTCD. Not requiring employers to use, but prohibiting the misuse of,
protective devices at points of hazard is an anomaly that causes
unnecessary confusion. Additionally, current enforcement procedures
allow OSHA to cite an employer for a violation under paragraph (g)(1)
when the employer exposes an employee to a hazard resulting from the
lack of protective devices at points of hazard when the devices (i.e.,
channelization devices and warning devices) would essentially serve as
signs. (CPL 02-01-054, Paragraph XIII.F.2).
The proposed revision explicitly requires that employers use
traffic control devices at points of hazard. Accordingly, OSHA is
proposing to revise paragraph (g)(1) to require employers to use both
signs and devices at points of hazard. While paragraph (g)(2) would
still cover the misuse of signs and devices, the proposal would revise
this paragraph too. Proposed paragraph 200(g)(2) would clarify that it
covers the design and use of traffic-control devices, and would add a
list of those devices: Signs, signals, markings, barricades, and other
devices. Consistent with these revisions, OSHA would also revise the
headings of Sec. 1926.200 and paragraph (g) by adding the term
"devices" to these headings. The Agency would retain the requirement
that signs be legible. These changes would clarify the requirements for
signs and devices.
Section 1926.201--Signaling. The Agency is limiting proposed
revisions to Sec. 1926.201 to the 2009 Edition update discussed above.
Section 1926.202--Barricades. OSHA is proposing to delete this
section because it would duplicate the requirements in the proposed
revisions to paragraph (g)(1), which also would require the use of
barricades as traffic control devices at points of hazard, and
paragraph (g)(2), which would require that the design and use of
barricades conform to the updated MUTCD.
Section 1926.203--Definitions applicable to this subpart. OSHA is
proposing to delete this section because the MUTCD defines or describes
most of the words defined in this section (e.g., barricade, signs,
signals). If OSHA retained this section, it would need to update these
definitions to conform to the MUTCD. To the extent that other
provisions of subpart G use the defined words but do not reference the
MUTCD, OSHA believes that providing definitions for these words is
unnecessary because the meanings of the words are either obvious or
defined clearly in applicable consensus standards or in other OSHA
standards; for example, an adequate description of a "tag" is in Sec.
1926.200(h).
In summary, OSHA is proposing to amend the safety and health
regulations for construction to adopt and incorporate the 2009 Edition
of the MUTCD and clarify the regulatory text. The revisions would
delete the references in Sec. Sec. 1926.200(g)(2) and 1926.201(a) to
the 1988 Edition and Millennium Edition of the MUTCD and insert
references to the 2009 Edition. The revisions also would amend the
regulatory text of paragraphs (g)(1) and (g)(2) of Sec. 1926.200 to
eliminate confusion regarding OSHA's interpretation of the current
text. The proposal deletes Sec. 1926.202 because it duplicates the
requirements in the proposed revisions to Sec. 1926.200(g) and Sec.
1926.203 because the proposed revisions make this section unnecessary.
11. Subpart H of Part 1926--Materials Handling, Storage, Use, and
Disposal, General Requirements for Storage in 29 CFR 1926.250
Subpart H of OSHA's construction standards governs the handling,
storage, use, and disposal of construction materials on a work site.
Section 1926.250 addresses safe storage of building materials inside
buildings under construction, and Sec. 1926.250(a)(2) requires
employers to post maximum safe load limits of floors in storage areas.
This requirement is important in large buildings under construction
because employers store large, heavy quantities of building materials
in these structures to accommodate construction staging and schedules.
However, requiring employers to post safe load limits is unnecessary in
single-family home construction because employers do not use these
structures for storing heavy materials that could endanger employees
working at lower levels should the floor collapse. Therefore, OSHA is
proposing to exclude detached, single-family residences and townhouses
from the posting requirement.
OSHA finds that the proposed revision will lessen the compliance
burden of employers without jeopardizing the safety of employees. While
OSHA believes that employers involved in residential-building
construction do not place heavy loads on the floors of these
structures, the proposed revision does not relieve these employers of
the duty to ensure that any loads placed on these floors do not exceed
the maximum safe loads of the floors.
12. Subpart P of 1926--Excavations, Specific Excavation Requirements in
29 CFR 1926.651
Paragraphs (j)(1) and (j)(2) of Sec. 1926.651 specify requirements
for employers to protect employees from (1) loose rock or soil in
excavations, and (2) excavated or other materials or equipment that
could fall or roll into an excavation. Similar provisions were part of
OSHA's subpart P Excavation standard originally issued under the
Construction Safety Act in 1971 as 29 CFR 1518.651(h) and (i) (36 FR
7340, 7389, April 17, 1971), and OSHA retained them when it revised the
standard in 1989 (54 FR 45894, Oct. 31, 1989). The original 1971
standard placed the burden on employers to ensure employees' safety
from loose rock and soil, and excavated or other materials, in or
around excavations (36 FR 7340, 7389). The 1989 revision added to the
paragraphs (j)(1) and (j)(2) the phrase "that could pose a hazard"
when referring to loose rock or soil and excavated or other materials
or equipment (54 FR 45894, 45924-45925).
A number of decisions by administrative law judges of the
Occupational Safety and Health Review Commission (OSHRC) have
interpreted the added phrase in the standard as placing the burden on
OSHA to establish that loose rock or soil or excavated or other
material or equipment poses a hazard to employees before it can
establish a violation of Sec. Sec. 1926.651(j)(1) and (j)(2). (See,
e.g., Black Construction Corp., 19 BNA OSHC 1043 (2000) (ALJ) ((j)(1));
Schaer Development of Central Florida, Inc., No. 11-0371, 2011 WL
3394942 (OSHRC ALJ June 2, 2011) ((j)(2))). These decisions are
contrary to most of OSHA's standards, which presume that a hazard
exists unless the employer can demonstrate otherwise (see, e.g., Austin
Bridge Co., 7 BNA OSHC 1761 (1979)). Moreover, the preamble to the 1989
revision does not indicate that OSHA intended to shift the burden when
it revised the 1971 provisions, but only to clarify the language of the
provisions (54 FR 45894, 45924). Thus, OSHA is proposing to remove the
phrase "that could pose a hazard" from Sec. 1926.651(j)(1) and
(j)(2). This revision would clarify, as originally intended, employers
must protect their employees from loose rock or soil and excavated or
other materials or equipment, and that OSHA does not have the burden of
demonstrating the existence of a hazard. Therefore, the standards
presume a hazard unless an employer complied with the protections
required by Sec. Sec. 1926.651(j)(1) and (j)(2).
Section 1926.651(j)(1) applies to loose rock or soil that can fall
from the face of the excavation. The preamble to the 1989 revision
states that this provision does not apply to all excavations, only
those excavations with loose rock or soil of "sufficient volume [to]
endanger an employee" (54 FR 45894, 45924). It is the employer's duty
to assess whether (1) the rock or soil is loose and (2) of sufficient
volume to potentially endanger or injure employees in the excavation.
The proposed revision would remove the phrase "that could pose a
hazard," but would keep the language limiting this provision to loose
rock or soil. As noted in the previous paragraph, removing the language
"that could pose a hazard" from the provision would preserve the duty
of employers to protect workers from the hazard, while relieving OSHA
of the initial burden of demonstrating that a hazard exists. OSHA also
is proposing to remove the language "by falling or rolling from an"
from the provision as that language is unnecessary to describe the
hazard; however, OSHA is proposing to retain the term "excavation
face" in the provision to clarify the location of the hazard.
Section 1926.651(j)(2) applies to excavated materials ("spoil
piles") or other materials or equipment that are on the surface near
the excavation. Employers must keep these piles, and other materials or
equipment, at least two feet from the edge of the excavation, or
prevent them from moving by using retaining devices. Excavated soil is
loose and may present a hazard to workers in an excavation. As
explained in the preamble to the 1989 revision:
The intent of this requirement is to protect employees from
materials, equipment, and spoil piles which might fall into
excavations. Obviously, materials such as excavated soil and stored
construction supplies can superimpose loads on the walls of an
excavation. Such loads can be the cause of cave-ins and must be
considered when determining what protection is necessary to
safeguard employees.
(54 FR 45894, 45925).
The proposed revision would remove the phrase "that could pose a
hazard by falling or rolling into excavations," but would retain the
language "excavated or other materials or equipment," from the first
sentence in paragraph (j)(2). The proposed language would keep the
remaining language in the paragraph, including the two-foot rule, and
would remove from OSHA the burden of demonstrating that a hazard
exists, while retaining the employers' duty to protect employees from
the hazards of excavated or other materials or equipment placed less
than 2 feet from the edge of the excavation. 13. Subpart S of
1926--Underground Construction, Caissons, Cofferdams and Compressed Air,
Underground Construction in 29 CFR 1926.800
Existing regulatory language in Sec. 1926.800(k)(10)(ii) requires
that mobile diesel-powered equipment used in "other than gassy
operations" underground be approved by the Mine Safety and Health
Administration (MSHA) in accordance with the provisions of 30 CFR part
32, or that the employer that demonstrate the equipment is "fully
equivalent" to MSHA-approved equipment. In 1996, MSHA revoked part 32
and replaced it with updated provisions in 30 CFR part 7, subpart E and
30 CFR 75.1909 Non-permissible diesel-powered equipment; \10\ design
and performance requirements, 75.1910 Non-permissible diesel-powered
equipment; electrical system design and performance requirements, and
75.1911 Fire suppression systems for diesel-powered equipment and fuel
transportation units (61 FR 55411). In 2001, MSHA issued 30 CFR
57.5067, which permits operators to use engines that meet Environmental
Protection Administration (EPA) requirements for engines as an
alternative to seeking MSHA approval under part 7, subpart E (66 FR
5706). The Agency proposes to update the regulatory language in Sec.
1926.800(k)(10)(ii) to cross-reference these updated provisions.
---------------------------------------------------------------------------
\10\ Non-permissible equipment may not be used in gassy
operations.
---------------------------------------------------------------------------
OSHA's existing regulatory language in Sec. 1926.800(i)(2)
requires that mobile diesel powered equipment used in "gassy
operations" underground be approved by MSHA in accordance with the
provisions of 30 CFR part 36, or that the employer demonstrate that the
equipment is "fully equivalent" to MSHA-approved equipment. MSHA has
also updated part 36. However, the reference in Sec. 1926.800(i)(2)
remains correct, and OSHA does not need to change the language to
ensure employers are following MSHA's updated requirements.
Under 30 CFR 57.5067, all engines used in underground mines must
have an affixed plate evidencing approval of the engine pursuant to 30
CFR part 7, subpart E or meet or exceed the applicable requirements of
the EPA listed in MSHA Table 57.5067-1. To use equipment with non-
permissible engines in non-gassy operations, the employer must ensure
it meets the requirements listed in 30 CFR 75.1909, 75.1910, and
75.1911 for other machine features. If the employer wishes to use
equipment with permissible engines, in gassy operations, it must ensure
the equipment meets the requirements listed in 30 CFR part 36 for other
machine features.
When MSHA revoked 30 CFR part 32 in 1996, it directed state and
federal agencies that reference 30 CFR part 32 to 30 CFR part 7,
subpart E and 30 CFR 75.1909 and 75.1910 (61 FR 55416). Accordingly,
the proposal substitutes references to those sections for the reference
to part 32. OSHA has also proposed including 30 CFR 75.1911(a)-(i) in
the cross-reference because Sec. 75.1909 requires certain equipment to
have fire suppression systems in accordance with Sec. 75.1911. To
maintain the scope of 29 CFR 800(k)(10)(ii), OSHA is not proposing to
incorporate Sec. 75.1911 paragraphs (j) and (k) (regarding fire
suppression systems on diesel-powered equipment), which are training
and recordkeeping requirements that were not contained in the original
30 CFR part 32. In addition, OSHA is not proposing to incorporate Sec.
75.1911(l), which addresses the interaction of that section with other
MSHA requirements not relevant here. Thus, OSHA has not included
paragraphs (j)-(l) in the cross reference.
If adopted, these changes will allow employers to use diesel-
powered engines on mobile equipment in underground construction that
meets current MSHA requirements.
The existing OSHA standard allows employers to use non-MSHA
approved engines if they can demonstrate that they are fully
equivalent. The existing standard and OSHA give no guidance how
employers can make such a demonstration. OSHA believes that the
allowance for engines that meet or exceed EPA requirements in MSHA
Table 57.067-1 is a much more effective and simple way to allow the use
of non-MSHA approved engines. OSHA solicits comments on whether
employers do make such demonstrations and whether the use of EPA
requirements will better effectuate a safe and healthful workplace.
For other machine features, the proposal requires that equipment
with non-approved engines meeting the applicable EPA requirements must
also meet the requirements of 30 CFR 75.1909, 75.1910, and 75.1911(a)-
(i) for non-permissible engines used in "other than gassy"
operations. Because these requirements list features, the only way for
an employer to demonstrate equivalency is to show that the equipment
has the required features, rendering the "fully equivalent" clause
unnecessary as to "other machine features." Therefore, because OSHA
believes that the function of the current "fully equivalent" clause
is captured by the updates to the referenced MSHA regulations, the
Agency has not retained the language in the proposal.
Based on available information, OSHA has determined that currently
manufactured equipment meets the proposed requirements and is generally
compliant with the more stringent EPA Tier 3 and Tier 4 emission
requirements (ERG, 2015). The Agency has therefore preliminarily
concluded that all applicable new equipment currently available for in
the market meets the proposed requirements. OSHA recognizes that there
may be some employers using equipment that predates the newer MSHA
standards, and the EPA requirements referenced in them. To avoid the
costs of replacing existing equipment in use and are complaint with the
current Standard, the Agency proposes to allow equipment purchased
before the effective date of the final rule to continue to comply with
the terms of existing Sec. 1926.800(k)(10)(ii) (including having been
approved by MSHA under 30 CFR part 32 (1995) or be determined to be
equivalent to such MSHA-approved equipment). OSHA solicits comment on
whether there are engines in use that meet the existing standard but
will not meet the requirements of current MSHA standard and, if so,
whether continued use of such equipment presents a serious safety or
health hazard. OSHA also seeks comment on whether this proposed
grandfathering is workable.
14. Subpart S in 1926--Underground Construction, Caissons, Cofferdams
and Compressed Air, Compressed Air in 29 CFR 1926.803
OSHA is proposing to revise subpart S--Underground Construction,
Caissons, Cofferdams, and Compressed Air by replacing the decompression
tables currently found in Appendix A to subpart S with the 1992 French
Air and Oxygen decompression tables. OSHA is also requesting comment on
whether the following decompression tables should also be permitted as
substitutes for the existing tables in Appendix A: The Edel-Kindwall
(NIOSH) tables, the Blackpool (British) tables, and the German Standard
Decompression tables. OSHA has preliminarily concluded that the French
tables provide safer decompression practices than the OSHA
decompression tables currently found in Appendix A to subpart S. OSHA
proposes to revise Sec. 1926.803(f)(1) to require employers to follow
the 1992 French Air and Oxygen decompression tables to decompress
employees exposed to compressed air environments. OSHA proposes to adopt
the French tables with an incorporation by reference, while deleting
Appendix A.
The current decompression tables in OSHA's subpart S standard were
developed by Washington state. According to a NIOSH Request for
Information (77 FR 74193), the Washington state Decompression Tables
were used by several states prior to 1971, when OSHA adopted them as
the federal requirement in Appendix A to subpart S. These tables were
adopted under section 6(a) of the OSH Act, which permitted the Agency,
for a two-year period, to adopt then-current consensus standards as its
own without notice and comment rulemaking. The tables in Appendix A
prescribe decompression by reducing the pressure that workers are
exposed to at intervals in accordance with the schedule in the tables.
The current tables address exposures ranging from half an hour to over
eight hours, with only one decompression schedule for exposures of
greater than eight hours. Subpart S prohibits employee exposures to
compressed air environments of greater than 50 pounds per square inch
(p.s.i) (Sec. 1926.803(e)(5)).
Employers in the tunneling construction industry have requested
variances from the underground construction standards in subpart S from
federal OSHA as well as states with State Plans. The requests seek a
variance to use decompression tables other than those found in Appendix
A to subpart S as well as other provisions in the underground
standards. In their requests, employers in the industry assert that
using other decompression tables is safer than using OSHA's current
decompression tables. Also of note, many of the tunneling projects have
working pressures ahead of the drill head higher than 50 p.s.i.--so
none of the tables in Appendix A would be appropriate or safe. The
variance requests suggest that using tables that provide for
decompression from environments under pressure greater than 50 p.s.i.
and provide staged decompression (stopping workers at set depths and
pressures to prevent decompression illness (DCI)), with an enriched
oxygen atmosphere, provide greater protection to employees from DCI.
The decompression tables that were developed after the 1970s use
elevated levels of oxygen to aid in the decompression process.
The ineffectiveness of the current OSHA tables for preventing DCI
is discussed in a 1986 study by Gregory J. Downs and Edel P. Kindwall.
During a tunneling project in Milwaukee where pressures ranged from 28
psig to 43 psig and the current OSHA tables were used for
decompression, 33 percent of tunneling workers examined experienced
aseptic necrosis, a form of DCI also known as dysbaric osteonecrosis
that causes portions of the bone tissue to die.\11\ The study explains
that parts of the current OSHA tables "poorly facilitates total
nitrogen elimination," resulting in instances of aseptic necrosis for
a substantial number of workers decompressed in accordance with the
tables at the Milwaukee tunneling project.\12\ Downs and Kindwall
concluded that the OSHA tables are "considered inadequate in
efficiently eliminating nitrogen from the body, and allow bone disease
at pressures in excess of 36.5 psig." \13\ Kindwall mentioned in a
subsequent study that there were inconsistencies in the OSHA tables.
For example, the decompression times at 26 and 44 psig are the same for
six and eight hour exposures. He believes that this is the result of a
mistake made during the transcription of the tables.\14\
---------------------------------------------------------------------------
\11\ Downs GJ, Kindwall EP (1986) "Aseptic necrosis in caisson
workers: A new set of decompression tables," p. 570.
\12\ Id.
\13\ Id.
\14\ Kindwall, EP (1997). Compressed air tunneling and caisson
work decompression procedures: Development, problems, and solutions.
Undersea and Hyperbaric Medicine, 24(4), p. 342.
---------------------------------------------------------------------------
On May 23, 2014 OSHA granted a permanent variance to an underground
construction contractor allowing, among other things, the employer to
use the 1992 French decompression tables (79 FR 29809). In granting
this variance, OSHA found that if the employer followed the
requirements of the variance, including the French decompression
tables, the working conditions for employees would be at least as safe
as following OSHA's standard (79 FR 29816). OSHA granted similar
variances for other projects on March 27, 2015 (80 FR 16440), and
August 20, 2015 (80 FR 50652). On July 27, 2015, OSHA published a
Federal Register notice seeking comment on an employer's variance
request to use the 1992 French decompression tables for all future
tunneling projects it performs, subject to certain conditions (80 FR
44386). (Note that "at least as safe" is the main criterion OSHA
follows to evaluate variance requests.)
On December 15, 2011, the Seattle Tunnel and Tail Team gave a
presentation to the Advisory Committee on Construction Safety and
Health (ACCSH), titled Tunnel Advances (OSHA-2011-0124-0066). The
presentation discussed how technology and work practices have changed
in the underground construction industry, particularly since the
promulgation of subpart S. They illustrated this point by showing the
number of variances that were needed to complete underground
construction projects safely, as many of the requirements of subpart S
have become outdated. One of the common variance requests asks to use
decompression tables other than the current OSHA decompression tables.
1992 French Air and Oxygen Decompression Tables
The 1992 French decompression tables replaced an older series of
tables from 1974. The French Ministry of Labor revised the earlier
tables when a number of cases of DCI occurred during an underground
construction project.\15\ OSHA conducted a review of the scientific
literature on DCI during work under higher air pressure to determine
whether use of the decompression methods in the 1992 French
Decompression Tables was more effective or safer than following the
tables currently in the standard. Based on this review, OSHA has
preliminarily concluded that decompression recoveries performed with
these tables will result in a fewer cases of DCI than the decompression
tables specified by the current standard.
---------------------------------------------------------------------------
\15\ Le Pechon, JC, Barre, P, Baudi, JP, Ollivier, F (1992).
Compressed Air Work--French Tables 1992 Operational Results. p. 285.
---------------------------------------------------------------------------
The review conducted by OSHA found several studies supporting the
determination that the 1992 French Decompression Tables result in a
lower rate of DCI than the decompression tables specified by the
standard. For example, H. L. Andersen studied the occurrence of DCI at
maximum hyperbaric pressures ranging from 4 p.s.i.g. to 43 p.s.i.g.
during construction of the Great Belt Tunnel in Denmark in 1992-
1996.\16\ This project used the 1992 French Decompression Tables to
decompress the workers during part of the construction. Anderson
observed 6 DCI cases out of 7,220 decompression events, or a frequency
of 0.0008 (0.08 percent). The DCI incidence in the study by Andersen is
substantially less than the DCI incidence reported by Eric Kindwall for
the decompression tables specified in Appendix A of the current
standard. In his study, Kindwall reported 60 treated cases of DCI among
4,168 exposures between 19 and 31 p.s.i.g., resulting in a DCI
incidence of 1.44 percent using the current OSHA tables.\17\ OSHA found
no studies in which the DCI incidence reported for the 1992 French
Decompression Tables were higher than the DCI incidence reported for
the OSHA decompression tables. The results of these studies show that
the French tables do a better job of minimizing the significant risks
of decompression illness than the current OSHA tables.
---------------------------------------------------------------------------
\16\ Anderson HL (2002). Decompression sickness during
construction of the Great Belt tunnel, Denmark. Undersea and
Hyperbaric Medicine, 29(3), pp. 172-188.
\17\ Kindwall, EP (1997). Compressed air tunneling and caisson
work decompression procedures: Development, problems, and solutions.
Undersea and Hyperbaric Medicine, 24(4), pp. 337-345.
---------------------------------------------------------------------------
During decompressions under the May 23, 2014 variance to Tully/OHL
USA Joint Venture, which allowed use of the French decompression tables
during hyperbaric operations, the Tully/OHL reported no instances of
DCI using the French tables.\18\ Likewise, during decompressions under
the variance to Traylor/Skanska/Jay Dee Joint Venture, which also
allowed use of the French decompression tables, Traylor/Skanska/Jay Dee
reported no instances of DCI. (Traylor 2015). The French tables also
address decompression at greater pressures than 50 p.s.i and for
durations longer than eight hours.
---------------------------------------------------------------------------
\18\ Email from Luis Alonso to Stefan Weisz, RE: Tully Variance
End of Project Effectiveness Evaulation Report--Reminder, January
21, 2015.
---------------------------------------------------------------------------
State-Plan states have also granted variances to entities asking to
use the 1992 French Air and Oxygen Decompression tables. On June 25,
2007, Washington state granted a permanent variance to VCGP/Parsons
RCI/Frontier-Kemper, JV that allowed, among other things, the use of
the 1992 French Air and Oxygen decompression tables. Based on its
research, the state of Washington determined that "decompression using
oxygen is much more effective in purging the body of residual
nitrogen," concluding that the French tables were at least as
effective as the decompression tables in their standard (OSHA-2012-
0036-0009). Similarly, Nevada (OSHA-2012-0036-0006) and Oregon (OSHA-
2012-0036-0007) approved variance requests to use the French tables.
Based on a review of available evidence, the experience of State-
Plan states (discussed above) that granted variances (Nevada, Oregon,
and Washington) for hyperbaric exposures occurring during similar
subaqueous tunnel-construction work, and OSHA's previously issued
variance allowing use the French Decompression Tables, OSHA is
proposing to replace the tables in Appendix A with the 1992 French
Decompression Tables, which will be incorporated by reference into
Sec. 1926.803(f)(1).
Other Tables
In 2003, Valerie Flook published "A comparison of oxygen
decompression tables for use in compressed air work," a Health and
Safety Executive study comparing several oxygen decompression tables,
including the British, French, German, and Edel-Kindwall tables. The
study "was commissioned to compare a number of tables used for oxygen
decompression from compressed air work in order to identify the safest
set of tables...." The study used a mathematical model to predict
the maximum gas volume in bubbles in the central venous blood at the
end of decompression using each set of tables. The report noted that
the model used had been verified by comparison to actual nitrogen gas
bubble counts (measured using Doppler technology) after various
compression decompression trials in both animal and human subjects. As
explained by NIOSH, nitrogen gas bubbles in the body are a precursor to
DCI.\19\
---------------------------------------------------------------------------
\19\ CDC--Decompression Sickness and Tunnel Workers, http://www.cdc.gov/niosh/topics/decompression/default.html.
---------------------------------------------------------------------------
The Flook study concluded that "[t]he range of gas volumes
predicted for most exposures is small and it is unlikely that the
different [decompression] profiles could be distinguished...."
(Flook, 2003, 34). The British, French, Edel-Kindwall, and German
tables, among others, all achieved a quantity of nitrogen gas bubbles
that was within the same range. Similar to the French tables, the
British and German tables also address decompression at greater
pressures than 50 p.s.i. and for durations longer than eight hours,
while the Edel-Kindwall tables do not. OSHA is seeking comment on
whether the Edel-Kindwall, British, and/or German tables should be
included as options in the OSHA standard. OSHA also seeks any
scientific information beyond the Flook study demonstrating the
effectiveness of these tables in preventing DCI. If OSHA were to add
any of these tables (British, Edel-Kindwall, and/or German) to Sec.
1926.803 in addition to the French tables, then employers would be able
choose any of the added tables to decompress employees. OSHA provides
more information about each below.
Edel-Kindwall Tables
OSHA asks for comment on whether the Edel-Kindwall decompression
tables should (also) be included as a replacement for the tables in
Appendix A of subpart S. The Edel-Kindwall tables were developed in
response to several tunneling workers experiencing DCI using the
current OSHA decompression tables. Between 1971 and 1973 during a
tunneling project in Milwaukee, Wisconsin, workers experienced aseptic
necrosis, when using the current OSHA decompression tables. This
incident prompted NIOSH to determine if alternate decompression tables
could be developed.\20\
---------------------------------------------------------------------------
\20\ CDC--Decompression Sickness and Tunnel Workers, http://www.cdc.gov/niosh/topics/decompression/history.html.
---------------------------------------------------------------------------
NIOSH awarded a contract to Eric Kindwall to develop staged
decompression tables. The tables, later known as the Edel-Kindwall
decompression tables, included the use of oxygen because it shortened
decompression time considerably, from over 10 hours to less than four
hours. A 1986 study by Kindwall and Gregory J. Downs tested the
effectiveness of the Edel-Kindwall tables to eliminate nitrogen from
the body and reduce instances of DCI. Six human subjects were
compressed for this experiment. While compressed, each subject
simulated work conditions for four hours. After performing many
activities to establish baseline information for each subject, they
were decompressed in accordance with the OSHA or Edel-Kindwall air and
oxygen tables. The comparison of the OSHA tables and the Edel-Kindwall
air table ability to eliminate nitrogen from the body resulted in "no
statistical difference" between the two tables. The comparison of the
OSHA tables and the Edel-Kindwall oxygen table showed that the Edel-
Kindwall oxygen table was "more efficient in eliminating nitrogen"
than the OSHA tables. Kindwall and Downs concluded that their "data is
definitive enough to for immediate acceptance of this table for use by
the construction industry." Although Kindwall and Downs expressed some
concerns regarding the cost of equipment, oxygen toxicity and
flammability, they did not believe these potential concerns outweighed
the "shorter decompression times and reduced morbidity" offered by
the Edel-Kindwall tables.\21\
---------------------------------------------------------------------------
\21\ Downs GJ, Kindwall EP "Aseptic necrosis in caisson
workers: A new set of decompression tables," 1986.
---------------------------------------------------------------------------
The Edel-Kindwall tables have been approved as part of variance
requests in some State Plan states. In its December 15, 2011
presentation, the Seattle Tunnel and Tail Team presented permanent
variances--one from Oregon in 2004 and another from Washington in
2007--that approved the use of the Edel-Kindwall tables for underground
construction projects within those states (OSHA-2011-0124-0066).
German Decompression Tables
OSHA asks for comment on whether to (also) include the German
decompression tables as a replacement for the tables in Appendix A of
subpart S. These decompression tables were developed by Dr. Max
Hahn.\22\ These tables were approved for use in Oregon, along with the
French tables, in 2006 (OSHA-2012-0036-0007). The information from the
Flook study discussed above resulted in the German decompression tables
being approved by the Health and Safety Executive for use in the United
Kingdom, "the first time non-UK tables had been used on a UK
contract." \23\
---------------------------------------------------------------------------
\22\ Huggins, Karl E "The Dynamics of Decompression Workbook",
1992.
\23\ Lamont, DR, Flook, V "A Comparison of Oxygen Decompression
Tables for Use in Hyperbaric Tunnelling".
---------------------------------------------------------------------------
British Blackpool Tables
OSHA asks for comment on whether the British Blackpool
decompression tables should (also) be included as a replacement for the
tables in Appendix A of subpart S. The Blackpool decompression tables
were published in 1973 with air as the breathing gas for
decompression.\24\ The Blackpool decompression tables are included in
the United Kingdom's Health and Safety Executive's "A Guide to
Compressed Air Work 1996," The Guide updated the "Work in Compressed
Air Special Regulations 1958." \25\ In 2001, oxygen decompression
became mandatory in the United Kingdom, using a modified Blackpool
table that required "oxygen breathing from 0.6 bar downwards." \26\ A
year later, the Health and Safety Executive reprinted "A Guide to
Compressed Air Work 1996" to reflect the change in policy. The
modified Blackpool Tables were compared to other oxygen decompression
tables in the Flook study discussed above.
---------------------------------------------------------------------------
\24\ Lamont, DR, Flook, V "A Comparison of Oxygen Decompression
Tables for Use in Hyperbaric Tunnelling".
\25\ A guide to the Work In Compressed Air Regulations 1996,
Health and Safety Executive.
\26\ Lamont, DR, Flook, V "A Comparison of Oxygen Decompression
Tables for Use in Hyperbaric Tunnelling".
---------------------------------------------------------------------------
Insofar as the Agency can find, underground projects which
incorporate new tunneling technology have not followed OSHA's existing
decompression tables, but have followed more recently developed tables.
In each case, federal OSHA or a State Plan state has been persuaded by
the available research and studies on the matter that the newer
decompression methods better protect underground workers. (The states
have either granted variances (discussed above) or promulgated a new
standard (California \27\)). Many of these tunneling projects also
require work in atmospheres above the 50 p.s.i. limit in OSHA's
construction subpart S, as current tunneling technology, when there are
gaseous or wet underground conditions particularly, require higher
pressures. (OSHA is not proposing to change the 50 p.s.i. limit in the
SIP-IV rulemaking.)
---------------------------------------------------------------------------
\27\ California incorporates the Navy Diving Manual by
reference. Because these tables are specifically for diving,
conversions are necessary to use the tables in a non-diving
application. See http://www.dir.ca.gov/title8/6085.html. For this
reason, OSHA is not proposing to add, or seeking comment on, the
Navy Diving Manual.
---------------------------------------------------------------------------
SIP-IV Request for Information
Given the evidence suggesting that other decompression tables are
at least as safe and in many cases safer than OSHA's current
decompression tables, OSHA asked for comment on this topic in its
Standards Improvement Project--Phase IV, Request for Information (77 FR
72781; Dec. 6, 2012). OSHA received comments from various groups
requesting that OSHA update or revise its decompression tables (OSHA-
2012-0007-0011, -0016, -0017). All of the commenters stated that OSHA's
current decompression tables were outdated and did not address the
hazard of DCI as well as more recently developed decompression tables.
NIOSH argues that updating the decompression tables in Appendix A will
shorten the time needed for decompression and reduce the instances of
decompression sickness (OSHA-2012-0007-0017). NIOSH recommended that
OSHA take the following steps when updating its decompression tables:
Require staged decompression, allow 100 percent oxygen use during
decompression, vary the decompression schedule based on exposure time,
and allow for greater pressures in underground construction projects.
NIOSH also recommended that OSHA adopt the Edel-Kindwall tables. The
Laborers' Health and Safety Fund of North America recommended that OSHA
adopt the French and Tri-mix \28\ tables, with a certifying physician
and variances from OSHA above 8 bars (116 p.s.i.) of pressure (OSHA-
2012-0007-0011).
---------------------------------------------------------------------------
\28\ Tri-mix is a mixture of three breathing gases: Oxygen,
nitrogen, and helium. The mixture of the gases is usually
proprietary.
---------------------------------------------------------------------------
OSHA must set safety standards that provide a high degree of worker
protection (Int'l Union, UAW v. OSHA, 37 F.3d 665,669 (D.C. Cir. 1994);
58 FR 16612, 16615 (Mar. 30, 1993)). Such standards must also be
feasible and cost-effective. Based on the evidence discussed above,
OSHA preliminarily determines that the best available evidence shows
that the decompression tables in Appendix A to subpart S are not highly
protective and that the French tables are more protective of worker
health. OSHA is seeking comment on whether the Edel-Kindwall, British,
and German tables should be included as options in the OSHA standard.
In addition, OSHA requests comment on NIOSH's statement that staged
decompression will shorten the time needed for decompression.
Therefore, OSHA proposes to remove the decompression tables found
in Appendix A of Subpart S and replace them with the 1992 French Air
and Oxygen decompression tables. The French tables have been used most
often in the U.S., and the Agency has collected more information on
their safety. Regarding the request for comment on other identified
tables, OSHA also asks whether it would be less confusing and easier
for the tunneling industry to use one set of tables, rather than
include more alternatives in the OSHA standard?
The tables will be posted in the docket of this proposal for
commenters to view.
Alternative Regulatory Structure
OSHA seeks comment on an alternative regulatory structure for
regulating which decompression tables will be used to decompress
workers from a compressed air environment. Under this structure, in
addition to removing its current decompression tables, OSHA would also
revise Sec. 1926.803(f) to allow employers to use any decompression
table that a qualified person determines will protect workers from
instances of DCI on the project. The table used would have to meet
accepted industry practices for prevent DCI in workers.
As discussed earlier, OSHA adopted the Washington state
decompression tables into its regulations under section 6(a) of the
Occupational Safety and Health Act. Although used by several states
prior to their adoption, few, if any, studies regarding the
effectiveness of the Washington state decompression tables were done
prior to their adoption by OSHA. Instances of DCI using the current
OSHA tables led NIOSH to support research that resulted in the creation
of the Edel-Kindwall tables. Since then, several other tables have been
developed that when used result in a lower incidence of DCI.
OSHA has granted variance requests from members of the underground
construction industry asking, among other things, to use decompression
tables that they believe are at least as effective as the current OSHA
tables found in Appendix A of subpart S. On May 23, 2014, OSHA granted
the variance request of Tully/OHL USA Joint Venture (79 FR 29809).
Tully/OHL USA requested to use the 1992 French decompression tables,
which permit both air and oxygen decompression. OSHA granted a variance
to Traylor/Skanska/Jay Dee Joint Venture in which they also requested
to use the 1992 French decompression tables, as well as the proprietary
Trimix tables, in their variance application (80 FR 16440).\29\ OSHA
also granted a permanent variance to Impreglio Healy Parsons Joint
Venture on August 20, 2015 (80 FR 50652). Their variance application
also requested to use the 1992 French decompression tables (OSHA-2014-
0011-0001). Several occupational safety and health programs have
approved of various decompression tables for underground construction
work. In the Seattle Tunnel and Tail Team's presentation to ACCSH, they
included variances from Washington that approved the use of the 1992
French decompression tables, Trimix tables, and modified NIOSH (Edel-
Kindwall) tables (OSHA-2011-0124-0066). The presentation also included
a variance from Oregon that approved the use of the DCIEM Oxygen
Decompression tables, also known as the Canadian Navy Tables, the 1992
French Decompression Tables, and the NIOSH (Edel-Kindwall) Oxygen
Decompression tables (OSHA-2011-0124-0066). In their comment to the
Request for Information, the Laborer's health and Safety Fund of North
America recommended OSHA adopt the French tables, but listed four other
decompression tables--the Edel-Kindwall tables, the U.S. Navy Tables
(Revision 6), the Canadian Navy Tables (1992), and the Trimix tables
(for pressures over 4.8 bar)--that had been approved by variance in
several states. (OSHA-2012-0007-0011). Furthermore, the Flook study
suggests that many of the oxygen decompression tables provide virtually
the same protection from DCI.
---------------------------------------------------------------------------
\29\ Although Traylor/Skanska/Jay Dee Joint Venture requested
the use of Trimix tables in their variance application for the Blue
Plains Tunneling (BPT) project, they later explained to OSHA that
"[a]t the Blue Plains Tunnel, Traylor will not experience
hyperbaric pressures greater than 3.6 bar. Therefore we do not plan
on using trimix at the BPT project." OSHA-2012-0035-0013.
---------------------------------------------------------------------------
Given the numerous decompression tables that employers requests to
use in variance applications, it appears that the industry does not
believe there is one table that is applicable for all underground
construction projects where workers may need to be decompressed. OSHA
believes using a performance standard rather than specifying which
table an employer must use may allow employers greater flexibility in
providing safe decompression for their workers. OSHA requests comment
on this regulatory approach.
Statement of Reasonable Availability
OSHA believes that the 1992 French Decompression Tables included in
this proposal are reasonably available to interested parties. The
tables are published in the Official Journal of the French Republic,
titled "Travaux en milieu hyperbare, measures particuli[egrave]res de
prevention" (Work in hyperbaric environment, specific prevention
measures). J. O. Rep. Fran[ccedil]. Brochure n[deg] 1636, June 1992.
The tables are available for purchase from the French government at
http://www.journal-officiel.gouv.fr/. In addition, it is available in
the docket for this rulemaking and in OSHA's docket office for review.
If OSHA ultimately finalizes this rule, the tables will be maintained
in OSHA's national and regional offices for review by the public.
Subpart S--Underground Construction, Caissons, Cofferdams and
Compressed Air also has several provisions that limit the quantities of
oxygen that may be taken below ground and kept there. OSHA asks for
comment on providing an exception to those requirements for purposes of
maintaining oxygen on hand for decompression purposes, which would be
necessary in a final rule as the updated tables discussed above require
the use of oxygen.
15. Subpart W of 1926--Rollover Protective Structures; Overhead
Protection
Provisions in subpart W specify minimum performance criteria for
rollover protective structures (ROPS) and overhead protection on
construction equipment. The Agency is proposing to amend the existing
standards 29 CFR 1926.1000, 1926.1001, 1926.1002 and 1926.1003 by
removing the provisions that specify the test procedures and
performance requirements, and replacing those provisions with
references to the underlying consensus standards from which they were
derived. The substantive differences between the consensus standards
and OSHA's standards are minimal. The Agency is also proposing to
remove irrelevant text from Sec. 1926.1000.
The original source standards for the current subpart W
requirements are the Society of Automotive Engineers Standards
("SAE") J320a-1971, J394-1971, J395-1971, J396-1971, J334a-1970,
J167-1970, J168-1970, and J397-1969. The American National Standards
Institute and SAE subsequently canceled these standards. To design and
develop new equipment the industry now uses the most recent
International Organization for Standardization ("ISO") standards: ISO
3471-2008; ISO 5700-2013; and ISO 27850-2013. Though the names of the
construction equipment covered by the consensus standards have changed
over time, OSHA believes that all the equipment listed in current Sec.
1926.1001(a) is covered by one of those ISO standards. A comment from a
representative of Caterpillar, Inc. stated that the SAE standards have
either been cancelled or superseded by new ISO standards (OSHA-2012-
0007-0009). OSHA reviewed the relevant standards and believes that the
standards identified in the proposed revisions reflect the current
design and development of ROPS for equipment covered by subpart W. OSHA
preliminarily concludes that using the proposed ISO standards will be
as protective as using the current OSHA standards. Therefore, OSHA is
proposing that, for new equipment manufactured after the effective date
of the revised standard, the performance measures for testing ROPS meet
the ISO standards. This proposed incorporation by reference will
eliminate over 20 pages of text and diagrams in the CFR.
OSHA proposes to rename Sec. 1926.1000 as "Scope" because this
more accurately describes what follows in this section. Proposed
paragraph (a) lists the types of equipment currently covered by subpart
W. It also adds compactors and rubber-tired skid-steer equipment
manufactured after the effective date of the final rule, which existing
Sec. 1926.1000(a)(2) anticipates as a possible expansion of the scope.
The most recent ISO standards apply to compactors and skid-steer
loaders as well as the equipment included in the current standard, and
based on interviews with several manufacturers OSHA preliminarily
concludes that all compactors and skid steer loaders currently produced
meet those requirements. Proposed paragraph (b) states which standards
apply to equipment manufactured before the publication of a final rule.
Proposed paragraph (c) states which standards apply to equipment manufactured
after the publication of a final rule. Paragraphs (d) through (f) remain
unchanged in the proposal, but OSHA solicits comment on whether paragraphs (d),
"Remounting," (e), "Labeling," and (f), "Machines meeting certain existing
governmental requirements" are necessary or are obsolete (due to adoption
of modern consensus standards) and should be deleted.
Currently, Sec. 1926.1000(c) limits the application of the
requirements of Sec. Sec. 1926.1001 and 1926.1002 to equipment
manufactured after July 1, 1969. The proposal eliminates this
limitation because it is OHSA's understanding that there are not any
pieces of covered equipment in operation today that are more than 45
years old and do not meet the SAE standards. OSHA seeks comment on
whether this is so, and any data on the types and numbers of pre-1969,
non-SAE compliant equipment currently in use.
Current Sec. 1926.1001 provides ROPS requirements for rubber-tired
self-propelled scrapers, rubber-tired front end loaders, rubber-tired
dozers, crawler tractors, crawler-type loaders, and motor graders. The
proposed rule deletes the current ROPS specifications for this
equipment, and replaces it with a requirement that covered equipment
manufactured before the effective date of the final rule comply with
SAE J397-1969--Critical Zone--Characteristics and Dimensions for
Operators of Construction and Industrial Machinery, SAE 320a-1970--
Minimum Performance Criteria for Roll-Over Protective Structure for
Rubber-Tired, Self-Propelled Scrapers, SAE J394-1970--Minimum
Performance Criteria for Roll-Over Protective Structures for Rubber-
Tired Front End Loaders and Rubber-Tired Dozers, SAE J395-1970--Minium
Performance Criteria for Roll-Over Protective Structure for Crawler
Tractors and Crawler-Type Loaders, and SAE J396-1970--Minimum
Performance Criteria for Roll-Over Protective Structure for Motor
Graders, as applicable. The proposal requires equipment manufactured
after the effective date of the final rule (including compactors and
rubber-tired skid steer equipment) to meet the requirements of ISO
3471-2008, Earth-moving machinery--Roll-over protective structures--
Laboratory tests and performance requirements. This standard contains
specifications for ROPS to protect employees. Because, as noted above,
OSHA believes that covered equipment is already being manufactured to
the requirements of ISO 3471-2008, the proposal provides the option for
equipment manufactured before the effective date of the final rule to
comply with the ISO standard rather than the SAE standards.
Current Sec. 1926.1002 provides ROPS requirements for wheel-type
agricultural equipment and industrial tractors used in construction.
The proposed rule deletes the current ROPS specifications for this
equipment, and replaces it with a requirement that covered equipment
manufactured before the effective date of the final rule comply with
SAE J168-1970-Protective Enclosures--Test Procedures and Performance
Requirement and SAE J334a-1970-Protective Frame Test Procedures and
Performance Requirements, as applicable. The proposal requires
equipment manufactured after the effective date of the final rule meet
the requirements of ISO 5700-2013, Tractors for agriculture and
forestry--Roll-over protective structures--Static test method and
acceptance conditions. This standard contains specifications for ROPS
to protect employees. Because, as noted above, OSHA believes that
covered equipment is already being manufactured to the requirements of
ISO 5700-2013, the proposal provides the option for equipment
manufactured before the effective date of the final rule to comply with
the ISO standard rather than the SAE standards.
OSHA solicits comment on whether any equipment covered by Sec.
1926.1002 that complies with ISO 3471-2008, the standard for earth-
moving machinery should be considered in compliance for ROPS. OSHA asks
this because ISO 3471-2008 requires testing at higher levels of energy
than ISO-5700.
Current Sec. 1926.1003 provides design and installation
requirements for the use of overhead protection for operators of
agricultural and industrial tractors used in construction. The proposed
rule deletes the current overhead protection specifications for this
equipment, and replaces it with a requirement that covered equipment
manufactured before the effective date of the final rule comply with
SAE J167-1970-Overhead Protection for Agricultural Tractors- Test
Procedures and Performance Requirements when using overhead protection.
The proposal requires equipment manufactured after the effective date
of the final rule meet the requirements of ISO 27850-2013, Tractors for
agriculture and forestry-- Falling object protective structures-- Test
procedures and performance requirements when using overhead protection.
This standard contains specifications for overhead protection to
protect employees. Because, as noted above, OSHA preliminarily
concludes that overhead protection, when used, is manufactured to the
requirements of ISO 27850-2013, the proposal provides the option for
equipment manufactured before the effective date of the final rule to
comply with the ISO standard rather than the SAE standards.
Statement of Reasonable Availability
As noted above, OSHA is continuing to incorporate by reference
Society of Automotive Engineers (SAE) standards. OSHA believes that
these standards are reasonably available to interested parties. They
are available for purchase the Society of Automotive Engineers (SAE),
400 Commonwealth Drive, Warrendale, PA 15096; telephone: 1-877-606-
7323; fax: 724- 776-0790; Web site: http://www.sae.org/. OSHA proposes
to incorporate by reference International Organization for
Standardization (ISO) standards. OSHA believes that these standards are
reasonably available to interested parties. They are available for
purchase from the International Organization for Standardization (ISO),
1, ch. de la Voie-Creuse, Case postale 56, CH-1211 Geneva 20,
Switzerland; telephone: +41 22 749 01 11; fax: +41 22 733 34 30; Web
site: http://www.iso.org/. In addition, it is available in the docket
for this rulemaking and in OSHA's docket office for review. If OSHA
ultimately finalizes this rule, the standards will be maintained in
OSHA's national and regional offices for review by the public.
16. Subpart Z of 1926--Toxic and Hazardous Substances, Coke Oven
Emissions in 29 CFR 1926.1129.
Section 1926.1129 regulates exposure to coke oven emissions in
construction. OSHA incorporated this standard into part 1926 in 1993
(58 FR 35256, June 30, 1993) and revised it to be just a reference to
the identical general industry standard in 1996 (61 FR 31428, June 20,
1996). In neither rulemaking did OSHA discuss, in particular, the
application of the coke oven standard to construction, as it was only
one of many standards involved in each rulemaking.
However, the provisions of this standard do not fit construction
work. Much of the standard regulates exposure in the "regulated
area." (See 29 CFR 1910.1029(d)). But this "regulated area" is
limited, including only "[t]he coke oven battery including topside and
its machinery, pushside and its machinery, coke side and its machinery,
and the battery ends; the wharf; and the screening station [and the]
beehive oven and its machinery" (Sec. 1910.1029(d)(2)(i) and (ii)).
As stated in an interpretation issued nearly contemporaneously with the
general industry coke oven emissions standard, "[t]he ground level around
the base of the coke oven battery is not generally considered in the
regulated area unless work related to coke oven operations take place.
The coke oven regulation, 29 CFR 1910.1029, does not apply to employees walking
past coke ovens or between them." (Interpretation memorandum to White, May
17, 1977). Any work operating the coke ovens would be general industry
work, and it is unlikely that any workers doing construction work, even
if within a facility with an operating coke oven, would be so close to
the coke oven as to be covered under the standard. OSHA recognized this
issue in the 1990s, when it stated that the coke oven construction
standard was "invalid," and would be removed from the Code of Federal
Regulations. (Interpretation letter to Katz, June 22, 1999). OSHA also
advised its Regional Offices of this interpretation and that they
should not enforce Sec. 1926.1129 in 2005. OSHA's inspection database
contains no record of a citation under this standard since 1997.\30\
---------------------------------------------------------------------------
\30\ There were a few citations between 1993 and 1997.
---------------------------------------------------------------------------
Since, in effect, the standard does not address construction worker
exposures to coke oven emissions, there would be no reduction in the
level of protection. To the extent any construction workers would in
the future be exposed to coke oven emissions, OSHA could cite the
employer under the General Duty Clause (29 U.S.C. 654(a)(1)). Thus,
OSHA is now proposing to delete Sec. 1926.1129. OSHA is also proposing
to delete the reference to Sec. 1926.1129 in Sec. 1926.55, Appendix A
(proposed Table A).
17. Additional Proposed Revisions to Paragraphs and Appendices in 29
CFR Parts 1910, 1915, and 1926 To Remove Social Security Number
Collection Requirements
In addition to the revisions described above, OSHA is proposing a
series of revisions to various standards in 29 CFR parts 1910, 1915,
and 1926, to remove the requirements that employers include an
employee's social security number (SSN) on exposure monitoring, medical
surveillance, and other records. OSHA believes that these revisions
will protect employees' privacy and prevent identity fraud.
Many of OSHA's standards--particularly, its substance-specific
standards--require that exposure monitoring, medical surveillance, and
other records include the employee's SSN. OSHA has historically
required SSNs on these records because SSNs, which are assigned at
birth and do not change over time, are unique and constant personal
identifiers that offer a useful method for linking records with
individual employees. OSHA explained in a 1999 letter of interpretation
regarding the asbestos standard for construction that only using an
employee's name to match a record with an employee is undesirable
because "[m]any employees have identical or similar names." (Mr.
Shawn T. Christon, April 16, 1999). Similarly, in the preamble to the
final methylene chloride standard (62 FR 1494, January 10, 1997), OSHA
explained that a SSN is a more useful identifier than an employer-
generated employee identification number because each SSN is "unique
to an individual for a lifetime and does not change as an employee
changes employers." (62 FR 1494, 1598).
However, increasingly widespread concerns about identity theft have
prompted OSHA to reexamine whether requiring SSNs on records is still
appropriate. Identity theft has emerged as one of the fastest growing
crimes in the United States, and the Social Security Administration
(SSA) has alerted the public that repetitive use and disclosure of SSNs
in organizational recordkeeping systems should be avoided, as doing so
multiplies the susceptibility of persons to potential identity theft
(SSA, Identity Theft and Social Security, SSA Publication No. 05-10064
(Sept. 2015)), available at: https://www.ssa.gov/pubs/EN-05-10064.pdf).
OSHA recognizes that limiting the use and transmission of SSNs is a key
strategy for preventing identity theft, and acknowledges that requiring
employers to include employee SSNs on exposure monitoring, medical
surveillance, and other records does not further that effort.
OSHA previously requested public comments on its SSN collection
requirements in the Standards Improvement Project Phase II (SIP II)
proposal (67 FR 66494-66501, October 31, 2002), and the comments that
the Agency received reflected mixed opinions on the usefulness of, and
the privacy risks created by, including employee SSNs on monitoring and
surveillance records. As discussed in the SIP II final rule (70 FR
1112, January 5, 2005), several commenters supported maintaining the
requirements to collect employee SSNs, citing, among other reasons,
SSNs' common use in other employee records and their suitability for
tracking employees in large epidemiological studies of workplace
populations (e.g., Exs. 3-9, 3-16, 3-14, OSHA Docket No. S-778-A).
Several other commenters, however, expressed interest in replacing SSNs
with alternative identification numbers that would pose a less serious
risk to employee privacy and security if acquired by a third party
(e.g., Exs. 3-1, 3-7, 3-28, 4-7, OSHA Docket No. S-778-A). OSHA
ultimately decided not to take action in the SIP II final rule
concerning the use of SSNs in its standards, concluding that the Agency
needed to further investigate the issue (70 FR 1112, 1126-27).
OSHA subsequently clarified in two letters of interpretation that
employers are permitted under its current standards to maintain a
second set of records that use alternative identification numbers in
place of SSNs (Mr. Sutherland, Feb. 5, 2007; Mr. Mayo, March 27, 2008).
In the 2008 letter, which responded to an inquiry about the SSN
requirements in the recordkeeping provisions of the lead standard (29
CFR 1910.1025(d)(5)), OSHA clarified that employers are permitted to
keep a second set of records with alternative identification numbers in
place of SSNs so long as "those unique identification numbers [can] be
easily cross referenced to the employee's SSN," because "such a
system would ensure that the employees' privacy is maintained, while
also satisfying the intent of the Lead Standard" (Mr. Mayo, March 27,
2008). The letter also emphasized that the lead standard only requires
employers to assure access to complete exposure records that contain
SSNs when requested by an employee, a designated employee
representative, or a representative of OSHA or NIOSH.
OSHA also considered its SSN collection requirements after it
published the Notice of Proposed Rulemaking for Occupational Exposure
to Respirable Crystalline Silica (78 FR 56273, September 12, 2013).
OSHA received many comments on the recordkeeping provisions in the
proposed paragraphs (j)(1)(ii)(G) (Air monitoring data) and
(j)(3)(i)(A) (Medical surveillance) which, consistent with the
recordkeeping requirements in OSHA's other health standards, required
the employer to include the employee's SSN in the standard's monitoring
and surveillance records. More than a dozen commenters addressed the
SSN collection requirements and all of those commenters expressed
opposition to including the requirements in the standard (e.g.,
Document ID 1772, p.1; 1785, pp. 9-10; 2185, pp. 8; 2267, p. 7; 2270,
p. 3; 2291, p. 26; 2301, Attachment 1, pp. 80-81; 2311, p. 3; 2315, p.
7; 2348, Attachment 1, p. 39; 2357, pp. 36-37; 2363, p. 7; 2379, Appendix 1, p. 73; 2107, p. 4; 1963,
p. 3, Docket No. OSHA-2010-0034). Commenters generally viewed the
inclusion of a SSN on the records as creating an unnecessary risk to
employee privacy and security, and sought the flexibility to use
alternate personal identifiers in place of SSNs. Several commenters
explained that companies currently use alternative identifiers--such as
employee identification numbers--to link monitoring and surveillance
records with specific employees, and stated that these identifiers can
be internally linked back to an employee's SSN if that information is
needed (e.g., Docket ID 2379, Appendix 1, p. 73; 2357, pp. 36-37; 2270,
p.3, 2348, Attachment 1, p. 39; 2301, Attachment 1, pp. 80-81; 2291, p.
26, Docket No. OSHA-2010-0034). Commenters acknowledged that SSNs must
be used on some government reports (e.g., payroll reports to the IRS)
and are therefore present in some employer records, but stated that
access to those records is usually more restricted than to air
monitoring records.
OSHA ultimately decided to retain the requirements to include the
employee's SSN in the recordkeeping paragraphs of the silica final
rule, stating that including the employee SSNs on such records is
"long-standing OSHA practice, based on the fact that it is a number
that is both unique to an individual and is retained for a lifetime,
and does not change as an employee changes employers" (81 FR 16285,
16852, March 25, 2016). OSHA acknowledged the commenters' concerns
about employee privacy and identity theft, but explained that any
change to the Agency's requirements for including employee SSNs on
exposure records should be done comprehensively, rather than on a
standard-by-standard basis. OSHA stated that it intended to examine the
SSN requirements in all of its substance-specific health standards in a
future rulemaking.
OSHA originally required collection of employee SSNs in its
standards because SSNs are assigned at birth and do not change over
time, which makes SSNs useful for linking records with individual
employees. As unique and constant personal identifiers, SSNs are also
suitable for researchers who track employees in large epidemiological
studies of workplace populations. However, other tracking methods have
emerged that allow researchers to conduct these studies without the use
of SSNs.
OMB requires all federal agencies to identify and eliminate
unnecessary collection and use of SSNs in agency systems and programs
(see Memorandum from Clay Johnson III, Deputy Director for Management,
Office of Management and Budget, to the Heads of Executive Departments
and Agencies Regarding Safeguarding Against and Responding to the
Breach of Personal Identifiable Information (M-01-16), May 22, 2007
(available at: www.whitehouse.gov/omb/memoranda/fy2007/m07-16.pdf).
Recognizing the seriousness of the threat of identity theft and the
availability of other methods for tracking employees for research
purposes, if needed, OSHA has reexamined the SSN collection
requirements in its standards, and now proposes to comprehensively
remove all requirements to include employee SSNs on exposure
monitoring, medical surveillance, or other records. Specifically, OSHA
proposes to delete the requirement to include an employee's SSN in
records employers must maintain under the following standards:
Hazardous Waste Operations and Emergency Response--
Sec. Sec. 1910.120(f)(8)(ii)(A) and 1926.65(f)(8)(ii)(A);
Asbestos--Sec. Sec. 1910.1001(m)(1)(ii)(F),
(m)(3)(ii)(A), and Appendix D, 1915.1001(n)(2)(ii)(F), (n)(3)(ii)(A),
and Appendix D, and 1926.1101(n)(2)(ii)(F), (n)(3)(ii)(A), and Appendix
D;
Vinyl Chloride--Sec. 1910.1017(m)(1);
Inorganic Arsenic--Sec. 1910.1018(q)(1)(ii)(D) and
(q)(2)(ii)(A);
Lead--Sec. Sec. 1910.1025(d)(5), (n)(1)(ii)(D),
(n)(2)(ii)(A), (n)(3)(ii)(A), and Appendix B, and 1926.62(d)(5),
(n)(1)(ii)(D), (n)(2)(ii)(A), (n)(3)(ii)(A), and Appendix B;
Chromium (VI)--Sec. Sec. 1910.1026(m)(1)(ii)(F) and
(m)(4)(ii)(A), 1915.1026(k)(1)(ii)(F) and (k)(4)(ii)(A), and
1926.1126(k)(1)(ii)(F) and (k)(4)(ii)(A);
Cadmium--Sec. Sec. 1910.1027(n)(1)(ii)(B), (n)(3)(ii)(A),
and Appendix D, and 1926.1127(d)(2)(iv), (n)(1)(ii)(B), and
(n)(3)(ii)(A);
Benzene--Sec. Sec. 1910.1028(k)(1)(ii)(D) and
(k)(2)(ii)(A);
Coke Oven Emissions--Sec. Sec. 1910.1029(m)(1)(i)(a) and
(m)(2)(i)(a);
Bloodborne Pathogens--Sec. 1910.1030(h)(1)(ii)(A);
Cotton Dust--Sec. Sec. 1910.1043(k)(1)(ii)(C),
(k)(2)(ii)(A), and Appendices B-I, B-II, and B-III;
1,2 Dibromo-3-Chloropoane--Sec. Sec.
1910.1044(p)(1)(ii)(d) and (p)(2)(ii)(a);
Acrylonitrile--Sec. 1910.1045(q)(2)(ii)(D);
Ethylene Oxide--Sec. Sec. 1910.1047(k)(2)(ii)(F) and
(k)(3)(ii)(A);
Formaldehyde--Sec. Sec. 1910.1048(o)(1)(vi), (o)(3)(i),
(o)(4)(ii)(D), and Appendix D;
Methylenedianiline--Sec. Sec. 1910.1050(n)(3)(ii)(D),
(n)(4)(ii)(A), and (n)(5)(ii)(A), and 1926.60(o)(4)(ii)(F) and
(o)(5)(ii)(A).
1,3-Butadiene--Sec. Sec. 1910.1051(m)(2)(ii)(F),
(m)(4)(ii)(A), and Appendix F;
Methylene Chloride--Sec. Sec. 1910.1052(m)(2)(ii)(F),
(m)(2)(iii)(C), (m)(3)(ii)(A), and Appendix B;
Respirable crystalline silica--Sec. Sec.
1910.1053(k)(1)(ii)(G) and (k)(3)(ii)(A), and 1926.1153(j)(1)(ii)(G)
and (j)(3)(ii)(A).
The Agency believes that removing these requirements will
facilitate employers' efforts to safeguard employee privacy. Based on
the comments that it received in response to the SIP II request and the
proposed silica rule, OSHA understands that some employers use a unique
employee identification number to identify employees, and because these
numbers are not used in commerce, they pose a less serious risk to
employee privacy than SSNs if they are acquired by an authorized third
party. Alternatively, some employers use other personal identifying
information, either alone or in combination, to identify employees,
such as first and last name, date of birth, government issued
identification or driver's license number, passport number, or the last
four digits of the SSN. Although some of this personal information,
such as date of birth, may be used in commerce, exposure of that
information may also be less damaging to employee privacy than exposure
of an employee's SSN.
The proposed revisions would not otherwise alter OSHA's
requirements for maintaining records, and employers would thus be
expected to continue handling previously-generated records that contain
SSNs as they currently do. The proposal does not require the deletion
of employee SSNs from existing records, and it does not require
employers to use an alternative unique employee identifier on those
records. The proposal allows employers, who wish to do so, to continue
using SSNs on records developed in compliance with the standards noted
above. Accordingly, OSHA believes that these proposed revisions will
not increase an employer's compliance burden under any of the revised
standards.
OSHA sought and received a recommendation from the Advisory
Committee on Construction Safety and Health (ACCSH) to proceed with its
proposal to remove the SSN collection requirements from its standards.
At a public meeting held on December 2, 2015, ACCSH unanimously
recommended that OSHA proceed with the proposal (ACCSH Dec. 2, 2016
transcript, pp. 83-98, available at Docket No. OSHA-2015-0002-0113).
However, members of ACCSH also requested that OSHA provide guidance to
employers whether they could continue using SSNs, and as noted above
the proposal would allow them to do so.
OSHA seeks comments on all aspects of this proposal. In addition,
the Agency seeks comments on potential alternative approaches,
including a requirement that the employer implement an alternative
unique employee identifier, and that the employer remove all employee
SSNs from all existing records maintained under the standards noted
above. In particular, OSHA seeks comments on whether employers
currently use alternatives to SSNs to identify employees in the records
required by OSHA's standards, and if so, which alternative identifiers
employers use, and whether employers maintain two sets of records or
just a single set. OSHA would appreciate detailed information on any
alternatives to SSNs. The Agency also requests comments on how removing
the SSN requirements from exposure monitoring and surveillance records
would affect employers' ability to identify employees on records, and
whether the proposed revisions would affect the way that employers
conduct business.
Regarding the handling of existing records, OSHA requests
information on whether employers currently maintain the records
required under OSHA's standards electronically, in hard copy, or both.
For those employers that store records electronically, OSHA seeks
information on whether employers store those records in a database, and
if so, whether OSHA's proposed revisions would require employers to
modify or reprogram their databases. OSHA also requests information on
the feasibility of removing SSNs from existing records, including any
obstacles that might prevent employers from removing SSNs from
electronic records, and whether it would be practicable to remove SSNs
from existing hard copy records.
This proposal would impact several forms that are contained in
appendices to OSHA's standards, and when reviewing those forms to
remove their SSN collection requirements, OSHA noticed that several
forms from older standards do not comport with OMB's Standards for
Maintaining, Collecting, and Presenting Federal Data on Race and
Ethnicity, as updated on October 30, 1997 (62 FR 58782-58790). The
Agency is considering revising the forms to either update the language
to ensure compliance with OMB's standards or remove the question
altogether. For example, Part 1 ("Initial Medical Questionnaire") of
Appendix D of the asbestos standard for general industry (29 CFR
1910.1001) includes a question (currently, #15) that states:
Race:
1. White __
2. Black __
3. Asian __
4. Hispanic __
5. Indian __
6. Other__
To reflect a combined race and ethnicity format (see 62 FR 58782,
58789), OSHA is considering revising the language to state:
Race:
1. White __
2. Black or African American __
3. Asian __
4. Hispanic or Latino __
5. American Indian or Alaska Native __
6. Native Hawaiian or __
Other Pacific Islander __
Other forms impacted by the removal of SSN collection requirements
that have questions that would be similarly affected are: Asbestos in
Construction (Sec. 1926.1101, Appendix D) and Maritime (Sec.
1915.1001 Appendix D); Cotton Dust (Sec. 1910.1043, Appendix B-1,
Appendix B-II, and Appendix B-III) and Methylene Chloride (Sec.
1910.1052, Appendix B)
OSHA requests comments on revising the appendices as indicated
above and particularly on whether revising the language of race and
ethnicity questions would impose any additional burden hours or costs
on the respondents.
IV. Preliminary Economic Analysis and Regulatory Flexibility Act
Certification
A. Overview
Executive Orders 12866 and 13563 require that OSHA estimate the
benefits, costs, and net benefits of proposed regulations. Executive
Orders 12866 and 13563, the Regulatory Flexibility Act (5 U.S.C. 601-
612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1532(a))
also require OSHA to estimate the costs, assess the benefits, and
analyze the impacts of certain rules that the Agency promulgates.
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, reducing costs, harmonizing rules, and promoting
flexibility.
The proposed rule is not an "economically significant regulatory
action" under Executive Order 12866 or UMRA, and it is not a "major
rule" under the Congressional Review Act (5 U.S.C. 801 et seq.). This
proposed rule has estimated annual costs of $27,899 and would lead to
approximately $3.2 million per year in cost savings to regulated
entities. Thus, neither the benefits nor the costs of this rule exceed
$100 million. In addition, it does not meet any of the other criteria
specified by UMRA or the Congressional Review Act for a significant
regulatory action or major rule. This Preliminary Economic Analysis
(PEA) addresses the costs, cost savings benefits, and potential
economic impacts of the proposed rule.
The purpose of the proposed provisions in this standard was to
reduce the burden on employers, or provide employers with compliance
flexibility, by removing or revising confusing, outdated, duplicative,
or inconsistent requirements, while maintaining the same level of
protection for employees. This proposed standard deletes and revises a
number of provisions in existing OSHA standards. In most instances, the
Agency chose to revise outdated provisions to improve clarity, as well
as consistency, with standards more recently promulgated by the Agency
or current consensus standards. In other instances, the proposed
provisions revise standards to improve consistency with current
technology or research, and to restore OSHA's original intent to
standards. Because of the reduction or removal of current requirements
and because many of the updates reflect what is already practiced in
the applicable industry, OSHA has preliminarily concluded that the
proposed rule is technologically feasible.
B. Costs, Cost Savings, and Benefits
Work-Related Hearing Loss
OSHA is proposing to add a specific cross-reference to 29 CFR
1904.5--Determination of Work-Relatedness--in Sec. 1904.10--Recording
Criteria for Cases Involving Occupational Hearing Loss--paragraph
(b)(6). This cross-reference specifies that employers must comply with
the provisions of Sec. 1904.5 when making a determination as to
whether a worker's hearing loss is work-related. OSHA is not changing
any requirements of 29 CFR 1904.10, but merely clarifying the Agency's
intent. Since this change does not change the requirements of this
standard, OSHA has preliminarily determined that neither new costs nor
compliance burdens would be incurred.
Lockout/Tagout
OSHA is proposing to remove the word "unexpected" from the phrase
"unexpected energization" in its general industry standard regulating
the control of hazardous energy (lockout/tagout) at 29 CFR 1910.147. As
described in the Summary and Explanation, because removing the word
"unexpected" from the language of this standard would not represent
any revision in OSHA policy, but instead clarify the Agency's original
meaning of the term "energization" in the standard, OSHA preliminary
concludes that this action would not result in any costs, compliance
burdens, or additional employer responsibility other than what the
Final Economic Analysis already considered for original Sec. 1910.147
(OSHA, 1989).
This revision would respond to the interpretation of the lockout/
tagout of the Occupational Safety and Health Review Commission and the
U.S. Court of Appeals for the Sixth Circuit in Reich v. General Motors
Corp., Delco Chassis Div. (GMC Delco), 17 BNA OSHC 1217 (Nos. 91-2973,
91-3116, 91-3117, 1995); aff'd 89 F.3d 313 (6th Cir. 1996). In that
case, both OSHRC and the Court of Appeals found that a machine with a
multi-step procedure, time delays, and a warning system before
reenergization was not covered by the standard because its
reenergization was not "unexpected." OSHA does not agree with this
decision, and its consistent interpretation of the standard is that
such equipment is covered by the standard. As explained in the summary
and explanation, the phrase "unexpected energization" was intended to
mean any re-energization or startup that was not authorized by the
servicing employee removing her personal lockout/tagout device from the
energy isolation device or equivalent energy control mechanism.
Moreover, to implement the GMC Delco decision, OSHA's directive on the
lockout/tagout standard lists 11 different factors for compliance
officers to use to evaluate and document whether equipment is covered
by the standard or not. This case-by-case analysis creates a degree of
uncertainty about the applicability of the standard for the regulated
community that OSHA did not intend. Though this proposed revision may
change the frequency or number of violations cited and the amount of
fines assessed due to improved employer understanding of the revised
language, these are not material effects that would serve as a basis
for estimating new costs to comply with the standard, and such costs
can be avoided by adherence to the standard, whose costs OSHA has
already estimated.
In addition, removing the word "unexpected" from the text of
Sec. 1910.147 also would harmonize this standard with a recent OSHA
lockout/tagout standard which does not include the term "unexpected."
See OSHA's General Working Conditions in Shipyard Employment standard
at 29 CFR 1915.89.
Chest X-Ray Requirements
Medical surveillance requirements in health standards are designed
primarily to detect the early onset of adverse health effects so that
appropriate interventions can be taken. In certain OSHA standards, the
Agency currently requires periodic chest X-rays (CXRs) as a form of
early lung cancer detection. At the time these standards were
promulgated, routine screening for lung cancer with CXR was considered
appropriate; however, recent studies with many years of follow-up have
not shown a benefit from CXR screening for either lung cancer incidence
or mortality. As a result, OSHA is proposing to remove the requirement
for periodic CXR in the following standards: Sec. 1910.1029--Coke Oven
Emissions, Sec. 1910.1045--Acrylonitrile, and Sec. 1910.1018--
Inorganic Arsenic.
As OSHA has become increasingly aware of the ineffectiveness of CXR
in reducing lung cancer mortality, the Agency has moved to decrease CXR
requirements to eliminate unnecessary radiation to workers as well as
reduce the cost to employers to provide CXR as part of medical
examinations, which it did previously in the first phase of the
Standards Improvement Process (63 FR 33450, June 18, 1998). Not only
does OSHA preliminarily conclude that the removal of this requirement
would result in a cost savings to employers, but the Agency also
believes it would prove to be beneficial to employees by decreasing
their exposure to radiation as well as decreasing the rate of false
positive results. Although OSHA has not attempted to quantify these
benefits in this preliminary analysis, the Agency invites comment from
the public on these issues.
To estimate the annual cost savings to employers if the requirement
for periodic CXRs were removed from the listed standards, OSHA, with
the assistance of Eastern Research Group (ERG), estimated the number of
unnecessary CXRs that would be eliminated by this proposed change by
drawing on estimates of the affected number of workers for each
standard in the Agency's most recent Information Collection Requests
for each affected standard (ERG, 2015). OSHA then analyzed data from
the Centers for Medicare and Medicaid Services' (CMS) Physician Fee
Schedule. Summarizing data from around the United States indicated a
national average price of $68.42 for a CXR (ERG, 2015). Finally, the
Agency multiplied the average price of a CXR by the number of CXRs to
be eliminated, providing an estimate of $245,148 of exam cost savings.
This information is detailed as follows:
Coke Oven Emissions (Sec. 1910.1029):
Reduced Exam Costs: 2,324 exams x $68.42 CXR cost per exam =
$159,008
Acrylonitrile (Sec. 1910.1045):
Reduced Exam Costs: 467 exams x $68.42 CXR cost per exam =
$31,952
Inorganic Arsenic (Sec. 1910.1018):
Reduced Exam Costs: 792 exams x $68.42 CXR cost per exam =
$54,188
Total Reduced Exam Cost:
$159,008+$31,952+$54,188 = $245,148
Reducing the time of the medical exam, by removing the CXR
requirement, would also save employers money because the employee is
away from work for a shorter period of time. Based on information from
RadiologyInfo.org, the Agency conservatively estimates that the time
employees would be away from work is reduced by 15 minutes when the CXR
component of the exam is eliminated (ERG, 2015). OSHA seeks comment on
this time estimate. As indicated, OSHA estimates this change would save
896 hours of worker time that would have been spent during their
recurring exams. Multiplying the reduced exam time by employee hourly
wages of $24.05,\31\ the Agency estimates a cost savings of $21,549 in
employee time. This information is detailed as follows:
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\31\ Wages are based on data from the May 2013 National
Occupational Employment and Wage Estimates for Standard Occupational
Classification Code 51-000--Production Operation, which lists
average base compensation of $16.79. A private industry Fringe
Benefit rate of 30.20 percent was from Source: Bureau of Labor
Statistics. Employer Costs for Employee Compensation--June 2014.
(http://www.bls.gov/news.release/archives/ecec_09102014.htm). The
multiplier applied to base compensation to determine loaded wages is
1.43 [1/(1-30.20 percent)]. Applying the multiplier (1.43) to base
compensation ($16.79) results in loaded wages of $24.05.
Coke Oven Emissions (Sec. 1910.1029):
Time saved: 2,324 exams x .25 hours = 581 hours \32\
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\32\ Numbers rounded to the nearest whole dollar here and
elsewhere in the Preliminary Economic Analysis.
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Reduced Cost: 581 hours x $24.05 employee wage = $13,973
Acrylonitrile (Sec. 1910.1045):
Time saved: 467 exams x .25 hours = 117 hours
Reduced Cost: 117 hours x $24.05 employee wage = $2,814
Inorganic Arsenic (Sec. 1910.1018):
Time saved: 792 exams x .25 hours = 198 hours
Reduced Cost: 198 hours x $24.05 employee wage = $4,762
Total Employee Time Savings from fewer CXRs:
581 hours + 117 hours + 198 hours = 896 hours
Total Value of Time Savings from fewer CXRs:
$13,973 + $2,814 + $4,762 = $21,549
Combining the value of saved worker time of $21,549 with the
decreased exam cost of $245,148 nets a total potential cost savings to
employers of $266,697. OSHA seeks comment on these estimates.
OSHA is also proposing to update other CXR requirements in its Coke
Oven Emissions, Acrylonitrile, and Inorganic Arsenic standards
discussed above, as well as in its three Asbestos standards--Sec.
1910.1001 Asbestos (General Industry), Sec. 1915.1001 Asbestos
(Maritime), and Sec. 1926.1101 Asbestos (Construction)--and two
Cadmium standards--Sec. 1910.1027 Cadmium (General Industry), and
Sec. 1926.1127 Cadmium (Construction).
In recent years, innovation in medical technology has allowed for
screening with digital CXRs. Reflecting this, OSHA is proposing to add
the option of digital radiography to its existing standards. As a
practical matter, digital radiography systems are rapidly replacing
traditional analog film-based systems in medical facilities.
There are cost savings to using digital CXRs over analog CXRs.
Traditional analog film-based CXRs are much larger than standard-sized
office documents and weigh more than a piece of paper of the same size.
As such, storing traditional CXRs requires an investment in specialized
storage cabinets, which in turn may require reinforcement of the floor.
Digital CXRs, however, can be stored on a computer. Due to continuing
advances in technology and the emergence of inexpensive and large-
capacity storage devices, digital CXRs can be stored for just a
fraction of a cent each. Digital CXRs also save time and materials
because they can be instantly processed and ready for use as soon as
the CXR is taken.
OSHA believes that digital storage of CXRs is so common that most
employers are already realizing this cost savings and would thus not
incur any additional savings as a result of this proposal. As a
practical matter, OSHA already allows digital storage of CXRs as a
matter of enforcement discretion. In a letter of interpretation
released on September 24, 2012, entitled "OSHA's position on the
acceptability of digital radiography in place of traditional chest
roentgenograms," OSHA stated: "OSHA would allow, but would not
require, digital radiography in place of traditional chest
roentgenograms for medical surveillance exams under the Asbestos
Standards for general industry, construction, and shipyards." Although
OSHA has not released interpretations specifically allowing for digital
storage of CXRs in other standards, it has become the Agency's practice
not to cite or otherwise penalize employers for storing CXRs digitally.
Because it is now current OSHA enforcement practice to waive the formal
requirement for employers to keep analog copies of CXRs when they store
them digitally, the Agency preliminarily concludes that there would be
no realized cost savings by changing this requirement. This proposed
change simply formalizes and thereby clarifies what the Agency has
already accommodated in practice.
Revisions in these standards also include replacements of
antiquated terminology such as "roentgenogram," correction of
misspellings in the existing standards, an update to the current ILO
classification guidance, and revisions where inaccuracies exist in
clinical diagnostic language. OSHA is proposing to update the
regulatory text to better distinguish between the appropriate uses of
classification and interpretation of CXRs. The Agency believes these
changes are merely editorial in nature and reflect current practices,
and therefore would not create new costs or cost savings for employers.
Cotton Dust--Pulmonary Function Testing
As explained in greater detail in the Summary and Explanation, OSHA
is proposing to make revisions to its medical surveillance program
requirements--more specifically, its pulmonary function testing
requirements of the Cotton Dust standard (29 CFR 1910.1043). Exposure
to cotton dust places employees at risk of developing the respiratory
disease byssinosis. Since the publication of the Cotton Dust standard
in 1978, OSHA has not updated its pulmonary function testing
requirements to match those of current technology and practices. As a
result, OSHA is basing its proposed revisions on current
recommendations from organizations recognized as authorities on
generally accepted practices in pulmonary-function testing: The
American Thoracic Society/European Respiratory Society (ATS/ERS), the
National Institute for Occupational Safety and Health (NIOSH), and the
American College of Occupational and Environmental Medicine (ACOEM).
OSHA is proposing to revise paragraph (h) and Appendix D of its
Cotton Dust standard. Many of the revisions are simply editorial, to
clarify existing language, as well as to update outdated pulmonary
function measurements. However, for those revisions that may suggest a
potential need to upgrade pulmonary testing equipment, OSHA
investigated the characteristics of equipment currently available in
the United States and whether such equipment met the specifications of
OSHA's proposed revisions.
Paragraphs 1043(h)(2)(iii) and (h)(3)(ii)(A) and (B) give
instructions for pulmonary function testing, measuring forced vital
capacity (FVC) and forced expiratory volume in one second (FEV1)
against the Spirometry Prediction Tables for Normal Males and Females
(Appendix C), adjusting those measurements based on ethnicity, and from
the outcome of such measurements, determining the frequency of medical
surveillance provided to employees. OSHA is proposing to revise this
provision to specify use of the National Health and Nutrition
Examination Survey (NHANES) III reference data set and to replace the
values currently in Appendix C with the NHANES III values.
Software for most spirometers includes the NHANES III data set,
which is identified as the Hankinson data set on some spirometers. If
software for older spirometers does not include the NHANES III data
set, users of those spirometers would be able to access the NHANES III
values online through the NIOSH calculator. Tables of the NHANES III
values are also available in an appendix of OSHA's spirometry guidance
for healthcare professionals that is also available online. Therefore,
NHANES III values are widely available to spirometry providers,
including those providers using older spirometers.
OSHA's proposal to use the NHANES III data set in place of the
Knudson values currently in Appendix C would simplify interpretation of
spirometry results by providing reference values for more race/ethnic
groups, thereby reducing the need to adjust values for race/ethnic
groups not included in the Knudson data set. This revision as to how
pulmonary functioning should be tested and measured falls in line with
current generally accepted practices; therefore OSHA does not believe
this proposed revision should pose a compliance burden to affected
employers.
OSHA is also proposing to update paragraph (h)(2)(iii) to require
an evaluation of FEV1, FVC, and FEV1/FVC against the lower limit of
normal (LLN) for each race/ethnic group, by age. Similarly, OSHA is
proposing that the basis for frequency of medical surveillance in
paragraphs (h)(3)(ii)(A) and (B) be whether the FEV1 is above or below
the LLN. This would technically change the required triggers for
medical surveillance from the existing standard, but is consistent with
generally accepted current practices. The Agency believes the changes
would reduce confusion and have little other practical effect. The
proposed revision to evaluate the FEV1/FVC ratio in addition to FEV1
and FVC would not affect the triggers for other medical monitoring
requirements such as changes in medical-surveillance frequency or
referral for a detailed pulmonary examination because the standard
bases those triggers solely on FEV1 values.
Proposed revisions to Appendix D address updates to the
specifications of spirometry equipment used in performing pulmonary
functioning tests. To assess whether current readily available
spirometry equipment met the Agency's proposed specifications, OSHA
investigated the market for spirometry equipment, with the assistance
of its contractor, Eastern Research Group (ERG). OSHA found that the
market has been adapting to similar consensus standards in this area as
far back as 1994. In its research of spirometry product specifications
collected through internet searches, interviews with manufacturers, and
the consultation of peer-reviewed literature and voluntary standards
published by respiratory health groups, the Agency found that
spirometry models currently sold in the United States, Europe and
Australia meet the potential specification revisions of spirometry
equipment to be used in the cotton dust standard. More specifically,
ERG looked at a sample of 12 spirometry models from various
manufacturers and found that 11 out of the 12 models were already
complaint with the volume, accuracy, and minimum duration requirements
of the 2005 spirometry specification standard jointly published by ATS/
ERS (ERG, 2015).
The Agency estimates that this spirometry equipment has a working
life of approximately ten years. To prevent a potential burden to
employers from having to prematurely purchase new equipment, OSHA is
proposing that the revised spirometry specifications apply only to
equipment newly purchased one year or more after OSHA publishes the
final standard in the Federal Register. Combined with evidence that the
large majority of the equipment already on the market is already
compliant, OSHA does not believe that the proposed revisions to the
spirometry equipment specifications would impose additional costs or
compliance burdens to employers. OSHA welcomes comment on the possible
impacts of these requirements.
Shipyard Employment: Feral Cats
As stated in the Summary and Explanation, OSHA is proposing to
remove feral cats from its definition of vermin in paragraph (b)(33) of
Sec. 1915.80--Subpart F--Shipyard General Working Conditions. 29 CFR
1915.88--Sanitation, paragraphs (j)(1) and (j)(2), specify that
employers must, to the extent reasonably practicable, clean and
maintain workplaces in a manner that prevents vermin infestation. When
employers detect vermin, they must implement and maintain an effective
vermin-control program.
OSHA has determined that, although the possibility exists for feral
cats to pose safety and health hazards for employees, the threat is
minor as the cats tend to avoid human contact. Further, stakeholders
have expressed concern that including the term "feral cats" in the
definition of vermin encourages cruel and unnecessary extermination.
OSHA does not believe that removing the term "feral cats" from the
definition would reduce worker health and safety, and notes that feral
cats may help reduce the presence of other vermin. To the extent feral
cats pose a safety or health hazard at any particular shipyard, OSHA
would consider the cats to be "other animals" under the standard.
Removing a perceived obligation to exterminate feral cats should not
have any costs to employers.
911 Emergency Medical Services
OSHA is proposing to revise paragraph (f) in 29 CFR 1926.50--
Medical Services and First Aid. Existing Sec. 1926.50(e) requires
employers to provide a communication system for contacting ambulance
service, or proper equipment for transportation of an injured person.
Existing Sec. 1926.50(f) requires the posting of telephone numbers of
physicians, hospitals, or ambulances for work sites located in areas
where 911 emergency service is not available. OSHA is proposing to
retain both of these this requirements. The Agency would add to
paragraph (f) a requirement that when an employer uses a communication
system for contacting 911 services, the employer must ensure that the
communication system can effectively do so, and, if the system is in an
area that does not automatically supply the caller's latitude and
longitude to the 911 dispatcher, post or otherwise provide to employees
the latitude and longitude of the work site or other information that
communicates the location of the worksite.
OSHA has preliminarily concluded that this proposed requirement
would result in annual costs of $27,899 until 2019, when the FCC
expects enhanced 911 wireless services to be universal, at which time
these costs would disappear.
OSHA calculated the burden hours and wage hour costs for employers
to post the latitude and longitude of the work site location based on
the number of new construction projects started in a given year. To
estimate the number of project sites, OSHA reviewed the most recent
data provided by request from Dodge Data and Analytics.\33\ The Dodge
data show a total of 660,469 new construction projects starts in 2012
of which 537,997 were residential buildings, 58,754 were non-
residential buildings, and 63,718 were non-buildings. Of the 537,997
residential buildings, 516,363 were single-family homes, 7,388 were
two-family houses, and 14,246 were apartments.\34\
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\33\ For the purpose of this section, in conformance with
previous ICRs on this provision, OSHA deems the Dodge data to be the
best source of information for new construction projects. This
stands in contrast to U.S. Census construction data used later in
the PEA in the context of Load Limit Posting provision because OSHA
is interested in all construction projects started, but not
necessarily completed, in a given year. While Census construction
data provides lists more detailed information on residential housing
starts and completions, and total value of construction put in
place, it does not provide information on the total number of
construction projects started in a given year.
\34\ Dodge defines single-family homes as single-family
detached, stand-alone units. Single-family attached structures,
including such buildings as condominiums and townhomes, are included
in Dodge's multi-family category.
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OSHA notes that more than one single-family home may be built at a
project site. The Agency determined that construction contractors build
approximately one-half of single-family houses at single house project
sites and the other half at project sites holding multiple single-
family homes. As a result, OSHA estimated the number of single-family
homes completed at single house project sites in 2012 to be 258,182,
and 129,091 to be the total of project sites holding two single family-
homes (one-half of single-family houses at single project sites:
516,363/2 = 258,182; one-half of single-family homes at project sites holding two
houses: 258,182/2 = 129,091).
As shown below in Table IV-1, the total number of construction
project sites covered by this provision is: 531,379.
Table IV-1--Estimated Total Construction Sites in the United States,
2012
------------------------------------------------------------------------
Total number
of
Type of construction site construction
projects
------------------------------------------------------------------------
Non-Residential Buildings............................... 58,754
Non-Buildings Construction Projects..................... 63,718
Residential Buildings................................... 408,907
One Single-Family Home Per Site......................... 258,182
Multiple Single-Family Homes Per Site................... 129,091
Multi-Family Residential Buildings...................... 21,634
Two-Family Houses....................................... 7,388
Apartments.............................................. 14,246
---------------
Total Construction Sites.............................. 531,379
------------------------------------------------------------------------
In the United States, when a 9-1-1 call is made from a traditional
telephone or wireline, the call is routed to a Public Safety Answering
Point (PSAP) that is responsible for assisting people in a particular
geographic area or community. Depending on the type of 9-1-1 service
available, the telephone number of the caller and the location or
address of the emergency is either communicated by the caller to the
emergency dispatcher (Basic 9-1-1); or automatically displayed to the
dispatcher through the use of equipment and database information
(Enhanced 9-1-1). According to a 2001 report produced by the RCN
Commission and the National Emergency Number Association (NENA) titled,
Report Card to the Nation: The Effectiveness, Accessibility and Future
of America's 9-1-1 Service,\35\ wireline 9-1-1 coverage is available to
97.8 percent of the U.S. population; however only 93 percent of all
U.S. counties have either Basic or Enhanced wireline 9-1-1 coverage
while 7 percent of U.S. counties are without any 9-1-1 services. NENA
reported that these areas without any wireline 9-1-1 coverage are
primarily rural in character with sparse population and generally high
poverty levels; as well as inclusive of Native American lands and
military installations (NENA, 2001).
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\35\ Report Card to the Nation (RCN)--An RCN Commission was
formed by the National Emergency Number Association (NENA) to review
and grade the performance of 9-1-1. NENA serves its members and the
greater public safety community as the only professional
organization solely focused on 9-1-1 policy, technology, operations,
and education issues.
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In the December 5, 2014 version of the Federal Communications
Commission's (FCC) 911 Wireless Service Guide, it was estimated that
about 70 percent of 9-1-1 calls were placed from wireless phones (FCC,
2014). The FCC finds using wireless phones create unique challenges for
emergency response personnel because wireless or mobile phones are not
associated with one fixed location or address. Although the location of
the cell site closest to the 9-1-1 caller may provide a general
indication of the caller's location, the FCC finds that the information
is not always specific enough for rescue personnel to deliver
assistance to the caller quickly (FCC, 2014). As a result, the FCC is
now requiring wireless service carriers to implement its wireless
Enhanced 9-1-1 program which will provide 9-1-1 dispatchers with
additional information on wireless 9-1-1 calls. The FCC is allowing the
implementation of its wireless Enhanced 9-1-1 program in two parts--
Phase I and Phase II. Phase I requires carriers to provide the PSAP
with the telephone number of the 9-1-1 wireless caller as well as the
location of the cell site or base station transmitting the call. Phase
II however, requires carriers to provide more precise information to
the PSAP, such as the latitude and longitude of the caller whereby the
accuracy of the geographical coordinates must be within 50 to 300
meters of the caller's location (FCC, 2014).
With the implementation of the wireless Enhanced 9-1-1 program, the
total number of U.S. counties with 9-1-1 coverage has increased from 93
percent to nearly 97 percent. As of March 2015, NENA reported a total
number of 3,135 U.S. counties, which include parishes, independent
cities, boroughs and Census areas. Of these counties, 96.9 percent
(3,038) of them are now capable of receiving some \36\ Phase I location
information and 95.7 percent (3,000) are capable of receiving some
Phase II. All wireless carriers, however, are expected to comply with
Phase II of the FCCs requirements by 2019.\37\
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\36\ The term `some," as defined by the National Emergency
Number Association, means that some or all wireless carriers have
implemented either Phase I or Phase II service in the County or the
PSAPs. In order for any carrier to provide service, the County or
PSAP must be capable of receiving the service. In most cases, all
carriers are implemented in a County or PSAP, but one or more may be
in the process of completing the implementation. See http://www.nena.org/?page=911Statistics.
\37\ See 47 CFR 20.18--911 Service
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Since all 9-1-1 emergency calls made are routed to a PSAP or call
center based on the geographic location in which the call was made, for
the purpose of this analysis, OSHA is interested in those U.S. counties
where Enhanced 9-1-1 is neither available by wireline nor wireless
device. Using the data provided by NENA, OSHA estimates that of the
3,135 recorded U.S. counties, 4.3 percent (135) neither have wireline
nor wireless Enhanced 9-1-1 capabilities. By extension, for this
analysis, OSHA further assumes that 4.3 percent of all construction
project sites (22,849 of 531,379 construction project sites) are
located within those counties without wireline and wireless Enhanced 9-
1-1 capabilities and would therefore be covered by this provision
whereby employers must either post the latitude and longitude of the
work site or other location-identification information that effectively
communicates the location of the work site to the 9-1-1 emergency
medical service dispatcher. The Agency believes this is likely an
overestimate of the number of construction sites affected by this
provision of the proposal, as construction activity will generally
parallel population concentration. Enhanced cell service, in turn, is
more concentrated around population centers. NENA estimates that 98.4
percent of the population now has Phase II wireless service; 98.1
percent of PSAPs have Phase II service. The Agency, however, requests
comment on this aspect of analysis, as well as the distribution of
wireline and wireless service at construction sites.
OSHA estimates that it takes the average construction employee
affected by this requirement 3 minutes (.05 hour) to obtain the
latitude and longitude of worksite locations, write the information on
material, and then to prominently post the information, as required by
proposed Sec. 1926.50(f). This would not pose an issue of
technological feasibility as the information could be easily downloaded
from the Internet before the crew leaves for the site; in the large
majority of cases this information should be also be available onsite
via common applications for smartphones. The Bureau of Labor
Statistics' (BLS) 2013 Occupational Employment Statistics (OES) data
indicate that the most common construction occupation is "construction
laborer." Partly for that reason, the Agency believes this occupation
is most representative of the workers actually posting the latitude and
longitude load requirements at construction project sites. Consistent
with that, OSHA, based on the OES data, estimates a wage of $16.84 per
hour for the average affected construction worker (BLS, 2013a). BLS also
estimates in their 2013 Employer Cost for Employee Compensation report
that employers pay an additional 45 percent in employee benefits,
\38\ implying a total employer cost for employee compensation of $24.42 per hour.
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\38\ BLS, 2013b. Employer costs for employee benefits (other
than wage and salary) were estimated to be 31 percent of total
compensation for workers employed in construction. The fringe
benefit factor is calculated by 1/(1--percent of total compensation
attributable to employee benefits, or 1/(1-.3) = 1.45. Total
employer cost for employee compensation is calculated by multiplying
the base wages ($16.84) by the fringe benefits factor (1.45).
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Therefore, the estimated annual burden hours and wage hour cost of
this proposed requirement are:
Burden hours: 22,849 construction project sites x .05 hour =
1,142.45 hours.
Cost: 1,142.45 hours x $24.42 = $27,899.
Based on these costs, OSHA preliminary determines that the proposed
provision is economically feasible. OSHA notes that a member of ACCSH
stated that he had seen a firm provide location information at remote
sites. (ACCSH Aug. 23, 2013 transcript, p. 85.) As noted previously,
the task of communicating relevant site information to rescue services
is gradually being made easier by the spread of advanced
telecommunications technology, such that in the near future the
existing burden should be eliminated. However, OSHA seeks comments on
this estimate and how long the costs will remain in effect.
Permissible Exposure Limits Table
As discussed in the Summary and Explanation, 29 CFR 1926.55--Gases,
Vapors, Fumes, Dusts, and Mists--is the Construction counterpart to 29
CFR 1910.1000--Air Contaminants, which enumerates hundreds of
Permissible Exposure Limits (PELs) in its Z tables. Because 29 CFR
1926.55 is not as clear as its General Industry counterpart, OSHA is
proposing to update section 1926.55(a) and Appendix A to help clarify
the construction PELs. These proposed changes would: (1) Change the
term "Threshold Limit Values" to "Permissible Exposure Limits"; (2)
eliminate language that sounds advisory; (3) eliminate confusing
language; (4) correct several noted errors in Appendix A; and (5)
correct cross-references to the asbestos standard. OSHA deems these
changes to be simple clarifications which would not change the
substantive effect this rule. Therefore, OSHA has preliminarily
concluded that these revisions would not result in changes to the cost
or impact of 29 CFR 1926.55; however, OSHA seeks comment on this
preliminary conclusion.
Process Safety Management of Highly Hazardous Chemicals
OSHA is proposing to replace the regulatory text of its Process
Safety Management (PSM) of Highly Hazardous Chemicals construction
regulation, Sec. 1926.64, with a cross-reference to the corresponding
general industry regulation in 29 CFR 1910.119. The requirements
applicable to construction work in 29 CFR 1926.64 are identical to
those set forth in 29 CFR 1910.119. This change would only serve to
eliminate duplicative regulatory text and as such, OSHA has
preliminarily determined that it has no cost.
Personal Protective Equipment Fit
OSHA is proposing to amend Section Sec. 1926.95--Criteria for
Personal Protective Equipment (PPE), paragraph (c), to clarify that PPE
must properly fit each employee. The existing regulatory text states
that PPE "shall be of safe design and construction for the work to be
performed" and current paragraph (a) states that PPE "shall be
provided, used, and maintained in a sanitary and reliable condition
wherever it is necessary...." It is the agency's opinion that for
PPE to provide protection against the hazards for which it is designed,
it must fit properly. OSHA views this change as a clarification of the
existing language and thus preliminarily determines that it would not
increase costs or compliance burdens to employers.
Lanyard/Lifeline Break Strength
OSHA is proposing to lower the minimum breaking strength
requirement in Sec. 1926.104--Safety Belts, Lifelines and Lanyards,
paragraph (c)--from 5,400 pounds to 5,000 pounds. As discussed in the
Summary and Explanation of that section, the Agency believes a 5,000
pound requirement would still provide a more than sufficient safety
factor. Because this change lowers the minimum requirement, employers
would not be required to purchase new equipment. When employers do
replace their equipment, they could continue to purchase lifelines with
a breaking strength of 5,400 pounds, or with a breaking strength of
5,000 pound. This proposed revision also would bring Sec. 104(c) into
conformance with the lanyard and lifeline breaking strength requirement
in the Fall Protection standard, at Sec. 1926.502(d)(9). As a result,
OSHA has preliminarily concluded that this change would not add any new
compliance costs for employers.
Manual on Uniform Traffic Control Devices
Under 29 CFR part 1926 subpart G--Signs, Signals, and Barricades,
OSHA requires that employers comply with the mandatory provisions of
Part VI of the Manual on Uniform Traffic Control Devices (MUTCD).
Currently, employers comply with Part VI when they use one of two
versions of MUCTD: the 1988 Edition, Revision 3, September 3, 1993
MUTCD ("1988 Edition") or the Millennium Edition, December 2000 MUTCD
("Millennium Edition"). Since OSHA's last published update to subpart
G, requiring employers to follow one of the two MUTCD editions above,
the Department of Transportation (DOT) has then updated 23 CFR 655.601
through 655.603 to require adherence to the 2009 Edition, November 4,
2009, MUTCD ("2009 Edition"). The Agency is proposing to update
subpart G to require employers to follow the MUTCD 2009 Edition.
23 CFR 655.603 states that the MUTCD is the national standard for
all traffic control devices installed on any street, highway, or
bicycle trail open to public travel. It also requires all States,
within two years after a new national MUTCD edition is issued or any
national MUTCD amendments are made, to adopt the new MUTCD in the
State, adopt the national MUTCD with a State Supplement that is in
substantial conformance with the new MUTCD, or adopt a State MUTCD that
is in substantial conformance with the new MUTCD.
Each State enacts its own laws regarding compliance with standards
for traffic control devices in that State. If the State law has adopted
a State Supplement or a State MUTCD that the Federal Highway
Administration (FHWA) has found to be in substantial conformance with
the national MUTCD, then those State requirements are what the local
road agencies (as well as the State DOT) must abide by. The exception
is traffic control devices installed on a federally aided project, in
which case 23 CFR 655.603(d)(2) specifically requires those devices to
comply with the national MUTCD before the road can be opened or
reopened to the public for unrestricted use.
The Agency believes any employer costs related to incorporating the
updated MUCTD reference into subpart G are very limited because, first,
the updated DOT rules are already currently in force for all public
roads. Second, even in the limited circumstances of construction on
private roads, the MUCTD rules are already likely followed. Finally,
the changes from the prior editions are minor and could easily
be outweighed by eliminating the burden created by having
conflicting DOT and OSHA requirements.
Private roads open to public travel are now subject to the same
traffic control standards as public streets and highways. However, the
FHWA does not require State and/or local highway agencies to have
specific authority or enforcement responsibility for traffic control
devices on private roads to ensure compliance with the MUTCD. Owners or
parties responsible for such private roads are encouraged to bring the
traffic control devices into compliance with the MUTCD and other
applicable State Manuals, and those who do not may find themselves
exposed to increased tort liability. State and local jurisdictions can
encourage MUTCD compliance on private roads by incorporating pertinent
language into zoning requirements, building and occupancy permits, and
similar controls that they exercise over private properties.
As a practical matter, available data on private road construction
indicate that it represents a very small portion of total road
construction activity. Data from the Census Construction Spending
Survey indicate that it represents less than 1 percent of all funds
dedicated to highway and street construction (Census, 2014).\39\ This
leaves a very limited scope of construction signage not already
governed by the updated DOT rules.
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\39\ Since private spending on Highway and Street construction
is relatively small in comparison to other categories of spending,
it does not appear as a separate item, but can be derived from
subtracting Total Public Construction spending on Highway and Street
construction from Total Construction spending on Highway and Street
construction. 2013 data indicates private spending was well below 1
percent of total spending in this category. This pattern was
consistent at least as far back as 2002.
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Since all contractors engaged in construction of public roads are
now required to follow the current MUTCD, only those firms that work
exclusively on private roads would incur costs associated with this
proposal. Contractors that work on both public and private roads should
not see an increased burden because they would already need to be in
compliance with the MUTCD to work on public roads. Considering that
there is pressure, both from a regulatory and liability perspective,
for firms that work exclusively on private roads to follow the MUTCD,
OSHA believes the total number of these firms potentially incurring
costs as a result of this proposal would be very small. To better
understand how often these situations occur, OSHA seeks comment on the
number of contractors that work exclusively on private roads and are
therefore not required to follow the MUTCD. To the extent that
situation occurs, the Agency also seeks comment on the extent to which
such contractors already follow the updated MUTCD.
For any firms not already complying with the updated MUTCD, the
cost of compliance would be very limited. As explained in the Summary
and Explanation, the revisions to the MUTCD make the document more user
friendly and account for advances in technology. A comparison of the
1998 and 2009 updates shows fewer and less burdensome new requirements,
but more guidance and support material which makes the document easier
to use. This proposed change to the OSHA rule should decrease the
burden on employers by eliminating confusion as to which edition they
must comply with. It would also inform employers that compliance with
DOT regulations would not run afoul of outdated OSHA regulations. Most
of the new provisions provide more options to employers, which should
either increase safety or reduce the burden to employers.
Nonetheless, the Agency has identified two proposed changes in the
2009 Edition that could have a very small cost for those employers
doing construction work exclusively on private roads that are not
already following the updated MUTCD for these items.
One change is a requirement to use a new symbol and additional sign
for a shoulder drop-off. OSHA has estimated that the average price of a
shoulder drop-off sign at $32.74, depending on size and finish. A
second change prohibits contractors from relying on hand-signs alone to
control traffic. This burden would only apply to a subset of
contractors that use flaggers to control traffic (as opposed to
something like automated flagger assistance device) and choose to only
use hand signals to accomplish this task. Each of these contractors
would need to purchase at least one stop sign or flag. OSHA has
determined that a flag would cost, on average, $7.96 each, dependent on
size (ERG, 2015).
The number of signs or flags a contractor needs for these
situations would presumably be dependent on the number of simultaneous
projects that the road construction firm engages in during a typical
season, or how large and complex such projects are. While smaller
contractors may be more likely to engage solely in private road
operations, larger, more complex projects demanding more equipment
would almost certainly fall to larger contractors also employed in
public road construction. Considering the very limited number of
contractors and situations that would likely be impacted by this
proposal, the Agency believes that most of the potentially affected
firms would not need more than a handful of either signs or flags. The
Agency seeks comment on what the likely impact of these changes would
be, both in terms of the number of signs and/or flags potentially
affected contractors might need, as well as whether other changes to
MUCTD might have a cost associated with them, or ultimately whether the
clarity provided by a government-wide reference to a single set of
standards may provide a cost savings to employers.
It is not clear whether any firm would incur new costs as a result
of this this proposed update to the 2009 Edition, but as shown, any
such costs would be very limited in nature and would be an
insignificant portion of a contractor's annual profit. OSHA therefore
does not believe these changes would have a significant impact to any
firm or raise an issue of economic feasibility. The Agency, however,
welcomes comment on this preliminary assessment.
Load Limit Postings
OSHA is proposing to remove the load limit posting requirement for
single family dwellings or townhouses in 29 CFR 1926.250--General
Requirements for Storage, paragraph (a)(2). OSHA has preliminarily
estimated that removing the requirement for employers to post maximum
safe load limits of floors in storage areas when constructing single
family dwellings or townhouses would result in a cost savings to
employers engaged in these construction activities of approximately
$2,948,715.
OSHA estimates that it takes the average construction employee
affected by this requirement 15 minutes (0.25 hours) to develop and
post the currently required signs, assuming the information is readily
available from current engineering estimates. The Bureau of Labor
Statistics' (BLS) 2013 Occupational Employment Statistics (OES) data
indicate that the most common construction occupation is "construction
laborer." Partly for that reason, the Agency believes this occupation
is most representative of the workers actually posting the load limit
requirement at such dwellings. Consistent with that, OSHA, based on the
OES data, estimates a wage of $16.84 per hour for the average
affected construction worker (BLS, 2013a). BLS also estimates
in their 2013 Employer Cost for Employee Compensation report
that employers pay an additional 45 percent in employee benefits,
\40\ implying a total employer cost for employee compensation
of $24.42 per hour. According to the U.S. Census, in 2012 there were
483,000 single family houses constructed, including townhouses (Census,
2012).\41\ OSHA estimates, that on average, each project would have one
storage area, producing one required posting. Using this data, OSHA
preliminarily estimates that the yearly burden on employers affected by
this proposed revision would be reduced by $6.105 ($24.42/hour x 0.25
hours) for a total cost savings of $2,948,715 ($6.105 cost per posting
x 483,000 single family homes) to the industry. Therefore, the
estimated reduction in burden hours and wage hour costs of this
proposed requirement are:
---------------------------------------------------------------------------
\40\ BLS, 2013b. Employer costs for employee benefits (other
than wage and salary) were estimated to be 31 percent of total
compensation for workers employed in construction. The fringe
benefit factor is calculated by 1/(1--percent of total compensation
attributable to employee benefits, or 1/(1 - .3) = 1.45. Total
employer cost for employee compensation is calculated by multiplying
the base wages ($16.84) by the fringe benefits factor (1.45).
\41\ In the 911 Emergency Medical Services section of PEA
presented earlier, the Agency examined total construction starts,
which were estimated using Dodge data. Included within that total
were new home starts. However, as has historically been the case
when examining the paperwork burden for 29 CFR 1926.250, the Agency
is using U.S. Census data rather than the Dodge report. The Dodge
report does not include data on townhomes separate from
condominiums; townhomes and condominiums are both grouped together
in the Dodge report's multifamily category. For the purposes of
analyzing the change to this provision, OSHA needs to be able to
separate condominiums from townhomes; the U.S. Census' definition of
a single family homes identically matches the new home constructions
that the Agency needs to measure. Therefore, OSHA believes the data
provided from the U.S. Census is the best available for analyzing
the proposed update to 29 CFR 1926.250(a)(2).
---------------------------------------------------------------------------
Reduced burden hours: 483,000 houses x .25 hours = 120,750 hours.
Reduced cost: 120,750 hours x $24.42 = $2,948,715.
Excavation Hazards
In 1989, OSHA updated Sec. 1926.651(j)--Specific Excavation
Requirements--Protection of Employees from Loose Rock or Soil, to add
the phrase "that could pose a hazard" when referring to loose rock or
soil and excavated or other materials or equipment. A number of
Administrative Law Judges of the Occupational Safety and Health Review
Commission (OSHRC) later ruled that the added phrase in the standard
shifts the burden of determining whether loose rock or soil and
excavated or other material or equipment poses a hazard to employees to
OSHA, before OSHA can establish a violation. These rulings are
inconsistent with what OSHA intended, as the preamble to the 1989
revision does not indicate that OSHA intended to shift the burden when
it revised the 1971 provisions, but rather intended to clarify the
language of the provisions. Thus, the Agency is proposing to remove the
phrase "that could pose a hazard" from Sec. 1926.651(j)(1) and
(j)(2).
OSHA believes that this revision would clarify its original intent
that the burden is on employers to protect their employees from loose
rock or soil and excavated or other materials or equipment, and that
OSHA does not have the initial burden of demonstrating the existence of
a hazard. Consistent with the Agency's intent, no estimated costs or
cost savings were attributed to this additional language in the 1989
update to the original 1971 rule (54 FR 45894). Hence, OSHA has
preliminarily determined that no cost or compliance burdens would be
associated with the proposed removal of this language.
Decompression Tables
OSHA is proposing to replace the current decompression tables found
in Appendix A to subpart S of part 1926--Underground Construction,
Caissons, Cofferdams and Compressed Air--with the 1992 French Air and
Oxygen decompression tables, which are an updated industry standard,
and are therefore preferred over the Agency's existing tables. The
information available to the Agency currently indicates that
underground projects which incorporate new tunneling technology have
not followed OSHA's existing decompression tables, but instead, have
followed the French or other updated tables. In each case, federal OSHA
or a state plan state had been persuaded by the available research and
studies that the new decompression methods provide better protection
for underground workers and has issued a variance.
Since underground tunneling projects currently already use these
proposed tables, OSHA has preliminary determined that the replacement
of its existing Decompression Tables in Appendix A to subpart S of part
1926 with the French tables would not result in an increase of cost to
affected employers. OSHA seeks comment regarding any establishment that
does not currently use the French tables and/or uses any other updated
tables. This should provide some relief for employers who currently
wish to use the newer tables, in that they would no longer need to
apply for a variance from the Agency. The Agency however, has not
quantified a cost savings associated with this reduced burden to
employers.
Rollover Protective Structures
OSHA is proposing to amend the existing standards in 29 CFR part
1926 subpart W--Rollover Protective Structures; Overhead Protection
(Sec. 1926.1001, 1002, and 1003). The existing standards, which are
based on consensus standards from 1970, will be amended to remove the
provisions that specify test procedures and performance requirements.
The revised provisions will reference the 1970 consensus standards for
equipment manufactured prior to the effective date of the final rule.
They will also reference the most recent ISO standards: ISO 3471-2008,
ISO 5700-2013 and ISO 3449-2005, for new equipment manufactured after
the effective date of the final rule. It is OSHA's understanding that
all industries affected by this change are already following the new
ISO standards, and therefore has preliminarily concluded that this
change would not create any new costs for employers. However, OSHA
seeks comments on this conclusion and on current adherence to the ISO
standards in the affected industries.
The Agency also proposes to expand the existing regulatory language
of Sec. 1926.1000 and 1001 to cover compactors and skid-steer loaders,
as telegraphed previously by reserving existing paragraph 1000(a)(2).
OSHA believes that this new equipment, as with the equipment currently
covered by the existing standard, already adheres to the minimum
performance criteria for ROPS as set forth in the recent ISO standards,
but seeks further comment. If OSHA is correct about the current
compliance for this new equipment, then OSHA preliminarily concludes
that this change would not add any new compliance cost to employers.
OSHA seeks comments on this issue as well.
Underground Construction--Diesel Engine
Existing regulatory language in Sec. 1926.800(k)(10)(ii) requires
that mobile diesel-powered equipment used underground comply with the
Mine Safety Health Administration's (MSHA) provisions of 30 CFR part
32. In 1996, MSHA revoked part 32 and replaced it with updated
provisions in 30 CFR part 7, subpart E and 30 CFR 75.1909 Non-
permissible diesel-powered equipment; design and performance
requirements, 75.1910 Non-permissible diesel-powered equipment;
electrical system design and performance requirements, and 75.1911
Fire suppression systems for diesel-powered equipment and fuel
transportation units (61 FR 55411). In 2001, MSHA issued 30
CFR 57.5067 to allow engines that meet Environmental Protection
Administration (EPA) requirements to be used as an alternative
to seeking MSHA approval under part 7, subpart E (66 FR 5706).
The Agency proposes to update the regulatory language in Sec.
1926.800(k)(10)(ii) to cross-reference these updated provisions.
If adopted, these changes will allow employers who use diesel-
powered engines on mobile equipment in underground construction to use
current MSHA procedures to obtain approval plates to affix to the
engines or meet or exceed the applicable EPA requirements listed at
MSHA Table 57.5067-1, and meet the requirements for other machine
features in 30 CFR 75.1909, 75.1910, and 75.1911(a)-(i) for non-
permissible diesel-powered engines. Based on available information,
OSHA has determined that currently manufactured equipment meets the
proposed requirements and are generally compliant with the more
stringent EPA Tier 3 and Tier 4 emission requirements (ERG, 2015). The
Agency has therefore preliminarily concluded that all applicable new
equipment currently available for in the market meets the proposed
requirements.
OSHA recognizes that there may be some employers using equipment
that predates the newer MSHA standards, and the EPA requirements
referenced in them. To avoid the costs of replacing existing equipment
in use, the Agency proposes to allow equipment purchased before the
effective date of the final rule to continue to comply with the terms
of existing Sec. 1926.800(k)(10)(ii) (including having been approved
by MSHA under 30 CFR part 32 (1995) or be determined to be equivalent
to such MSHA-approved equipment). OSHA solicits comment on the number
of engines in use that meet the existing standard but will not meet the
requirements of the new MSHA standard and whether continued use of such
equipment presents a serious safety or health hazard. OSHA also seeks
comment on whether this proposed grandfathering is workable.
The Agency observes that some parts of the updated MSHA regulations
have additional requirements, such as the potential need for training
on fire suppression systems. However, as discussed in the Summary and
Explanation, OSHA proposes to carry over the reference to only
equipment requirements in the MSHA standards. Therefore, as explained,
these other elements of the MSHA standards would not apply here and
would therefore carry no cost.
In summary, because diesel equipment manufactured for underground
construction apparently conforms with the newer MSHA standards, and the
proposal would "grandfather" in existing equipment, the Agency
believes employers will not have additional expenses in complying with
the this proposed change to the Underground Construction standard. OSHA
welcomes comments on this preliminary conclusion.
Coke Oven Emissions
Section 1926.1129 regulates exposure to coke oven emissions in
construction. In the Summary and Explanation, the point was made that
the provisions of this standard do not fit construction work. Therefore
OSHA is proposing to delete 29 CFR 1926.1129 (and the reference to it
in 29 CFR 1926.55).
An interpretation letter to Mr. Katz from Assistant Secretary
Charles Jeffress on June 22, 1999 stated, "We will remove 29 CFR
1926.1129 from OSHA's Internet Web site; the standard will be deleted
from Part 1926 Code of Federal Regulations, and we [OSHA] will formally
notify OSHA field offices that Sec. 1926.1129 is not to be enforced."
Since OSHA is not enforcing Sec. 1926.1129 and it has no applicability
to construction, this change will have no cost.
Removal of Social Security Number Collection Requirements From OSHA's
Standards
As discussed in the Summary and Explanation, OSHA is proposing to
delete the requirements in its standards for employers to use social
security numbers to identify employees on exposure monitoring, medical
surveillance, and other records. The Agency believes that while this
change will help employers to protect their employees from identity
theft, it will not impose new costs upon employers. The proposed
changes would not require employers to delete social security numbers
from existing records, nor would they prohibit employers from
continuing to use them to identify employees; employers would simply no
longer be required to include employee social security numbers on the
records. The Agency believes that these changes have the potential to
provide benefits to both employees and employers and potential cost
savings, but OSHA has not quantified those potential benefits and
savings for this preliminary analysis.
C. Summary
OSHA preliminarily concludes that the proposed provisions do not
impose costs of any significance on any employer, and therefore
concludes that the proposed rule is economically feasible. Table IV-2
provides a brief summary of the cost savings and benefits OSHA
estimates would result from the proposed rule.
TABLE IV-2
------------------------------------------------------------------------
Item Cost savings/benefits
------------------------------------------------------------------------
Cost Savings
------------------------------------------------------------------------
Remove the load limit posting $2,948,715.
requirement for single family
dwellings or townhouses in Sec.
1926.250 (a)(2).
Remove the requirement for periodic CXR 266,697.
in Sec. 1910.1029, Sec. 1910.1045,
and Sec. 1910.1018.
Revise paragraph (f) in 29 CFR 1926.50-- -27,899.
Medical Services and First Aid.
--------------------------------
Total.............................. 3,187,513.
Allow digital storage of chest Reduces storage costs, brings
roentgenograms in Sec. 1910.1029, standard up to date,
Sec. 1910.1045, Sec. 1910.1018, simplifies.
Sec. 1910.1001, Sec. 1915.1001,
Sec. 1926.1101, Sec. 1910.1027,and
Sec. 1926.1127.
------------------------------------------------------------------------
Benefits
------------------------------------------------------------------------
Remove the requirement for periodic CXR Reduced radiation, fewer false
in Sec. 1910.1029, Sec. 1910.1045, positives.
and Sec. 1910.1018.
Update required pulmonary function Brings OSHA standards up to
testing requirements in Sec. current technology and medical
1910.1043. practices.
Revise decompression tables to require Better protect employees,
adherence to 1992 French Air and reduce cases of decompression
Oxygen Decompression tables in Subpart illness, bring OSHA standard
S of Part 1926. up to current medical
guidelines.
------------------------------------------------------------------------
D. Regulatory Flexibility Analysis
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq. (as amended), OSHA examined the regulatory requirements of the
proposed rule to determine whether these proposed requirements would
have a significant economic impact on a substantial number of small
entities. This proposed rule has estimated annual costs of $27,899 and
would lead to approximately $3.2 million per year in cost savings to
regulated entities. Since the costs related to this proposal (from
posting location information in limited circumstances) amount to a few
dollars per construction project, and are widely dispersed
geographically and throughout the industry, the Agency believes the
proposed rule does not possess potential to have a significant impact
on a substantial number of small entities. The Agency therefore
certifies that the proposed rule would not have a significant economic
impact on a substantial number of small entities.
References
BLS, 2013a. Bureau of Labor Statistics Occupational Employment
Survey. May 2013. BLS Occupational Code: Construction Laborer 47-
2061. Found at: http://www.bls.gov/oes/current/oes472061.htm.
BLS, 2013b. Employer Cost for Employee Compensation, December 2013.
Economic News Release March 12th 2014. Found at: http://www.bls.gov/news.release/ecec.t06.htm.
Census, 2012. U.S. Census Bureau, "Characteristics of New Housing
2012." Found at: http://www.census.gov/construction/chars/highlights.html.
Census, 2014. U.S. Census Bureau, Construction Spending Survey data,
accessed from http://www.census.gov/econ/currentdata.
Dodge Data and Analytics, data run, 2 Penn Plaza New York, New York
10121.
ERG, 2015. Eastern Research Group, "Supporting Information for
Standard Improvement Project 4,".September, 2015.
FCC, 2014. Federal Communications Commission, "911 Wireless
Services Guide," December 2014.
NENA, 2001. RCN Commission and the National Emergency Number
Association (NENA), "Report Card to the Nation: The Effectiveness,
Accessibility and Future of America's 9-1-1 Service," September
2001. Found at: https://c.ymcdn.com/sites/www.nena.org/resource/collection/7F122EC0-BC5A-46DD-9A65-B39A035E87D5/NENA_Report_to_the_Nation_1.pdf.
OSHA, 1989. U.S. Department of Labor, Occupational Safety and Health
Administration, Office of Regulatory Analysis. Regulatory Impact and
Regulatory Flexibility Analysis of 29 CFR 190.147 (The Control of
Hazardous Energy Sources--Lockout/Tagout) August, 1989. Found at:
http://www.regulations.gov/#!documentDetail;D=OSHA-S012A-2006-0642-0266.
V. Legal Considerations
The purpose of the Occupational Safety and Health Act of 1970 (OSH
Act; 29 U.S.C. 651 et al.) 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; authorized summary adoption of existing national consensus
and established Federal standards within two years of the effective
date of the OSH Act (29 U.S.C. 655(a)); authorizing promulgation of
standards pursuant to notice and comment (29 U.S.C. 655(b)); and
required employers to comply with OSHA standards (29 U.S.C. 654(b)).
An occupational 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 it substantially
reduces or eliminates significant risk. In addition, it must be
technologically and economically feasible, cost effective, and
consistent with prior Agency action, or a justified departure. A
standard must be supported by substantial evidence, and be better able
to effectuate the OSH Act's purposes than any national consensus
standard it supersedes. (See 58 FR 16612-16616, March 30, 1993.)
A standard is technologically feasible if the protective measures
it requires already exist, can be brought into existence with available
technology, or can be created with technology that can reasonably be
expected to be developed. (See American Textile Mfrs. Institute v.
OSHA, 452 U.S. 490, 513 (1981) (ATMI); American Iron and Steel
Institute v. OSHA, 939 F.2d 975, 980 (D.C. Cir. 1991) (AISI).)
A standard is economically feasible if industry can absorb or pass
on the costs of compliance without threatening its long-term
profitability or competitive structure. See ATMI, 452 U.S. at 530 n.
55; AISI, 939 F.2d at 980. A standard is cost effective if the
protective measures it requires are the least costly of the available
alternatives that achieve the same level of protection. ATMI, 452 U.S.
at 514 n. 32; International Union, UAW v. OSHA, 37 F.3d 665, 668 (D.C.
Cir. 1994) (LOTO II). Section 6(b)(7) of the OSH Act authorizes OSHA to
include among a standard's requirements labeling, monitoring, medical
testing, and other information-gathering and transmittal provisions.
(29 U.S.C. 655(b)(7).) OSHA safety standards also must be highly
protective. (See 58 FR at 16614-16615; LOTO II, 37 F.3d at 668-669.)
Finally, whenever practical, standards shall "be expressed in terms of
objective criteria and of the performance desired." (29 U.S.C.
655(b)(5).)
VI. OMB Review Under the Paperwork Reduction Act of 1995
A. Overview
The purposes of the Paperwork Reduction Act 1995 (PRA), 44 U.S.C.
3501 et seq., include enhancing the quality and utility of information
the Federal government requires and minimizing the paperwork and
reporting burden on affected entities. The PRA requires certain actions
before an agency can adopt or revise a collection of information (paperwork),
including publishing a summary of the collection of information and a
brief description of the need for and proposed use of the information.
PRA defines "collection of information" as "the obtaining, causing
to be obtained, soliciting, or requiring the disclosure to third
parties or the public, of facts or opinions by or for an agency,
regardless of form or format" (44 U.S.C. 3502(3)(A)). Under PRA, a
Federal agency may not conduct or sponsor a collection of information
unless it is approved by OMB under the PRA, and displays a currently
valid OMB control number, and the public is not required to respond to
a collection of information unless it displays a currently valid OMB
control number (44 U.S.C. 3507). Also, notwithstanding any other
provisions of law, no person shall be subject to penalty for failing to
comply with a collection of information if the collection of
information does not display a currently valid OMB control number (44
U.S.C. 3512).
The Standards Improvement Project-Phase IV (SIP-IV) proposal would
modify a number of Information Collections currently approved by the
Office of Management and Budget (OMB) under the PRA.
B. Solicitation of Comments
Concurrent with publication of this proposed rule, the Department
is submitting a series of Information Collection Requests (ICRs) to
revise the collections in accordance with this NPRM, as required by the
PRA. See 44 U.S.C. 3507(d). Some of these revisions, if adopted, would
result in changes to the existing burden hour and/or cost estimates.
Other revisions may be less significant and would not change the ICR
burden hour and cost estimates.\42\
---------------------------------------------------------------------------
\42\ The proposal would revise to existing standard provisions
that are not collections of information. These revisions are not
addressed in this preamble section. However some revisions will
modify language contained in a currently OMB approved information
collection (paperwork analysis), though they will not change burden
hour or cost estimates. These information collections, referenced by
OMB Control number, are included in this section since the Agency
will prepare and submit an ICR to OMB to incorporate the revised
language into the existing information collection.
---------------------------------------------------------------------------
The Agency solicits comments on the information collection
requirements contained in this NPRM. The Agency is particularly
interested in comments on the collections of information requirements
that:
Evaluate whether the proposed collection of information
requirements are necessary for the proper performance of the Agency's
functions, including whether the information is useful;
Evaluate the accuracy of OSHA's estimate of the burden
(time and cost) of the information collection requirements, including
the validity of the methodology and assumptions used;
Enhance the quality, utility, and clarity of the
information collected; and
Minimize the compliance burden on employers, for example,
by using automated or other technological techniques for collecting and
transmitting information.
C. Proposed Revisions to the Collection of Information Requirements
As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the
following paragraphs provide information about the ICRs, including the
changes in burden associated with the proposed revisions to information
collection requirements.
1. Title: Standards Improvement Project-Phase IV (SIP-IV)
2. Description of revisions to the ICRs: The SIP-IV proposal adds,
removes, or revises collection of information requirements, as further
explained in Table 1(a) that identifies those ICRs where the proposal
will change burden hours and costs. For those ICRs, Table 1(b) itemizes
the responses, frequencies, time, burden hours, and cost as a result of
the program change. Table 2 identifies those ICRs where the proposal
will add to or revise the text of standards, but do not result in a
burden or cost change as result.
Table 1(a)--ICRs With Proposed Burden Hour Changes
------------------------------------------------------------------------
OMB control Provisions being
ICR title No. modified
------------------------------------------------------------------------
Coke Oven Emissions (29 CFR 1218-0128 OSHA is proposing to
1910.1029). remove the requirement
for periodic chest x-
rays as part of the
medical exams for
employees. In
addition, OSHA is
proposing to add the
option of digital
radiography to its
existing standards
because digital
radiography systems
are rapidly replacing
traditional analog
film-based systems in
medical facilities.
Acrylonitrile (29 CFR 1218-0126 OSHA is proposing to
1910.1045). remove the requirement
for periodic chest x-
rays as part of the
medical exams for
employees. OSHA is
proposing to add the
option of digital
radiography to its
existing standards
because digital
radiography systems
are rapidly replacing
traditional analog
film-based systems in
medical facilities.
Inorganic Arsenic (29 CFR 1218-0104 OSHA is proposing to
1910.1018). remove the requirement
for periodic chest x-
rays as part of the
medical exams for
employees. OSHA is
proposing to add the
option of digital
radiography to its
existing standards
because digital
radiography systems
are rapidly replacing
traditional analog
film-based systems in
medical facilities.
Construction Standards on 1218-0093 OSHA is proposing to
Posting Emergency Telephone add to 29 CFR
Numbers and Floor Load Limits 1926.50(f) a
(29 CFR 1926.50 and 29 CFR requirement that when
1926.250). an employer uses a
communication system
for contacting 911
services, if the
communication system
is in an area that
does not automatically
supply the caller's
latitude and longitude
to the 911 dispatcher,
the employer must post
or otherwise provide
to employees the
latitude and longitude
of the work site or
other information that
communicates the
location of the
worksite. In addition,
OSHA is proposing to
remove the load limit
posting requirement
for single family
dwellings or
townhouses in 29 CFR
1926.250.
------------------------------------------------------------------------
Table 1(b)--Estimated Burden Hours and Cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated
cost
Average Estimated (capital-
ICR Title and paragraph modified OMB control Number of Number of Frequency per response time per burden hour operation
No. respondents responses response /program and
(hours) change maintenance)
change
--------------------------------------------------------------------------------------------------------------------------------------------------------
Coke Oven Emissions (29 CFR 1910.1029) 1218-0128 2,324 2,324 Annual....................... 1.42 -581 -$159,008
(Sec. 1910.1029(j)).
Acrylonitrile (29 CFR 1910.1045) (Sec. 1218-0126 467 467 Annual....................... 1.25 -117 -31,952
1910.1045(n)).
Inorganic Arsenic (29 CFR 1910.1018) (Sec. 1218-0104 792 792 Annual....................... 1.42 -198 -54,188
1910.1018(n)).
Construction Standard on Posting Emergency 1218-0093 22,849 22,849 Annual....................... .05 1,142 27,899
Telephone Numbers (29 CFR 1926.50) \43\
(Sec. 1926.50(f)).
Construction Standard on Floor Load Limits 1218-0093 483,000 483,000 Annual....................... 0.25 -120,750 -2,948,715
(29 CFR 1926.250) (Sec. 1926.250 (a)).
-------------------------------------------------------------------------------------------------------------
Grand Total............................... ........... 509,432 509,432 ............................. ........... -120,504 -3,165,964
--------------------------------------------------------------------------------------------------------------------------------------------------------
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\43\ Both 29 CFR 1926.50 and 1926.250 are covered by the same
ICR, 1218-0093.
Table 2--ICRs With No Proposed Burden Hour Changes
----------------------------------------------------------------------------------------------------------------
OMB control
ICR title No. Provisions being modified
----------------------------------------------------------------------------------------------------------------
Asbestos in General Industry (29 CFR 1218-0133 OSHA is proposing to add the option of digital
1910.1001). radiography to its existing standards because
digital radiography systems are rapidly
replacing traditional analog film-based systems
in medical facilities.
Asbestos in Construction (29 CFR 1926.1101)... 1218-0134 OSHA is proposing to add the option of digital
radiography to its existing standards because
digital radiography systems are rapidly
replacing traditional analog film-based systems
in medical facilities.
Asbestos in Shipyards (29 CFR 1915.1001)...... 1218-0195 OSHA is proposing to add the option of digital
radiography to its existing standards because
digital radiography systems are rapidly
replacing traditional analog film-based systems
in medical facilities.
Cadmium in Construction (29 CFR 1926.1127).... 1218-0186 OSHA is proposing to add the option of digital
radiography to its existing standards because
digital radiography systems are rapidly
replacing traditional analog film-based systems
in medical facilities.
Cadmium in General Industry (29 CFR 1910.1027) 1218-0185 OSHA is proposing to add the option of digital
radiography to its existing standards because
digital radiography systems are rapidly
replacing traditional analog film-based systems
in medical facilities.
Cotton Dust (29 CFR 1910.1043)................ 1218-0061 OSHA is proposing to revise paragraph (h) and
Appendix D of its Cotton Dust standard. Many of
the revisions are simply editorial, to clarify
existing language, as well as to update
outdated pulmonary function measurements. OSHA
is also proposing to update paragraph
(h)(2)(iii) to require a determination of the
FEV1/FVC ration, and the evaluation of FEV1,
FVC, and FEV1/FVC against the lower limit of
normal (LLN) for each race/ethnic group, by
age, which is consistent with generally
accepted practices.
----------------------------------------------------------------------------------------------------------------
This proposal will also have an impact on the provisions in OSHA's
standards that currently require employers to include employee SSNs on
exposure monitoring, medical surveillance, and other records. As
explained above in the Summary and Explanation of the Proposed Rule
section (see Section III.B.17.), the Agency previously considered
stakeholder comments regarding the SSN collection requirements in
OSHA's standards during the SIP II (70 FR 1112, January 5, 2005) and
Respirable Crystalline Silica (81 FR 16285, March 25, 2016)
rulemakings. Eliminating SSN collection requirements from OSHA's
standards will affect several of the ICRs covered under the PRA. Table
3 shows the control number, title, and paragraph or appendix modified
for each of the ICRs that will be affected. The agency believes
removing the social security numbers will have no measureable impact on
employer burden.
Table 3--ICRs Affected by Social Security Removal
------------------------------------------------------------------------
Paragraph/
OMB control No. Title appendix modified
------------------------------------------------------------------------
1218-0202.................... Hazardous Waste 1910.120(f)(8)(ii
Operations and )(A),
Emergency Response 1926.65(f)(8)(ii
for General Industry )(A).
(29 CFR 1910.120) and
Construction (29 CFR
1926.65).
1218-0133.................... Asbestos in General 1910.1001(m)(1)(i
Industry (29 CFR i)(F),
1910.1001). 1910.1001(m)(3)(
ii)(A), Appendix
D.
1218-0010.................... Vinyl Chloride 1910.1017(m)(1).
Standard (29 CFR
1910.1017).
1218-0104.................... Inorganic Arsenic (29 1910.1018(q)(1)(i
CFR 1910.1018). i)(D),
1910.1018(q)(2)(
ii)(A).
1218-0092.................... Lead Standard in 1910.1025(d)(5),
General Industry (29 1910.1025(n)(1)(
CFR 1910.1025). ii)(D),
1910.1025(n)(2)(
ii)(A),
1910.1025(n)(3)(
ii)(A), Appendix
B.
1218-0252.................... Hexavalent Chromium 1910.1026(m)(1)(i
Standards for General i)(F),
Industry (29 CFR 1910.1026(m)(4)(
1910.1026), Shipyard ii)(A),
Employment (29 CFR 1915.1026(k)(1)(
1915.1026), and ii)(F),
Construction (29 CFR 1915.1026(k)(4)(
1926.1126). ii)(A),
1926.1126(k)(1)(
ii)(F),
1926.1126(k)(4)(
ii)(A).
1218-0185.................... Cadmium in General 1910.1027(n)(1)(i
Industry Standard (29 i)(B),
CFR 1910.1027). 1910.1027(n)(3)(
ii)(A), Appendix
D.
1218-0129.................... Benzene (29 CFR 1910.1028(k)(1)(i
1910.1028). i)(D),
1910.1028(k)(2)(
ii)(A).
1218-0128.................... Coke Oven Emissions 1910.1029(m)(1)(i
(29 CFR 1910.1029). )(a),
1910.1029(m)(2)(
i)(a).
1218-0180.................... Bloodborne Pathogens 1910.1030(h)(1)(i
Standard (29 CFR i)(A).
1910.1030).
1218-0061.................... Cotton Dust (29 CFR 1910.1043(k)(1)(i
1910.1043). i)(C),
1910.1043(k)(2)(
ii)(A),
Appendices B-I,
B-II, B-III.
1218-0101.................... 1,2-Dibromo-3- 1910.1044(p)(1)(i
Choropropane (DBCP) i)(d),
Standard (29 CFR 1910.1044(p)(2)(
1910.1044). ii)(a).
1218-0126.................... Acrylonitrile Standard 1910.1045(q)(2)(i
(29 CFR 1910.1045). i)(D).
1218-0108.................... Ethylene Oxide (EtO) 1910.1047(k)(2)(i
Standard (29 CFR i)(F),
1910.1047). 1910.1047(k)(3)(
ii)(A).
1218-0145.................... Formaldehyde Standard 1910.1048(o)(1)(v
(29 CFR 1910.1048). i),
1910.1048(o)(3)(
i),
1910.1048(o)(4)(
ii)(D), Appendix
D.
1218-0184.................... 4,4'- 1910.1050(n)(3)(i
Methylenedianiline i)(D),
(MDA) for General 1910.1050(n)(4)(
Industry (29 CFR ii)(A),
1910.1050). 1910.1050(n)(5)(
ii)(A).
1218-0170.................... 1,3-Butadiene Standard 1910.1051(m)(2)(i
(29 CFR 1910.1051). i)(F),
1910.1051(m)(4)(
ii)(A), Appendix
F.
1218-0179.................... Methylene Chloride (29 1910.1052(m)(2)(i
CFR 1910.1052). i)(F),
1910.1052(m)(2)(
iii)(C),
1910.1052(m)(3)(
ii)(A), Appendix
B.
1218-0266.................... Respirable Crystalline
Silica Standards for
General Industry,
Shipyard Employment
and Marine Terminals
(29 CFR 1910.1053)
and Construction (29
CFR 1926.1153)
1910.1053(k)(1)(ii)(G
),
1910.1053(k)(3)(ii)(A
),
1926.1153(j)(1)(ii)(G
),
1926.1153(j)(3)(ii)(A
).
1218-0195.................... Asbestos in Shipyards 1915.1001(n)(2)(i
Standard (29 CFR i)(F),
1915.1001). 1915.1001(n)(3)(
ii)(A), Appendix
D.
1218-0134.................... Asbestos in 1926.1101(n)(2)(i
Construction (29 CFR i)(F),
1926.1101). 1926.1101(n)(3)(
ii)(A), Appendix
D.
1218-0186.................... Cadmium in 1926.1127(d)(2)(i
Construction Standard v),
(29 CFR 1926.1127). 1926.1127(n)(1)(
ii)(B),
1926.1127(n)(3)(
ii)(A).
1218-0183.................... 4,4'- 1926.60(o)(4)(ii)
Methylenedianiline (F),
(MDA) in Construction 1926.60(o)(5)(ii
(29 CFR 1926.60). )(A).
1218-0189.................... Lead in Construction 1926.62(d)(5),
Standard (29 CFR 1926.62(n)(1)(ii
1926.62). )(D),
1926.62(n)(2)(ii
)(A),
1926.62(n)(3)(ii
)(A), Appendix
B.
------------------------------------------------------------------------
In addition to the above-described changes, the Agency will make
adjustments to the some of the ICRs to reflect on-going PRA
interpretations that will result in changes to the burden hours and
costs; these changes are not a result of this rulemaking.
D. Submitting Comments
Members of the public who wish to comment on the paperwork
requirements in this proposal must send their written comments to the
Office of Information and Regulatory Affairs, Attn: OMB Desk Officer
for the DOL-OSHA, Office of Management and Budget, Room 10235,
Washington, DC 20503. You may also submit comments to OMB by email at
OIRA_submission@omb.eop.gov. Please reference the ICR's OMB control
number in order to help ensure proper consideration. The Agency
encourages commenters also to submit their comments on these paperwork
requirements to the rulemaking docket (Docket Number OSHA-2012-0007),
along with their comments on other parts of the proposed rule. For
instructions on submitting these comments to the rulemaking docket, see
the sections of this Federal Register notice titled DATES and
ADDRESSES.
E. Docket and Inquiries
To access the docket to read or download comments and other
materials related to these paperwork determination, including the ICR
(containing the Supporting Statement with attachments describing the
paperwork determinations in detail) use the procedures described under
the section of this notice titled ADDRESSES. You also may obtain an
electronic copy of the complete ICRs by visiting the Web page at http://www.reginfo.gov/public/do/PRAMain, scroll under "Currently Under
Review" to "Department of Labor (DOL)" to view all of the DOL's
ICRs, including those ICRs submitted for proposed rulemakings.
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.
VII. Federalism
OSHA reviewed this proposed 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.
Agencies must limit any such preemption to the extent possible.
Under Section 18 of the OSH Act, 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.
While OSHA drafted this proposed rule to protect employees in every
State, Section 18(c)(2) of the OSH Act permits State Plan States and
Territories to develop and enforce their own standards, provided the
requirements in these standards are at least as safe and healthful as
the requirements specified in this proposed rule.
In summary, this proposed rule complies with Executive Order 13132.
In States without OSHA-approved State Plans, any standard developed
from this proposed 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.
VIII. State Plans
When Federal OSHA promulgates a new standard or a more stringent
amendment to an existing standard, the 28 States and U.S. territories
with their own OSHA-approved occupational safety and health plans
("State Plan States") must revise their standards to reflect the new
standard or amendment. The State standard must be at least as effective
as the final Federal standard or amendment, and must be promulgated
within six months of the publication date of the final Federal rule (29
U.S.C. 667(c)(2); 29 CFR 1953.5(a)).
A State-Plan State may demonstrate that a standard change is
unnecessary because the State standard is already the same as or at
least as effective as the new or amended Federal standard. In order to
avoid delays in worker protection, the effective date of the State
standard and any of its delayed provisions must be the date of State
promulgation or the Federal effective date, whichever is later. The
Assistant Secretary may permit a longer time period if the State timely
demonstrates that good cause exists for extending the time limitation
(29 CFR 1953.5(a)). 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. Six States and territories cover only public-sector
employees: Connecticut, Illinois, Maine, New Jersey, New York, and the
Virgin Islands.
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 concludes that this final rule, by revising confusing,
outdated, duplicative, or inconsistent standards, will increase the
protection afforded to employees while reducing the compliance burden
of employers. Therefore, States and Territories with approved State
Plans must adopt comparable amendments to their standards within six
months of the promulgation date of this rule unless they demonstrate
that such amendments are not necessary because their existing standards
are at least as effective in protecting workers as this final rule.
IX. Unfunded Mandates Reform Act of 1995
OSHA reviewed this proposed 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 in section IV ("Preliminary
Economic Analysis and Regulatory Flexibility Act Certification") of
this notice, the Agency determined that this proposed rule has one
revision with estimated annual new costs of $27,899, but all proposed
revisions would result in approximately $3.2 million per year in
overall (net) cost savings to regulated entities.
As noted under section VIII ("State Plans") of this notice, the
Agency's standards do not apply to State and local governments except
in States that elect voluntarily to adopt a State Plan approved by the
Agency. Consequently, this proposed 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 proposed 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.
X. Review by the Advisory Committee for Construction Safety and Health
OSHA must to consult with the ACCSH whenever the Agency proposes a
rulemaking that involves the occupational safety and health of
construction employees (29 CFR 1911.10, 1912.3). Accordingly, prior to
the dates of meetings listed below, OSHA distributed to the ACCSH
members for their review, a copy of the proposed revisions that applied
to construction, as well as a brief summary and explanation of these
revisions. At the regular meetings on December 15-16, 2011, May 10-11
2012, November 29, 2012, March 18, 2013, May 23, 2013, August 22, 2013,
May 7-8 2014, December 3-4, 2014, and December 2, 2015, OSHA staff made
presentations to the ACCSH members that summarized the material
provided to them earlier, and then responded to their questions. The
ACCSH subsequently recommended that OSHA publish the proposal.
XI. Public Participation
A. Submission of Comments and Access to the Docket
OSHA invites comments on the proposed revisions described, and the
specific issues raised, in this notice. These comments should include
supporting information and data. OSHA will carefully review and
evaluate these comments, information, and data, as well as any other
information in the rulemaking record, to determine how to proceed.
When submitting comments, parties must follow the procedures
specified in the previous sections titled DATES and ADDRESSES.
The comments must provide the name of the commenter and docket
number. The comments also should identify clearly the provision
of the proposal each comment is addressing, the position taken with
respect to the proposed provision or issue, and the basis for that
position. Comments, along with supporting data and references,
submitted on or before the end of the specified comment period will
become part of the proceedings record, and will be available for public
inspection and copying at http://www.regulations.gov.
B. Requests for an Informal Public Hearing
Under section 6(b)(3) of the OSH Act and 29 CFR 1911.11, members of
the public may request an informal public hearing by following the
instructions under the section of this Federal Register notice titled
ADDRESSES. Hearing requests must include the name and address of the
party requesting the hearing, and submitted (e.g., postmarked,
transmitted, sent) on or before December 5, 2016. All submissions must
bear a postmark or provide other evidence of the submission date.
List of Subjects
29 CFR Part 1904
Recordkeeping.
29 CFR Part 1910
Chest X-ray requirements, Incorporation by reference, Lockout/
tagout, Pulmonary-function testing, Reporting and recordkeeping
requirements.
29 CFR Part 1915
Chest X-ray requirements, Reporting and recordkeeping requirements,
Sanitation.
29 CFR Part 1926
Airborne contaminants, Construction, Chest X-ray requirements, Coke
oven emissions, Diesel equipment, Decompression table, Excavations,
Emergency services, Incorporation by reference, Lanyards, Load limits,
Manual on Uniform Traffic Control Devices (MUCTD), Personal protective
equipment, Process safety management, Reporting and recordkeeping
requirements, Roll-over protective structures (ROPs).
Authority and Signature
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for
Occupational Safety and Health, U.S. Department of Labor, 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, 657),
29 CFR part 1911, and Secretary's Order 1-2012 (77 FR 3912).
Signed at Washington, DC, on August 10, 2016.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
Proposed Amendments to Standards
For the reasons stated in the preamble of this proposed rule, the
Occupational Safety and Health Administration is proposing to amend 29
CFR parts 1904, 1910, 1915, and 1926 as set forth below:
PART 1904--RECORDING AND REPORTING OCCUPATIONAL INJURIES AND
ILLNESSES
0
1. Revise the authority citation for part 1904 to read as follows:
Authority: 29 U.S.C. 657, 658, 660, 666, 669, 673, Secretary of
Labor's Orders No. 3-2000 (65 FR 50017) and 1-2012 (77 FR 3912), as
applicable, and 5 U.S.C. 553.
Subpart C--Recordkeeping Forms and Recording Criteria
0
2. Revise paragraph (b)(6) of Sec. 1904.10 to read as follows:
Sec. 1904.10 Recording criteria for cases involving occupational
hearing loss.
* * * * *
(b) * * *
(6) If a physician or other licensed health care professional
determines the hearing loss is not work-related, do I still need to
record the case? If a physician or other licensed health care
professional determines, following the rules set out in Sec. 1904.5,
that the hearing loss is not work-related or that occupational noise
exposure did not significantly aggravate the hearing loss, you do not
have to consider the case work-related or record the case on the OSHA
300 Log.
* * * * *
PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS
0
3. The authority section for part 1910 continues to read as follows:
Authority: 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), 5-2002 (67 FR
65008), 5-2007 (72 FR 31159), 4-2010 (75 FR 55355), or 1-2012 (77 FR
3912), as applicable.
Sections 1910.6, 1910.7, 1910.8, and 1910.9 also issued under 29
CFR 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);
Public Law 11-8 and 111-317; and OMB Circular A-25 (dated July 8,
1993) (58 FR 38142, July 15, 1993).
Subpart A--General
0
4. Add paragraphs (aa) and (bb) to Sec. 1910.6 to read as follows:
Sec. 1910.6 Incorporation by reference.
* * * * *
(aa) The following material is available for purchase at the
American Thoracic Society (ATS), 25 Broadway, 18th Floor New York, NY
10004; Web site: http://www.atsjournals.org/.
(1) Spirometric Reference Values from a Sample of the General U.S.
Population. Hankinson JL, Odencrantz JR, Fedan KB. American Journal of
Respiratory and Critical Care Medicine, 159(1):179-187, January 1999,
IBR approved for Sec. 1910.1043(h).
(2) [Reserved]
(bb) The following material is available for purchase from the
International Labour Organization (ILO), 4 route des Morillons, CH-1211
Gen[egrave]ve 22, Switzerland; telephone: +41 (0) 22 799 6111; fax: +41
(0) 22 798 8685; Web site: http://www.ilo.org/.
(1) Guidelines for the Use of the ILO International Classification
of Radiographs of Pneumoconioses, Revised Edition 2011, Occupational
safety and health series; 22 (Rev.2011), IBR approved for Sec.
1910.1001, Appendix E.
(2) [Reserved]
Subpart J--General Environmental Controls
0
5. The authority section for subpart J continues to read as follows:
Authority: 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), 5-2007 (72 FR
31159), 4-2010 (75 FR 55355), or 1-2012 (77 FR 3912), as applicable.
0
6. Amend Sec. 1910.147 by:
0
a. Revising paragraphs (a)(1)(i), (a)(2)(iii)(A), and (a)(3)(i);
0
b. Revising the definition of "Servicing and/or maintenance" in
paragraph (b);
0
c. Revising paragraphs (c)(1) and (c)(4)(i) note;
0
d. Revising paragraph (f)(4);
0
e. Revising Appendix A.
The revisions read as follows:
Sec. 1910.147 The control of hazardous energy (lockout/tagout).
(a) * * *
(1) * * *
(i) This standard covers the servicing and maintenance of machines
and equipment in which the energization or startup of the machines or
equipment, or release of stored energy could cause injury to employees.
This standard establishes minimum performance requirements for the
control of such hazardous energy.
* * * * *
(2) * * *
(iii) * * *
(A) Work on cord and plug connected electric equipment for which
exposure to the hazards of energization or startup of the equipment is
controlled by the unplugging of the equipment from the energy source
and by the plug being under the exclusive control of the employee
performing the servicing or maintenance.
* * * * *
(3) * * *
(i) This section requires employers to establish a program and
utilize procedures for affixing appropriate lockout devices or tagout
devices to energy isolating devices, and to otherwise disable machines
or equipment to prevent energization, startup or release of stored
energy in order to prevent injury to employees.
* * * * *
(b) * * *
Servicing and/or maintenance. Workplace activities such as
constructing, installing, setting up, adjusting, inspecting, modifying,
and maintaining and/or servicing machines or equipment. These
activities include lubrication, cleaning or unjamming of machines or
equipment and making adjustments or tool changes, where the employee
may be exposed to the energization or startup of the equipment or
release of hazardous energy.
* * * * *
(c) * * *
(1) Energy control program. The employer shall establish a program
consisting of energy control procedures, employee training and periodic
inspections to ensure that before any employee performs any servicing
or maintenance on a machine or equipment where the energizing, startup
or release of stored energy could occur and cause injury, the machine
or equipment shall be isolated from the energy source and rendered
inoperative.
* * * * *
(4) * * *
(i) * * *
Note: Exception: The employer need not document the required
procedure for a particular machine or equipment, when all of the
following elements exist: (1) The machine or equipment has no potential
for stored or residual energy or reaccumulation of stored energy after
shut down which could endanger employees; (2) the machine or equipment
has a single energy source which can be readily identified and
isolated; (3) the isolation and locking out of that energy source will
completely deenergize and deactivate the machine or equipment; (4) the
machine or equipment is isolated from that energy source and locked out
during servicing or maintenance; (5) a single lockout device will
achieve a locked-out condition; (6) the lockout device is under the
exclusive control of the authorized employee performing the servicing
or maintenance; (7) the servicing or maintenance does not create
hazards for other employees; and (8) the employer, in utilizing this
exception, has had no accidents involving the activation or
reenergization of the machine or equipment during servicing or
maintenance.
* * * * *
(f) * * *
(4) Shift or personnel changes. Specific procedures shall be
utilized during shift or personnel changes to ensure the continuity of
lockout or tagout protection, including provision for the orderly
transfer of lockout or tagout device protection between off- going and
oncoming employees, to minimize exposure to hazards from the
energization or startup of the machine or equipment, or the release of
stored energy.
* * * * *
[GRAPHIC] [TIFF OMITTED] TP04OC16.000
[GRAPHIC] [TIFF OMITTED] TP04OC16.001
[GRAPHIC] [TIFF OMITTED] TP04OC16.002
[GRAPHIC] [TIFF OMITTED] TP04OC16.003
Subpart Z--Toxic and Hazardous Substances
0
7. Revise the authority citation for subpart Z 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), 4-2010 (75 FR 55355) or 1-2012 (77 FR
3912), as applicable; and 29 CFR part 1911.
All of subpart Z issued under section 6(b) of the Occupational
Safety and Health Act of 1970, except those substances that have
exposure limits listed in Tables Z-1, Z-2, and Z-3 of 29 CFR
1910.1000. The latter were issued under section 6(a) (29 U.S.C.
655(a)).
Section 1910.1000, Tables Z-1, Z-2 and Z-3 also issued under 5
U.S.C. 553, but not under 29 CFR part 1911 except for the arsenic
(organic compounds), benzene, cotton dust, and chromium (VI)
listings.
Section 1910.1001 also issued under section 107 of the Contract
Work Hours and Safety Standards Act (40 U.S.C. 3704) and 5 U.S.C.
553.
Section 1910.1002 also issued under 5 U.S.C. 553, but not under
29 U.S.C. 655 or 29 CFR part 1911.
Sections 1910.1018, 1910.1029, and 1910.1200 also issued under
29 U.S.C. 653.
Section 1910.1030 also issued under Pub. L. 106-430, 114 Stat.
1901.
Section 1910.1201 also issued under 49 U.S.C. 1801-1819 and 5
U.S.C. 553.
0
8. Amend Sec. 1910.1001 by:
0
a. Revising paragraphs (l)(2)(ii) and (l)(3)(ii);
0
b. Revising the heading to Table 1;
0
c. Revising Appendix D;
0
d. Revising Appendix E;
0
e. Revising Appendix H, sections III and IV(iii).
The revisions read as follows:
Sec. 1910.1001 Asbestos.
* * * * *
(l) * * *
(2) * * *
(ii) Such examination shall include, as a minimum, a medical and
work history; a complete physical examination of all systems with
emphasis on the respiratory system, the cardiovascular system and
digestive tract; completion of the respiratory disease standardized
questionnaire in Appendix D to this section, part 1; a 14- by 17-inch
or other reasonably-sized standard film or digital posterior-anterior
chest X-ray; pulmonary function tests to include forced vital capacity
(FVC) and forced expiratory volume at 1 second (FEV(1.0)); and any
additional tests deemed appropriate by the examining physician.
Classification of all chest X-rays shall be conducted in accordance
with Appendix E to this section.
(3) * * *
(ii) The scope of the medical examination shall be in conformance
with the protocol established in paragraph (l)(2)(ii) of this section,
except that the frequency of chest X-rays shall be conducted in
accordance with Table 1, and the abbreviated standardized questionnaire
contained in part 2 of Appendix D to this section shall be administered
to the employee.
Table 1--Frequency of Chest X-ray
* * * * *
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0
9. Amend Sec. 1910.1018 by:
0
a. Revising paragraphs (n)(2)(ii)(A) and, (n)(3)(i) and (ii);
0
b. Revising Appendix A, section VI;
0
c. Revising Appendix C, sections I(2) and (4).
The revisions read as follows:
Sec. 1910.1018 Inorganic arsenic.
* * * * *
(n) * * *
(2) * * *
(ii) * * *
(A) A standard film or digital posterior-anterior chest X-ray;
* * * * *
(3) * * *
(i) Examinations must be provided in accordance with paragraphs
(n)(2)(i) and (n)(2)(ii)(B) and (C) of this section at least annually.
(ii) Whenever a covered employee has not taken the examinations
specified in paragraphs (n)(2)(i) and (n)(2)(ii)(B) and (C) of this
section within six (6) months preceding the termination of employment,
the employer shall provide such examinations to the employee upon
termination of employment.
* * * * *
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0
10. Amend Sec. 1910.1027 by:
0
a. Revising paragraph (l)(4)(ii)(C);
0
b. Revising Appendix D.
The revisions read as follows:
Sec. 1910.1027 Cadmium.
(l) * * *
(4) * * *
(ii) * * *
(C) A 14 inch by 17 inch or other reasonably-sized standard film or
digital posterior-anterior chest X-ray (after the initial X-ray, the
frequency of chest X-rays is to be determined by the examining
physician);
* * * * *
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0
11. Amend Sec. 1910.1029 by:
0
a. Revising paragraphs (j)(2)(ii) and (j)(3);
0
b. Revising Appendix A, section VI;
0
c. Revising Appendix B, section II(A).
The revisions read as follows:
Sec. 1910.1029 Coke oven emissions.
* * * * *
(j) * * *
(2) * * *
(ii) 14- by 17-inch or other reasonably-sized standard film or
digital posterior-anterior chest X-ray;
* * * * *
(3) Periodic examinations. (i) The employer shall provide the
examinations specified in paragraphs (j)(2)(i) and (j)(2)(iii) through
(vi) of this section at least annually for employees covered under
paragraph (j)(1)(i) of this section.
(ii) The employer must provide the examinations specified in
paragraphs (j)(2)(i) and (j)(2)(iii) through (vii) of this section at
least annually for employees 45 years of age or older or with five (5)
or more years employment in the regulated area.
(iii) Whenever an employee who is 45 years of age or older or with
five (5) or more years employment in a regulated area transfers or is
transferred from employment in a regulated area, the employer must
continue to provide the examinations specified in paragraphs (j)(2)(i)
and (j)(2)(iii) through (vii) of this section at least annually as long
as that employee is employed by the same employer or a successor
employer.
* * * * *
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0
12. Amend Sec. 1910.1043 by:
0
a. Revising paragraphs (h)(2)(iii) and (h)(3)(ii);
0
b. Revising paragraph (n)(1);
0
c. Revising Appendices B-I, B-II, and B-III;
0
d. Removing and reserving Appendix C;
0
e. Revising Appendix D.
The revisions read as follows:
Sec. 1910.1043 Cotton Dust.
* * * * *
(h) * * *
(2) * * *
(iii) A pulmonary function measurement, including forced vital
capacity (FVC) and forced expiratory volume in one second (FEV1), and
determination of the FEV1/FVC ratio shall be made. FVC, FEV1, and FEV1/
FVC ratio values shall be compared to appropriate race/ethnicity-
specific Lower Limit of Normal (LLN) values and predicted values
published in Spirometric Reference Values from a Sample of the General
U.S. Population, American Journal of Respiratory and Critical Care
Medicine, 159(1):179-187, January 1999 (incorporated by reference, see
Sec. 1910.6). To obtain reference values for Asian-Americans,
Spirometric Reference Values FEV1 and FVC predicted and LLN values for
Caucasians shall be multiplied by 0.88 to adjust for ethnic
differences. These determinations shall be made for each employee
before the employee enters the workplace on the first day of the work
week, preceded by at least 35 hours of no exposure to cotton dust. The
tests shall be repeated during the shift, no less than 4 and no more
than 10 hours after the beginning of the work shift; and, in any event,
no more than one hour after cessation of exposure. Such exposure shall
be typical of the employee's usual workplace exposure.
* * * * *
(3) * * *
(ii) Medical surveillance as required in paragraph (h)(3)(i) of
this section shall be provided every six months for all employees in
the following categories:
(A) An FEV1 greater than the LLN, but with an FEV1 decrement of 5
percent or 200 ml. on a first working day;
(B) An FEV1 of less than the LLN; or
* * * * *
(n) * * *
(1) Appendices B and D of this section are incorporated as part of
this section and the contents of these appendices are mandatory.
* * * * *
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0
13. Revise paragraphs (n)(2)(iii), and (n)(3)(i) and (ii) of Sec.
1910.1045 to read as follows:
Sec. 1910.1045 Acrylonitrile.
* * * * *
(n) * * *
(2) * * *
(iii) 14- by 17-inch or other reasonably-sized standard film or
digital posterior-anterior chest X-ray; and
* * * * *
(3) * * *
(i) The employer shall provide the examinations specified in
paragraphs (n)(2)(i), (ii), and (iv) of this section at least annually
for all employees specified in paragraph (n)(1) of this section.
(ii) If an employee has not had the examination specified in
paragraphs (n)(2)(i), (ii), and (iv) of this section within 6 months
preceding termination of employment, the employer shall make such
examination available to the employee prior to such termination.
* * * * *
0
14. Revise Appendix D of Sec. 1910.1048 to read as follows:
Sec. 1910.1048 Formaldehyde.
* * * * *
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Sec. 1910.1051 1,3-Butadiene.
* * * * *
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0
16. Revise Appendix B, section IV., of Sec. 1910.1052 to read as
follows:
Sec. 1910.1052 Methylene chloride.
* * * * *
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PART 1915--OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR SHIPYARD
EMPLOYMENT
0
17. The authority citation for part 1915 continues to read as follows:
Authority: Section 41, Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 941); 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), 5-2002 (67 FR 65008), 5-2007 (72 FR 31160), 4-
2010 (75 FR 55355), or 1-2012 (77 FR 3912), as applicable; 29 CFR
part 1911.
Sections 1915.120 and 1915.152 of 29 CFR also issued under 29
CFR part 1911.
Subpart A--General Provisions
0
18. Add paragraph (d)(6) to Sec. 1915.5 to read as follows:
Sec. 1915.5 Incorporation by reference.
* * * * *
(d) * * *
(6) The following material is available for purchase from the
International Labour Organization (ILO), 4 route des Morillons, CH-1211
Gen[egrave]ve 22, Switzerland; telephone: +41 (0) 22 799 6111; fax: +41
(0) 22 798 8685; Web site: http://www.ilo.org/.
(i) Guidelines for the Use of the ILO International Classification
of Radiographs of Pneumoconioses, Revised Edition 2011, Occupational
safety and health series; 22 (Rev.2011), IBR approved for Sec.
1915.1001, Appendix E.
* * * * *
Subpart F--General Working Conditions
0
19. Revise paragraph (b)(33) of Sec. 1915.80 to read as follows:
Sec. 1915.80 Scope, application, definitions, and effective dates.
* * * * *
(b) * * *
(33) Vermin. Insects, birds, rodents and other animals that may
create safety and health hazards for employees.
* * * * *
Subpart Z--Toxic and Hazardous Substances
0
20. Amend Sec. 1915.1001 by:
0
a. Revising paragraph (m)(2)(ii)(C);
0
b. Revising Appendix D;
0
c. Revising Appendix E;
0
d. Revising Appendix I, sections III and IV(iii).
The revisions read as follows:
Sec. 1915.1001 Asbestos.
* * * * *
(m) * * *
(2) * * *
(ii) * * *
(C) A physical examination directed to the pulmonary and
gastrointestinal systems, including a 14- by 17-inch or other
reasonably-sized standard film or digital posterior-anterior chest X-
ray to be administered at the discretion of the physician, and
pulmonary function tests of forced vital capacity (FVC) and forced
expiratory volume at one second (FEV(1)). Classification of all chest
X-rays shall be conducted in accordance with Appendix E to this
section.
* * * * *
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PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION
Subpart A--General
0
21. The authority citation for subpart A continues to read as follows:
Authority: 40 U.S.C. 3701 et seq.; 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), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160),
5-2007 (72 FR 31160), 4-2010 (75 FR 55355), or 1-2012 (77 FR 3912),
as applicable; and 29 CFR part 1911.
0
22. Amend Sec. 1926.6 by:
0
a. Revising paragraph (u)(1) and removing and reserving (u)(2);
0
b. Redesignating paragraphs (x)(1) through (3) as paragraphs (x)(4)
through (6), and adding new paragraphs (x)(1) through (3);
0
c. Revising paragraph (dd); and
0
d. Adding paragraphs (gg) and (hh).
The revisions and additions read as follows:
Sec. 1926.6 Incorporation by reference.
* * * * *
(u) * * *
(1) Manual on Uniform Traffic Control Devices, 2009 Edition, Part
6, May 2012, IBR approved for Sec. Sec. 1926.200(g) and 1926.201(a).
* * * * *
(x) * * *
(1) ISO 27850:2013, Tractors for agriculture and forestry--Falling
object protective structures--Test procedures and performance
requirements, First Edition, May.01, 2013 ("ISO 27850:2013"), IBR
approved for Sec. 1926.1003(c).
(2) ISO 3471:2008, Earth-moving machinery--Roll-over protective
structures--Laboratory tests and performance requirements, Fourth
Edition, Aug. 8, 2008 ("ISO 3471:2008"), IBR approved for Sec.
1926.1001(c).
(3) ISO 5700:2013, Tractors for agriculture and forestry--Roll-over
protective structures--Static test method and conditions, Fifth
Edition, May 1, 2013 ("ISO 5700:2013"), IBR approved for Sec.
1926.1002(c).
* * * * *
(dd) The following material is available for purchase from the
Society of Automotive Engineers (SAE), 400 Commonwealth Drive,
Warrendale, PA 15096; telephone: 1-877-606-7323; fax: 724-776-0790; Web
site: http://www.sae.org/:
(1) SAE 1970 Handbook, IBR approved for Sec. 1926.602(b).
(2) SAE J166-1971, Trucks and Wagons, IBR approved for Sec.
1926.602(a).
(3) SAE J167-1970, Protective Frame with Overhead Protection-Test
Procedures and Performance Requirements, IBR approved for Sec.
1926.1003(b).
(4) SAE J168-1970, Protective Enclosures-Test Procedures and
Performance Requirements, IBR approved for Sec. 1926.1002(b).
(5) SAE J185 (reaf. May 2003), Access Systems for Off-Road
Machines, reaffirmed May 2003 ("SAE J185 (May 1993)"), IBR approved
for Sec. 1926.1423(c).
(6) SAE J236-1971, Self-Propelled Graders, IBR approved for Sec.
1926.602(a).
(7) SAE J237-1971, Front End Loaders and Dozers, IBR approved for
Sec. 1926.602(a).
(8) SAE J319b-1971, Self-Propelled Scrapers, IBR approved for Sec.
1926.602(a).
(9) SAE J320a-1971, Minimum Performance Criteria for Roll-Over
Protective Structure for Rubber-Tired, Self-Propelled Scrapers, IBR
approved for Sec. 1926.1001(b).
(10) SAE J321a-1970, Fenders for Pneumatic-Tired Earthmoving
Haulage Equipment, IBR approved for Sec. 1926.602(a).
(11) SAE J333a-1970, Operator Protection for Agricultural and Light
Industrial Tractors, IBR approved for Sec. 1926.602(a).
(12) SAE J334a-1970, Protective Frame Test Procedures and
Performance Requirements, IBR approved for Sec. 1926.1002(b).
(13) SAE J386-1969, Seat Belts for Construction Equipment, IBR
approved for Sec. 1926.602(a).
(14) SAE J394-1971, Minimum Performance Criteria for Roll-Over
Protective Structure for Rubber-Tired Front End Loaders and Robber-
Tired Dozers, IBR approved for 1926.1001(b).
(15) SAE J395-1971, Minimum Performance Criteria for Roll-Over
Protective Structure for Crawler Tractors and Crawler-Type Loaders, IBR
approved for Sec. 1926.1001(b).
(16) SAE J396-1971, Minimum Performance Criteria for Roll-Over
Protective Structure for Motor Graders, IBR approved for Sec.
1926.1001(b).
(17) SAE J397-1969, Critical Zone Characteristics and Dimensions
for Operators of Construction and Industrial Machinery, IBR approved
for Sec. 1926.1001(b).
(18) SAE J743a-1964, Tractor Mounted Side Boom, 1964 ("SAE J743a-
1964"), IBR approved for Sec. 1926.1501(a).
(19) SAE J959-1966, Lifting Crane Wire-Rope Strength Factors, 1966
("SAE J959-1966"), IBR approved for Sec. 1926.1501(a).
(20) SAE J987 (rev. Jun. 2003), Lattice Boom Cranes--Method of
Test, revised Jun. 2003 ("SAE J987 (Jun. 2003)"), IBR approved for
Sec. 1926.1433(c).
(21) SAE J1063 (rev. Nov. 1993), Cantilevered Boom Crane
Structures--Method of Test, revised Nov. 1993 ("SAE J1063 (Nov.
1993)"), IBR approved for Sec. 1926.1433(c).
* * * * *
(gg) The following material is available for purchase from the
French government at http://www.journal-officiel.gouv.fr/.
(1) Travaux en milieu hyperbare, measures particuli[egrave]res de
pr[eacute]vention (Work in hyperbaric environment, specific prevention
measures). J.O. Rep. Fran[ccedil]. Brochure n[deg] 1636, June 1992.
(2) [Reserved]
(hh) The following material is available for purchase from the
International Labour Organization (ILO), 4 route des Morillons, CH-1211
Gen[egrave]ve 22, Switzerland; telephone: +41 (0) 22 799 6111; fax: +41
(0) 22 798 8685; Web site: http://www.ilo.org/.
(1) Guidelines for the Use of the ILO International Classification
of Radiographs of Pneumoconioses, Revised Edition 2011, Occupational
safety and health series; 22 (Rev. 2011), IBR approved for Sec.
1926.1101, Appendix E.
(2) [Reserved]
Subpart D--Occupational Health and Environmental Controls
0
23. Revise the authority citation for subpart D to read as follows:
Authority: Section 107 of the Contract Work Hours and Safety
Standards Act (40 U.S.C. 3704); Sections 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (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), or 1-2012 (77 FR 3912) 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 section 1031 of the Housing
and Community Development Act of 1992 (42 U.S.C. 4853).
Section 1926.65 also issued under section 126 of the Superfund
Amendments and Reauthorization Act of 1986, as amended (reprinted at
29 U.S.C.A. 655 Note), and 5 U.S.C. 553.
0
24. Revise paragraph (f) of Sec. 1926.50 to read as follows:
Sec. 1926.50 Medical services and first aid.
* * * * *
(f)(1) In areas where 911 emergency dispatch services are not
available, the telephone numbers of the physicians, hospitals, or
ambulances shall be conspicuously posted.
(2) In areas where 911 emergency dispatch services are available
and an employer uses a communication system for contacting necessary
emergency-medical service, the employer must:
(i) Ensure that the communication system is effective in contacting
the emergency-medical service; and
(ii) When using a communication system in an area that does not
automatically supply the caller's latitude and longitude information to
the 911 emergency dispatcher, the employer must post in a conspicuous
location at the worksite either:
(A) The latitude and longitude of the worksite; or
(B) Other location-identification information that communicates
effectively to employees the location of the worksite.
Note to paragraph (f)(2)(ii) of this section: The requirement
specified in paragraph (f)(2)(ii) of this section does not apply to
worksites with readily available telephone land lines that have 911
emergency service that automatically identifies the location of the
caller.
* * * * *
0
25. Amend Sec. 1926.55 by:
0
a. Revising paragraph (a);
0
b. Revising paragraph (c);
0
c. In appendix A:
0
i. Revising the heading;
0
ii. Removing the entry for "Coke Oven Emissions";
0
iii. Revising entries for "Asbestos"; "Talc (containing asbestos);
use asbestos limit"; "Tremolite, asbestiform"; Footnote 3; and the
footnote designated by a single asterisk;
0
iv. Removing Footnote 4 and the footnote designated by double
asterisks.
The revisions read as follows:
Sec. 1926.55 Gases, vapors, fumes, dusts, and mists.
(a) Permissible Exposure Limits. Employers must limit an employee's
exposure to any substance listed in Table A of this section in
accordance with the following:
(1) Substances with limits preceded by (C)--Ceiling Values. An
employee's exposure, as determined from breathing-zone air samples, to
any substance in Table A with a permissible exposure limit preceded by
(C) must at no time exceed the exposure limit specified for that
substance. If instantaneous monitoring is not feasible, then the
employer must assess the ceiling as a 15-minute time-weighted average
exposure that the employer cannot exceed at any time during the working
day.
(2) Other substances--8-hour Time Weighted Averages. An employee's
exposure, as determined from breathing-zone air samples, to any
substance in Table A with a permissible exposure limit not preceded by
(C) must not exceed the limit specified for that substance measured as
an 8-hour time-weighted average in any work shift.
* * * * *
(c) Paragraphs (a) and (b) of this section do not apply to the
exposure of employees to airborne asbestos, tremolite, anthophyllite,
or actinolite dust. Whenever any employee is exposed to airborne
asbestos, tremolite, anthophyllite, or actinolite dust, the
requirements of Sec. 1926.1101 of this title shall apply.
* * * * *
Table A to Sec. 1926.55--Permissible Exposure Limits for Airborne Contaminants
----------------------------------------------------------------------------------------------------------------
Skin
Substance CAS No. \d\ ppm \a\ mg/m3, b designation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Asbestos; see Sec. 1926.1101..................
* * * * * * *
Talc (containing asbestos); use asbestos limit;
see Sec. 1926.1101...........................
* * * * * * *
Tremolite, asbestiform; see Sec. 1926.1101....
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Footnotes
* * * * *
\3\ Use Asbestos Limit Sec. 1926.1101.
* * * * *
* An "X" designation in the "Skin Designation" column indicates
that the substance is a dermal hazard.
\a\ Parts of vapor or gas per million parts of contaminated air by
volume at 25 [deg]C and 760 torr.
\b\ Milligrams of substance per cubic meter of air. When entry is
in this column only, the value is exact; when listed with a ppm entry,
it is approximate.
* * * * *
\d\ The CAS number is for information only. Enforcement is based on
the substance name. For an entry covering more than one metal compound,
measured as the metal, the CAS number for the metal is given--not CAS
numbers for the individual compounds.
* * * * *
0
26. Revise Sec. 1926.64 to read as follows:
Sec. 1926.64 Process safety management of highly hazardous chemicals.
For requirements regarding the process safety management of highly
hazardous chemicals as it pertains to construction work, follow the
requirements in 29 CFR 1910.119 of this chapter.
Subpart E--Personal Protective and Life Saving Equipment
0
27. The authority citation for subpart E continues to read as follows:
Authority: 40 U.S.C. 3701 et seq.; 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), 5-
2002 (67 FR 65008), 5-2007 (72 FR 31160), 4-2010 (75 FR 55355), or
1-2012 (77 FR 3912), as applicable; and 29 CFR part 1911.
0
28. Revise paragraph (c) of Sec. 1926.95 to read as follows:
Sec. 1926.95 Criteria for personal protective equipment.
* * * * *
(c) Design and selection. Employers must ensure that all personal
protective equipment:
(1) Is of safe design and construction for the work to be
performed; and
(2) Is selected to ensure that it properly fits each affected
employee.
* * * * *
0
29. Revise paragraph (c) of Sec. 1926.104 to read as follows:
Sec. 1926.104 Safety belts, lifelines, and lanyards.
* * * * *
(c) Lifelines used on rock-scaling operations, or in areas where
the lifeline may be subjected to cutting or abrasion, shall be a
minimum of 7/8-inch wire core manila rope. For all other lifeline
applications, a minimum of 3/4-inch manila or equivalent, with a
minimum breaking strength of 5,000 pounds, shall be used.
* * * * *
Subpart G--Signs, Signals, and Barricades
0
30. The authority citation for subpart G continues to read as follows:
Authority: 40 U.S.C. 333; 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), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), 5-2007 (72 FR
31159), 4-2010 (75 FR 55355), or 1-2012 (77 FR 3912), as applicable;
and 29 CFR part 1911.
0
31. Revise paragraph (g) of Sec. 1926.200 to read as follows:
Sec. 1926.200 Accident prevention signs, devices, and tags.
* * * * *
(g) Traffic control signs and devices. (1) At points of hazard,
construction areas shall be posted with legible traffic control signs
and protected by traffic control devices.
(2) The design and use of all traffic control devices, including
signs, signals, markings, barricades, and other devices, for protection
of construction workers shall conform to Part VI of the MUTCD, 2009
Edition, including Revision 1 dated May 2012 and Revision 2 dated May
2012, FHWA (incorporated by reference, see Sec. 1926.6).
* * * * *
0
32. Revise paragraph (a) of Sec. 1926.201 to read as follows:
Sec. 1926.201 Signaling.
(a) Flaggers. Signaling by flaggers and the use of flaggers,
including warning garments worn by flaggers, shall conform to Part VI
of the Manual on Uniform Traffic Control Devices, 2009 Edition,
including Revision 1 dated May 2012 and Revision 2 dated May 2012, FHWA
(incorporated by reference, see Sec. 1926.6).
* * * * *
Sec. 1926.202 [Removed]
0
33. Remove Sec. 1926.202.
Sec. 1926.203 [Removed]
0
34. Remove Sec. 1926.203.
Subpart H--Materials Handling, Storage, Use, and Disposal
0
35. The authority citation for subpart H continues to read as follows:
Authority: 40 U.S.C. 3701; 29 U.S.C. 653, 655, 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), 4-2010 (75 FR 55355),
or 1-2012 (77 FR 3912), as applicable.
Section 1926.250 also issued under 29 CFR part 1911.
0
36. Revise paragraph (a)(2) of Sec. 1926.250 to read as follows:
Sec. 1926.250 General requirements for storage.
(a) * * *
(2) Employers must:
(i) Post the maximum safe load limits of the floors within
buildings and structures, in pounds per square foot, conspicuously in
all storage areas, except for floors or slabs on grade, and except that
employers need not post limits in detached single-family dwellings or
townhouses that are under construction; and
(ii) Ensure that loads on floors do not exceed the maximum safe
loads of the floors.
* * * * *
Subpart P--Excavations
0
37. The authority citation for subpart P is revised to read as follows:
Authority: Sec. 107, Contract Worker Hours and Safety Standards
Act (Construction Safety Act) (40 U.S.C. 333); Secs. 4, 6, 8,
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), or 1-2012 (77 FR
3912), as applicable.
0
38. Revise paragraph (j) of Sec. 1926.651 to read as follows:
Sec. 1926.651 Specific excavation requirements.
* * * * *
(j) Protection of employees from loose rock or soil. (1) Where
there is loose rock or soil on the excavation face, employers must use
scaling to remove the loose material; install protective barricades at
intervals as necessary on the face to stop and contain falling
material; or use other means that provide equivalent protection.
(2) Protection from excavated or other materials or equipment shall
be provided by placing and keeping excavated or other materials or
equipment at least 2 feet (.61 m) from the edge of excavations, or by
the use of retaining devices that are sufficient to prevent materials
or equipment from falling or rolling into excavations, or by a
combination of both if necessary.
* * * * *
Subpart S--Underground Construction, Caissons, Cofferdams, and
Compressed Air
0
39. The authority citation for subpart S continues to read as follows:
Authority: 40 U.S.C. 3701; 29 U.S.C. 653, 655, 657; and
Secretary of Labor's Orders 12- 71 (36 FR 8754), 8-76 (41 FR 25059),
9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 5-2007 (72 FR
31159), or 1-2012 (77 FR 3912), as applicable.
0
40. Revise paragraph (k)(10) of Sec. 1926.800 to read as follows:
Sec. 1926.800 Underground construction.
* * * * *
(k) * * *
(10)(i) Internal combustion engines, except diesel-powered engines
on mobile equipment, are prohibited underground.
(ii) Mobile diesel-powered equipment used underground in
atmospheres other than gassy operations purchased on or before [DATE OF
PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER] shall
(A) Comply with paragraph (k)(10)(iii); or
(B) Have been approved by MSHA under 30 CFR part 32 (formerly
Schedule 24) (1995), or be demonstrated by the employer to be fully
equivalent to such MSHA-approved equipment, and be operated in
accordance with that part. For purposes of this subsection, when an
applicable MSHA provision uses the term "mine," use the phrase
"underground construction site." (Each brake horsepower of a diesel
engine requires at least 100 cubic feet (28.32 m\3\) of air per minute
for suitable operation in addition to the air requirements for
personnel. Some engines may require a greater amount of air to ensure
that the allowable levels of carbon monoxide, nitric oxide, and
nitrogen dioxide are not exceeded.)
(iii) Mobile diesel-powered equipment used underground in
atmospheres other than gassy operations purchased after [DATE OF
PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER] shall comply with
MSHA provisions 30 CFR 57.5067, 75.1909, 75.1910, and 75.1911(a)
through (i) and shall be operated in accordance with those provisions.
For purposes of this subsection, when an applicable MSHA provision uses
the term "mine," use the phrase "underground construction site."
(Each brake horsepower of a diesel engine requires at least 100 cubic
feet (28.32 m\3\) of air per minute for suitable operation in addition
to the air requirements for personnel. Some engines may require a
greater amount of air to ensure that the allowable levels of carbon
monoxide, nitric oxide, and nitrogen dioxide are not exceeded.)
* * * * *
0
41. Revise paragraph (f)(1) of Sec. 1926.803 to read as follows:
Sec. 1926.803 Compressed Air.
* * * * *
(f) * * *
(1) Decompression to normal condition shall be in accordance with
the 1992 French Air and Oxygen decompression tables (incorporated by
reference, see Sec. 1926.6).
* * * * *
Appendix A to Subpart S of Part 1926 [Removed]
0
42. Remove appendix A to subpart S of part 1926.
Subpart W--Rollover Protective Structures; Overhead Protection
0
43. The authority citation for subpart W is revised to read as follows:
Authority: Section 3704 of the Contract Work Hours and Safety
Standards Act (40 U.S.C. 3701); Sections 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
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), or 1-2012 (77 FR
3912), as applicable.
0
44. Amend Sec. 1926.1000 by:
0
a. Revising the section heading;
0
b. Revising paragraphs (a) through (c).
The revisions read as follows:
Sec. 1926.1000 Scope.
(a) Coverage. This subpart applies to the following types of
material handling equipment: All rubber-tired, self-propelled scrapers,
rubber-tired front-end loaders, rubber-tired dozers, wheel-type
agricultural and industrial tractors, crawler tractors, crawler-type
loaders, and motor graders, with or without attachments, that are used
in construction work. This subpart also applies to compactors and
rubber-tired skid-steer equipment, with or without attachments,
manufactured after [EFFECTIVE DATE OF FINAL RULE], that are used in
construction work. This subpart does not apply to sideboom pipelaying
tractors.
(b) Equipment manufactured before [EFFECTIVE DATE OF FINAL RULE].
Material handling equipment described in paragraph (a) of this section
(excluding compactors and rubber-tired skid-steer equipment)
manufactured before [EFFECTIVE DATE OF FINAL RULE], shall be equipped
with rollover protective structures that meet the minimum performance
standards prescribed in Sec. 1926.1001(b), as applicable. Agricultural
and industrial tractors used in construction shall be equipped with
rollover protective structures that meet the minimum performance
standards prescribed in Sec. 1926.1002(b), as applicable. When
overhead protection is provided on agricultural and industrial
tractors, the overhead protection shall meet the minimum performance
standards prescribed in Sec. 1926.1003(b), as applicable.
(c) Equipment manufactured on or after [EFFECTIVE DATE OF FINAL
RULE]. Material handling machinery described in paragraph (a) of this
section manufactured on or after [EFFECTIVE DATE OF FINAL RULE], shall
be equipped with rollover protective structures that meet the minimum
performance standards prescribed in Sec. 1926.1001(c). Agricultural
and industrial tractors used in construction shall be equipped with
rollover protective structures that meet the minimum performance
standards prescribed in Sec. 1926.1002(c). When overhead protection is
provided on agricultural and industrial tractors, the overhead
protection shall meet the minimum performance standards prescribed in
Sec. 1926.1003(c).
* * * * *
0
45. Section 1926.1001 is revised to read as follows:
Sec. 1926.1001 Minimum performance criteria for rollover protective
structures for designated scrapers, loaders, dozers, graders, crawler
tractors, compactors, and rubber-tired skid steer equipment.
(a) General. This section prescribes minimum performance criteria
for roll-over protective structures (ROPS) for rubber-tired self-
propelled scrapers; rubber-tired front end loaders and rubber-tired
dozers; crawler tractors and crawler-type loaders, motor graders,
compactors, and rubber-tired skid steer equipment.
(b) Equipment manufactured before [EFFECTIVE DATE OF FINAL RULE].
For equipment listed in paragraph (a) of this section (excluding
compactors and rubber-tired skid steer equipment) manufactured before
[EFFECTIVE DATE OF FINAL RULE], the protective frames shall conform to
the following Society of Automotive Engineers Recommended Practices as
applicable: SAE J320a, Minimum Performance Criteria for Roll-Over
Protective Structure for Rubber-Tired, Self-Propelled Scrapers; SAE
J394, Minimum Performance Criteria for Roll-Over Protective Structure
for Rubber-Tired Front End Loaders and Rubber-Tired Dozers; SAE J395,
Minimum Performance Criteria for Roll-Over Protective Structure for
Crawler Tractors and Crawler-Type Loaders; SAE J396, Minimum
Performance Criteria for Roll-Over Protective Structure for Motor
Graders; and SAE J397-1969, Critical Zone Characteristics and
Dimensions for Operators of Construction and Industrial Machinery, as
applicable (each incorporated by reference, see Sec. 1926.6), or comply
with the consensus standard (ISO 3471-2008) listed in paragraph (c) of
this section.
(c) Equipment manufactured on or after [EFFECTIVE DATE OF FINAL
RULE]. For equipment listed in paragraph (a) of this section
manufactured on or after [EFFECTIVE DATE OF FINAL RULE], the protective
frames shall meet the test and performance requirements of the
International Organization for Standardization (ISO) standard ISO 3471-
2008 Earth-Moving Machinery--Roll-over protective structures--
Laboratory tests and performance requirements (incorporated by
reference, see Sec. 1926.6).
0
46. Amend Sec. 1926.1002 by:
0
a. Revising paragraphs (a) through (d);
0
b. Removing paragraphs (e) through (i);
0
c. Redesignating paragraphs (j)(1) and (2) as (e)(1) and (2),
respectively;
0
d. Removing paragraphs (j)(3) and (k).
The revisions read as follows:
Sec. 1926.1002 Protective frames (roll-over protective structures,
known as ROPS) for wheel-type agricultural and industrial tractors used
in construction.
(a) General. This section sets forth requirements for frames used
to protect operators of wheel-type agricultural and industrial tractors
used in construction work that will minimize the possibility of
operator injury resulting from accidental upsets during normal
operation. See paragraph (e) of this section for definitions of
agricultural and industrial tractors.
(b) Equipment manufactured before [EFFECTIVE DATE OF FINAL RULE].
For equipment manufactured before [EFFECTIVE DATE OF FINAL RULE], the
protective frames shall meet the test and performance requirements of
the Society of Automotive Engineers Standard J334a-1970, Protective
Frame Test Procedures and Performance Requirements and J168-1970,
Protective enclosures-test procedures and performance requirements, as
applicable (incorporated by reference, see Sec. 1926.6), or comply
with the consensus standard (ISO 5700-2013) listed in paragraph (c) of
this section.
(c) Equipment manufactured on or after [EFFECTIVE DATE OF FINAL
RULE]. For equipment manufactured on or after [EFFECTIVE DATE OF FINAL
RULE], the protective frames shall meet the test and performance
requirements of the International Organization for Standardization
(ISO) standard ISO 5700-2013, Tractors for agriculture and forestry--
Roll-over protective structures--static test method and acceptance
conditions (incorporated by reference, see Sec. 1926.6).
(d) For overhead protection requirements, see 29 CFR 1926.1003.
* * * * *
0
47. Section 1926.1003 is revised to read as follows:
Sec. 1926.1003 Overhead protection for operators of agricultural and
industrial tractors used in construction.
(a) General. This section sets forth requirements for overhead
protection used to protect operators of wheel-type agricultural and
industrial tractors used in construction work that will minimize the
possibility of operator injury resulting from overhead objects such as
flying or falling objection, and from the cover itself in the event of
accidental upset.
(b) Equipment manufactured before [EFFECTIVE DATE OF FINAL RULE].
When overhead protection is provided on wheel-type agricultural and
industrial tractors manufactured before [EFFECTIVE DATE OF FINAL RULE],
the overhead protection shall be designed and installed according to
the requirements contained in the test and performance requirements of
Society of Automotive Engineers Standard J167-1970, Protective Frame
with Overhead Protection-Test Procedures and Performance Requirements,
which pertains to overhead protection requirements (incorporated by
reference, see Sec. 1926.6) or comply with the consensus standard (ISO
3449-2005) listed in paragraph (c) of this section.
(c) Equipment manufactured on or after [EFFECTIVE DATE OF FINAL
RULE]. When overhead protection is provided on wheel-type agricultural
and industrial tractors manufactured on or after [insert effective date
of the final rule], the overhead protection shall be designed and
installed according to the requirements contained in the test and
performance requirements of the International Organization for
Standardization ("ISO") standard ISO 27850-2013, Tractors for
agriculture and forestry--Falling object protective structures--Test
procedures and performance requirements, which pertains to overhead
protection requirements (incorporated by reference, see Sec. 1926.6).
(d) Site clearing. In the case of machines to which 29 CFR 1926.604
(relating to site clearing) also applies, the overhead protection may
be either the type of protection provided in 29 CFR 1926.604, or the
type of protection provided by this section.
Appendix A to Subpart W of Part 1926 [Removed]
0
48. Remove appendix A to subpart W of part 1926.
Subpart Z--Toxic and Hazardous Substances
0
49. The authority citation for subpart Z continues to read as follows:
Authority: Section 107 of the Contract Work Hours and Safety
Standards Act (40 U.S.C. 3704); Sections 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
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
31160), 4-2010 (75 FR 55355), or 1-2012 (77 FR 3912) as applicable;
and 29 CFR part 1911.
Section 1926.1102 not issued under 29 U.S.C. 655 or 29 CFR part
1911; also issued under 5 U.S.C. 553.
0
50. Amend Sec. 1926.1101 by:
0
a. Revising paragraph (m)(2)(ii)(C);
0
b. Revising Appendix D;
0
c. Revising Appendix E;
0
d. Revising Appendix I, sections III and IV(iii).
The revisions read as follows:
Sec. 1926.1101 Asbestos.
* * * * *
(m) * * *
(2) * * *
(ii) * * *
(C) A physical examination directed to the pulmonary and
gastrointestinal systems, including a 14- by 17-inch or other
reasonably-sized standard film or digital posterior-anterior chest X-
ray to be administered at the discretion of the physician, and
pulmonary function tests of forced vital capacity (FVC) and forced
expiratory volume at one second (FEV(1)). Classification of all chest
X-rays shall be conducted in accordance with Appendix E to this
section.
* * * * *
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0
51. Revise paragraph (l)(4)(ii)(C) of Sec. 1926.1127 to read as
follows:
Sec. 1926.1127 Cadmium.
* * * * *
(l) * * *
(4) * * *
(ii) * * *
(C) A 14 inch by 17 inch or other reasonably-sized standard film or
digital posterior-anterior chest X-ray (after the initial X-ray, the
frequency of chest X-rays is to be determined by the examining
physician);
* * * * *
Sec. 1926.1129 [Removed and Reserved]
0
52. Remove and reserve Sec. 1926.1129.
Parts 1910, 1915, and 1926 [Amended]
0
53. In addition to the revisions and amendments set forth above, in 29
CFR parts 1910, 1915, and 1926, remove words and punctuation from the
following paragraphs and appendices as follows:
----------------------------------------------------------------------------------------------------------------
29 CFR
Words and punctuation to remove --------------------------------------------------------------------------
Part 1910 Part 1915 Part 1926
----------------------------------------------------------------------------------------------------------------
and social security number........... 1910.120(f)(8)(ii)(A).. 1915.1001(n)(3)(ii)(A). 1926.60(o)(5)(ii)(A)
1910.1001(m)(3)(ii)(A). 1915.1026(k)(4)(ii)(A). 1926.62(d)(5)
1910.1017(m)(1)........ 1926.62(n)(3)(ii)(A)
1910.1025(d)(5)........ 1926.62 App. B,
1910.1025(n)(3)(ii)(A). Sec. XII.
1910.1025 App. B,...... 1926.65(f)(8)(ii)(A)
Sec. XII............... 1926.1101(n)(3)(ii)(A)
1910.1026(m)(4)(ii)(A). 1926.1126(k)(4)(ii)(A)
1910.1028(k)(2)(ii)(A). 1926.1127(d)(2)(iv)
1910.1030(h)(1)(ii)(A). 1926.1153(j)(3)(ii)(A)
1910.1043(k)(2)(ii)(A).
1910.1044(p)(2)(ii)(a).
1910.1047(k)(3)(ii)(A).
1910.1048(o)(3)(i).....
1910.1048(o)(4)(ii)(D).
1910.1050(n)(5)(ii)(A).
1910.1051(m)(4)(ii)(A).
1910.1053(k)(3)(ii)(A).
social security numbers,............. 1910.1043(k)(1)(ii)(C).
1910.1048(o)(1)(vi)....
social security number,.............. 1910.1028(k)(1)(ii)(D).
1910.1050(n)(3)(ii)(D).
1910.1052(m)(2)(ii)(F).
1910.1052(m)(2)(iii)(C)
social security number............... 1910.1001(m)(1)(ii)(F).
1910.1047(k)(2)(ii)(F).
1910.1050(n)(4)(ii)(A).
1910.1051(m)(2)(ii)(F).
1910.1052(m)(3)(ii)(A).
social security number,.............. 1910.1018(q)(1)(ii)(D). 1915.1001(n)(2)(ii)(F). 1926.60(o)(4)(ii)(F)
1910.1018(q)(2)(ii)(A). 1915.1026(k)(1)(ii)(F). 1926.62(n)(1)(ii)(D)
1910.1025(n)(1)(ii)(D). 1926.62(n)(2)(ii)(A)
1910.1025(n)(2)(ii)(A). 1926.1101(n)(2)(ii)(F)
1910.1026(m)(1)(ii)(F). 1926.1126(k)(1)(ii)(F)
1910.1027(n)(1)(ii)(B). 1926.1127(n)(1)(ii)(B)
1910.1027(n)(3)(ii)(A). 1926.1127(n)(3)(ii)(A)
1910.1029(m)(1)(i)(a).. 1926.1153(j)(1)(ii)(G)
1910.1029(m)(2)(i)(a)..
1910.1044(p)(1)(ii)(d).
1910.1045(q)(2)(ii)(D).
1910.1053(k)(1)(ii)(G).
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2016-19454 Filed 10-3-16; 8:45 am]
BILLING CODE 4510-26-P
