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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

CFR Citation: 29 CFR Part 1910

Docket ID: [Docket No. OSHA-2007-0040]

RIN ID: RIN 1218-AC08

NOTICE: RULES

ACTION: Occupational safety and health standards:

DOCUMENT ACTION: Direct final rule.

SUBJECT CATEGORY: Updating OSHA Standards Based on National Consensus Standards

DATES: This direct final rule will become effective on March 13, 2008 unless significant adverse comment is received by January 14, 2008.

Comments to this direct final rule (including comments to the informationcollection (paperwork) determination described under the section titled SUPPLEMENTARY INFORMATION of this notice), hearing requests, and other information must be submitted by January 14, 2008. All submissions must bear a postmark or provide other evidence of the submission date. (See the following section titled ADDRESSES for methods you can use in making submissions.)
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DOCUMENT SUMMARY: In this direct final rule, the Agency is removing several references to consensus standards that have requirements that duplicate, or are comparable to, other OSHA rules; this action includes correcting a paragraph citation in one of these OSHA rules. The Agency also is removing a reference to American Welding Society standard A3.0 1969 (``Terms and Definitions'') in its generalindustry welding standards. This rulemaking is a continuation of OSHA's ongoing effort to update references to consensus and industry standards used throughout its rules.

SUMMARY: National consensus standards and industry standards; update,

SUPPLEMENTAL INFORMATION

Table of Contents
I. Direct Final Rulemaking
II. Background
III. Discussion of the Rulemaking
IV. Procedural Determinations

A. Legal Considerations

B. Final Economic Analysis and Regulatory Flexibility Act Certification

C. OMB Review Under the Paperwork Reduction Act of 1995

D. Federalism

E. StatePlan States

F. Unfunded Mandates Reform Act
List of Subjects for 29 CFR Part 1910
Authority and Signature
V. Amendment to Standards

I. Direct Final Rulemaking

An agency uses direct final rulemaking when it anticipates that a rule will be noncontroversial. Examples include minor substantive revisions to regulations and direct incorporations of mandates from new legislation, and, as in this rulemaking, eliminating references to industry or consensus standards. In direct final rulemaking, the agency will publish the direct final rule in the Federal Register, along with an identical proposed rule. The Federal Register notice states that the direct final rule will go into effect unless it receives a significant adverse comment within a specified period. If the agency receives any significant adverse comments, it withdraws the direct final rule and treats the comments as responses to the proposed rule.

For purposes of this direct final rule, a significant adverse comment is one that explains why the various amendments being made to OSHA's standards would be inappropriate. In determining whether a comment necessitates withdrawal of the direct final rule, the Agency will consider whether the comment raises an issue serious enough to warrant a substantive response in a noticeandcomment process. OSHA will not consider a comment recommending additional amendments to be a significant adverse comment unless the comment states why the direct final rule would be ineffective without the addition. If timely significant adverse comments are received, OSHA will publish a notice of significant adverse comment in the Federal Register withdrawing this direct final rule no later than March 13, 2008.

OSHA also is publishing a companion proposed rule along with this direct final rule. In the event OSHA withdraws the direct final rule because of significant adverse comment, the Agency will proceed with the rulemaking by addressing the comment and publishing a new final rule. If
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OSHA receives a significant adverse comment regarding some actions taken in this direct final rule, but not others, it may (1) finalize those actions that did not receive significant adverse comment, and (2) conduct further rulemaking under the companion proposed rule for the actions that received significant adverse comment. The comment period for the proposed rule runs concurrently with that of the direct final rule. Any comments received under the companion proposed rule will be treated as comments regarding the direct final rule. Likewise, significant adverse comments submitted to the direct final rule will be considered as comments to the companion proposed rule; the Agency will consider such comments in developing a subsequent final rule.

OSHA determined that the subject of this rulemaking is suitable for direct final rulemaking. First, OSHA's amendments to the standards do not compromise the safety of employees. As described below, these amendments will eliminate confusion and clarify employer obligations. Second, the amendments will not alter employers' substantive obligations under the existing OSHA standards and, therefore, will not result in additional costs to employers. For these reasons, OSHA does not anticipate receiving objections from the public.

II. Background

As discussed in a previous Federal Register notice (69 FR 68283), the Agency is undertaking a longterm project to update its standards to reflect the latest versions of consensus and industry standards. This project includes updating or revoking consensus standards incorporated by reference, and updating regulatory text of current rules that OSHA adopted directly from the language of outdated consensus and industry standards.

This longterm project also includes updating a number of OSHA standards adopted in part from outdated consensus standards, such as rulemakings to update 29 CFR part 1910, subpart S (``Electrical''), 29 CFR part 1926, subpart V (``Electric Power Transmission, and Distribution''), 29 CFR 1910.109 (``Explosives and Blasting Agents''), and 29 CFR part 1910, subpart D (``WalkingWorking Surfaces'').

In this direct final rule, which is another step in this longterm project, the Agency is performing two main actions. First, it is removing a number of references to outdated consensus standards that have requirements that duplicate, or are comparable to, the requirements specified by other OSHA rules. The Agency believes these references are unnecessary, and only confuse employers about their compliance obligations. Second, the Agency is removing a reference to American Welding Society (``AWS'') standard A3.01969 (``Terms and Definitions'') in OSHA's generalindustry welding standards. These actions are described more fully below.
III. Discussion of the Rulemaking
A. Removing or Replacing References to ``Duplicative'' Consensus Standards

In this direct final rule, the Agency is removing from its standards references to consensus standards that duplicate, or are comparable to, requirements found in other OSHA rules. For example, OSHA's standard regulating manlifts requires guardrails with toeboards to meet the requirements of ANSI 12.11967 (Safety Requirements for Floor and Wall Openings, Railings, and Toeboards). The provisions of this ANSI standard, however, are identical to the requirements found in 29 CFR 1910.23. Therefore, it is unnecessary for employers and employees to refer to the ANSI standardwhich is 40 years old and difficult to obtainwhen they could refer instead to another OSHA standard for the applicable requirements.

Some of these ``duplicative'' references are also incorporated into the OSHA standards as nonmandatory sources of information, rather than mandatory requirements. For example, the provisions of OSHA's ventilation standard (29 CFR 1910.94) specify requirements for spray finishing operations. See 29 CFR 1910.94(c). Some of these provisions crossreference requirements in 29 CFR 1910.107 relating to spray finishing and flammable and combustible liquids; they also include a nonmandatory reference to sections of a 1969 National Fire Protection Association (NFPA) standard for ``Spray Finishing Using Flammable and Combustible Materials.'' Paragraph (c)(1)(ii) of the OSHA's ventilation standard, for instance, states:

Spray booth. Spray booths are defined and described in Sec. 1910.107(a). (See sections 103, 104, and 105 of the Standard for Spray Finishing Using Flammable and Combustible Materials, NFPA No. 331969, which is incorporated by reference as specified in Sec. 1910.6).

The requirements in 29 CFR 1910.107(a) and Sections 103, 104, and 105 of NFPA No. 331969 are essentially identical. NFPA No. 331969 was the source standard for 29 CFR 1910.107, and OSHA referenced it to provide employers with additional, but nonmandatory, information on sprayfinishing operations. As the OSHA requirements and the NFPA provisions are virtually identical, and because the reference to the NFPA standard is nonmandatory, it is unnecessary to reference the NFPA provisions in the OSHA standard.

Retaining ``duplicative'' references is unnecessary, and may confuse the regulated community. In determining compliance obligations in OSHA standards that contain references to consensus standards, employers and employees must carefully examine the consensus standards to identify relevant provisions. Many of these consensus standards are difficult to locate. A number are over 30 years old, and, consequently, are no longer available for direct purchase from the standards development organizations that issued them. For example, employers must submit a special request to the NFPA library to obtain a copy of NFPA No. 331969 (mentioned in the previous paragraph), while ANSI Z48.154 and Z4854 (R 70), which address marking portable compressedgas cylinders, are no longer available from ANSI and must be obtained from other vendors. While consensus standards incorporated by reference in OSHA standards are available for inspection at the Agency's docket office in Washington, DC, its regional offices, and the National Archives and Records Administration, these venues are not convenient for many employers and employees. Referencing these outdated consensus standards places an unnecessary burden on employers and employees when comparable provisions are readily accessible in other OSHA standards that will enable them to ascertain compliance obligations.

Through this rulemaking, the Agency is removing references to the ``duplicative'' consensus standards altogether, or replacing them with crossreferences to the existing OSHA standards that have requirements that are essentially identical to the consensus standards. Table 1 below lists: the OSHA standards that reference the consensus standards; the designations and titles of the consensus standards referenced by these OSHA standards and the OSHA standards that are comparable to the consensus standards; the action the Agency is taking in this direct final rulemaking (e.g., removing the consensus standard); and any comments about this action.
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Table 1 Reference consensus standards and
OSHA standards comparable OSHA Action taken Comment standards
1910.68(b)(4) and (b)(8)(ii)......... ANSI A12.11967Safety Remove the reference to The provisions in the Requirements for Floor the ANSI standard in OSHA standard and the and Wall Openings, both OSHA standards. consensus standard are Railings, and identical. Toeboards.
1910.23................ 1910.94(b)(5)(i)(a).................. ANSI B7.11970Safety Remove the reference to The provisions in the Code for the Use, the ANSI standard and OSHA standard and the Care, and Protection replace it with a cite consensus standard are of Abrasive Wheels to 1910.215, Tables O identical. (Tables 5 and 6 1 and O9. contain structural
strength
specifications for
hoods).
1910.94(c)(1)(ii).................... NFPA No. 331969 Remove the reference to The provisions in the Standard for Spray the NFPA standard. OSHA standard and the Finishing Using consensus standard are Flammable and identical. In Combustible Materials addition, the (Sections 103, 104, reference to the and 105). consensus standard is 1910.107(a)............ nonmandatory. 1910.94(c)(3)(i)..................... NFPA No. 33196 Remove the reference to Except for section 301 Standard for Spray the NFPA standard. of the NFPA standard, Finishing Using the provisions in the Flammable and OSHA standard and the Combustible Materials NFPA standard are (Sections 301304, 306 identical. Section 301 310). of the NFPA standard 1910.107(b)(1)(b)(4) specifies that spray and (b)(6)(b)(10).. booths constructed of steel must use steel that is at least No. 18 gauge U.S., while 1910.107(b)(1) contains no such provision. However, both the OSHA standard and the NFPA standard require that spray booths be ``substantially constructed'' of steel. OSHA notes it is the usual and customary practice in the industry to use steel that is at least this thick. In addition, the reference to the consensus standard is nonmandatory. 1910.94(c)(3)(i)(a).................. NFPA No. 331969 Remove the reference to Except for a few minor Standard for Spray the NFPA standard. differences between Finishing Using the provisions of Flammable and Chapter 4 of the NFPA Combustible Materials standard and the (Section 310 and comparable OSHA Chapter 4). standard, the 1910.107(b)(10) and provisions in the OSHA (c).. standard and the consensus standard are identical. In addition, the reference to the consensus standard is nonmandatory. 1910.94(c)(3)(iii)................... NFPA No. 331969 Remove the reference to The provisions in the Standard for Spray the NFPA standard. OSHA standard and the Finishing Using consensus standard are Flammable and identical. In Combustible Materials addition, the (Sections 304 and 305). reference to the 1910.107(b)(4) and consensus standard is (b)(5).. nonmandatory. 1910.94(c)(3)(iii)(a)................ NFPA No. 331969 Remove the reference to The provisions in the Standard for Spray the NFPA standard. OSHA standard and the Finishing Using consensus standard are Flammable and identical. In Combustible Materials addition, the (Section 305). reference to the 1910.107(b)(5)......... consensus standard is nonmandatory. 1910.94(c)(5)(i)..................... NFPA No. 331969 Remove the reference to The provisions in the Standard for Spray the NFPA standard. OSHA standard and the Finishing Using consensus standard are Flammable and identical. In Combustible Materials addition, the (Chapter 5). reference to the 1910.107(d)............ consensus standard is nonmandatory. [[Page 71065]]
1910.94(c)(5)(iii)(e)................ ANSI Z9.11951Safety Remove the reference to OSHA could find no Code for Ventilation the ANSI standard. Section 8.3.21 in the and Operation of Open ANSI standard and, Surface Tanks (Section therefore, is removing 8.3.21). the nonmandatory 1910.94(c)(5)(iii)(e).. reference to ANSI Z9.1 1951 from 1910.94(c)(5)(iii)(e). 1910.103(b)(1)(i)(c), ANSI Z48.11954Method Remove the reference to The requirements in the .110(b)(5)(iii), and .111(e)(1). of Marking Portable the ANSI standard and OSHA standard and the Compressed Gas replace it with a cite consensus standard are Containers to Identify to paragraph virtually identical. the Material Contained (b)(1)(ii) of 1910.253. Paragraph 3.2 of the (Section 3 specifies ANSI standard requires the means for marking that, when practical, gas cylinders). ``the marking shall be 1910.253(b)(1)(ii)..... at the valve end and off the cylindrical part of the body,'' while 1910.253(b)(1)(ii) identifies the shoulder as the location for the marking (when practical); these requirements describe the same cylinder location. Also, paragraph 3.3 of the ANSI standard specifies the height of the lettering; 1910.253(b)(1)(ii) contains no specific height requirements. The Agency has determined that the ANSI provision is unnecessary because the OSHA standard requires that the markings be ``legible,'' which ensures that employees can accurately identify the contents of the cylinders. 1910.144(a)(1)(ii)................... ANSI A10.21944Safety Remove the reference to The OSHA standard and Code for Building the ANSI standard. the referenced Construction consensus standard (paragraph 1.6.2 have similar addresses the use of requirements. The OSHA red lights with standard requires that barricades). red lights be provided 1910.144(a)(1)(ii)..... ``at barricades and at temporary obstructions,'' while paragraph 1.6.2 of the referenced ANSI standard requires employers to place red lights or flares on or about barricades after dark. OSHA has determined that removing the reference to the 60year old ANSI standard is appropriate given the requirements of 1910.144(a)(1)(ii) and the usual and customary practice of the industry. [[Page 71066]]
1910.243(d)(1)(i).................... ANSI A10.31970Safety Remove the reference to The provisions in the Requirements for the ANSI standard and OSHA standard and the ExplosiveActuated replace it with a cite consensus standard are Fastening Tools to the design identical, except that (Section 3 specifies requirements specified paragraph (d)(2) of design requirements). by 1910.243(d)(2). 1910.243 does not 1910.243(d)(2)......... contain provisions for the construction of highvelocity tools, lowvelocity piston tools, and hammer operated piston tools specified in ANSI paragraphs 3.1.5, 3.2.5, and 3.3.5, respectivelyi.e., that these tools must have adequate strength to withstand the stresses imposed by any commercially available load that will chamber in the tool. These provisions do not relate directly to guarding explosive actuated tools, which is the purpose of the OSHA standard. Furthermore, OSHA notes it is the usual and customary practice in the industry to design tools with adequate strength to withstand the stresses imposed by commercially available loads. 1910.253(b)(1)(ii)................... ANSI Z48.11954Method Remove the reference to See the comments above of Marking Portable the ANSI standard. under the entry for Compressed Gas 1910.103(b)(1)(i)(c), Containers to Identify .110(b)(5)(iii), and the Material Contained. .111(e)(1). 1910.253(b)(1)(ii)..... 1910.261(c)(15)(ii), (e)(4), ANSI A12.11967Safety Remove the reference to The provisions in the (g)(13)(i), (h)(1), (j)(4)(iii), Requirements for Floor the ANSI standards in OSHA standard and (j)(5)(i), (k)(6), (k)(13)(i), and and Wall Openings, the OSHA standards and consensus standard are (k)(15). Railings, and replace them with a identical. Toeboards. cite to 1910.23. 1910.23................

The Agency believes that removing these consensus standards, or replacing them with crossreferences to other OSHA standards, will not alter existing compliance obligations or reduce employee protection. Employers need not alter their current practices as a result of this rulemaking action, and employees will receive the same level of protection they did prior to this rulemaking. The Agency welcomes comment from the public regarding the effects this rulemaking may have on employers' compliance obligations and employee protection. B. Technical Amendment

In addition to the actions described above, OSHA is amending paragraph (c)(1)(iv) of its sprayfinishing standard at 29 CFR 1910.107. This paragraph incorrectly refers to the requirements for powdercoating equipment in ``paragraph (c)(1) of this section.'' However, paragraph (l)(1) of 29 CFR 1910.107 specifies the requirements for powdercoating equipment. With this amendment, 29 CFR
1910.107(c)(1)(iv) will identify the correct provision for regulating powdercoating equipment.

C. Welding Definitions

In this direct final rule, OSHA also is removing the reference to American Welding Society (``AWS'') standard A3.01969 (``Terms and Definitions'') in paragraph (c) of 29 CFR 1910.251 (``Definitions''). Paragraph 29 CFR 1910.251(c) states ``All other welding terms are used in accordance with American Welding SocietyTerms and Definitions A3.01969, which is incorporated by reference as specified in Sec. 1910.6.'' The purpose of the definitions is to assist employers and employees in understanding the technical terms used in these OSHA standards; sections 29 CFR 1910.252255 specify the substantive obligations for employers to follow when performing welding, cutting, and brazing operations.

OSHA analyzed the terms defined in the 1969 AWS standard, as well as the terms defined in the 2001 version of that standard. (OSHA placed this analysis in the docket for this rulemaking as Ex. OSHA20070040 0002). Based on this analysis, the Agency determined that the terms defined in the 1969 AWS standard that are found in OSHA's welding standard are substantially similar to the definitions of these terms found in the 2001 AWS standard. Furthermore, the welding terms used are commonly understood in the industry. For example, some of the welding terms used are such basic technical terms as ``arc welding,'' ``electrode,'' ``flux,'' ``flash welding,'' ``lead burning,'' ``inert gas,'' and ``oxygen cutting.'' After over 35 years of experience with these terms, employers and employees performing welding, cutting, and brazing operations understand their meaning when applying the substantive requirements in 29 CFR 1910.2521910.255. Continuing to reference the 1969 AWS standard is unnecessary, and OSHA is removing it from 29 CFR 1910.251. Employers and employees know the meaning of the terms used in the OSHA standard, and requiring employers to obtain and consult AWS 3.01969 places an unnecessary burden on them.

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Removing the reference will not affect employers' substantive obligations under 29 CFR part 1910, subpart Q, nor will it compromise the safety of employees when they perform the welding, cutting, and brazing operations regulated under 29 CFR 1910.2521910.255. In fact, removing the reference will bring the general industry standard in line with the standards regulating welding, cutting, and heating operations for the shipyardemployment industry (29 CFR part 1915, subpart D) and welding and cutting operations for the construction industry (29 CFR part 1926, subpart J). These standards do not define the technical welding terms used. OSHA is not aware of any employeeprotection problems resulting from the absence of definitions in these standards. The Agency invites the public to comment on its findings regarding employers' obligations and employee safety.
IV. Procedural Determinations

A. Legal Considerations

The purpose of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., is ``to assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources.'' 29 U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary of Labor to promulgate and enforce occupational safety and health standards. 29 U.S.C. 655(b), 654(b). A safety or health standard is a standard that ``requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment or places of employment.'' 29 U.S.C. 652(8). A standard is reasonably necessary or appropriate within the meaning of Section 652(8) when a significant risk of material harm exists in the workplace and the standard would substantially reduce or eliminate that workplace risk.

This direct final rule will not reduce the employee protections put into place by the standards being amended. In fact, it will enhance employee safety by eliminating confusing requirements and clarifying employer obligations. Therefore, it is unnecessary to determine significant risk, or the extent to which the rule would reduce that risk, as typically would be required by Industrial Union Department, AFLCIO v. American Petroleum Institute, 448 U.S. 607 (1980). B. Final Economic Analysis and Regulatory Flexibility Act Certification

This direct final rule is not economically significant within the context of Executive Order (``E.O.'') 12866 (58 FR 51735) or a ``major rule'' under Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (``SBREFA''; 5 U.S.C. 804). The rule will impose no additional costs on any private or publicsector entity, and does not meet any of the criteria for an economically significant rule or a major rule specified by E.O. 12866 or the relevant statutes. (While not economically significant, as part of OSHA's consensus standards update project, this direct final rule is classified as a ``significant regulatory action'' under E.O. 12866.)

This action simply (1) removes, or replaces with crossreferences, unnecessary references to consensus standards, and (2) removes a reference to American Welding Society standard A3.01969 in OSHA's generalindustry welding standards. The rulemaking does not impose any additional costs on employers. Therefore, OSHA certifies that it will not have a significant impact on a substantial number of small entities, and that the Agency does not have to prepare a regulatory flexibility analysis for this rulemaking under the SBREFA (5 U.S.C. 601 et seq.).

C. OMB Review Under the Paperwork Reduction Act of 1995

The existing provisions of the OSHA standards addressed by this direct final rule do not contain collectionofinformation
requirements, nor do the amended provisions to the standards implemented by this rulemaking contain collectionofinformation requirements. Therefore, this direct final rule does not impose remove or revise any informationcollection requirements for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. and 5 CFR part 1320. Accordingly, the Agency does not have to prepare an Information Collection Request in association with this rulemaking.

Members of the public who wish to comment on these determinations must send their written comments to the Office of Information and Regulatory Affairs, Attn: OSHA Desk Officer (RIN 1218AC08), Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503. The Agency encourages commenters to also submit their comments to the rulemaking docket, along with their comments on other parts of the direct final rule. For instructions on submitting these comments and accessing the docket, see the sections of this Federal Register notice titled DATES and ADDRESSES. However, no comment received on this paperwork determination will be considered by the Agency to be a ``significant adverse comment'' as specified above under Section I (``Direct Final Rulemaking'').

To make inquiries, or to request other information, contact Mr. Todd Owen, Directorate of Standards and Guidance, OSHA, Room N3609, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 6932222.

D. Federalism

OSHA reviewed this direct final rule in accordance with the Executive Order on Federalism (Executive Order 13132, 64 FR 43255, August 10, 1999), which requires that Federal agencies, to the extent possible, refrain from limiting State policy options, consult with States prior to taking any actions that would restrict State policy options, and take such actions only when clear constitutional authority exists and the problem is national in scope. Executive Order 13132 provides for preemption of State law only with the expressed consent of Congress. Any such preemption is to be limited to the extent possible.

Under Section 18 of the Occupational Safety and Health Act of 1970 (``OSH Act''; 29 U.S.C. 651 et seq.), Congress expressly provides for the preemption of State laws when OSHA promulgates occupational safety and health standards. Under the OSH Act, a State can avoid preemption on issues covered by Federal standards only if it submits, and obtains Federal approval of, a plan for the development of such standards and their enforcement (``StatePlan State''). 29 U.S.C. 667. Occupational safety and health standards developed by StatePlan States must be at least as effective in providing safe and healthful employment and places of employment as the Federal standards. Subject to these requirements, StatePlan States are free to develop and enforce under State law their own requirements for safety and health standards.

This direct final rule complies with Executive Order 13132. In States without OSHAapproved State Plans, Congress expressly provides for OSHA standards to preempt State job safety and health rules in areas addressed by OSHA standards; in these States, this direct final rule limits State policy options in the same manner as all OSHA standards. In States with OSHAapproved State Plans, this rulemaking [[Page 71068]]
does not significantly limit State policy options.

E. StatePlan States

When Federal OSHA promulgates a new standard or more stringent amendment to an existing standard, the 26 States and U.S. Territories with their own OSHAapproved occupational safety and health plans (``StatePlan States'') must amend their standards to reflect the new standard or amendment, or show OSHA why such action is unnecessary, e.g., because an existing State standard covering this area is ``at least as effective'' as the new Federal standard or amendment. 29 CFR 1953.5(a). The State standard must be at least as effective as the final Federal rule, must be applicable to both the private and public (State and local government employees) sectors, and must be completed within six months of the publication date of the final Federal rule. When OSHA promulgates a new standard or amendment that does not impose additional or more stringent requirements than an existing standard, StatePlan States are not required to amend their standards, although the Agency may encourage them to do so. The 26 States and U.S. Territories with OSHAapproved occupational safety and health plans are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming; Connecticut, New Jersey, New York, and the Virgin Islands have OSHAapproved State Plans that apply to State and local government employees only.

With regard to this direct final rule, it will not impose any additional or more stringent requirements on employers compared to existing OSHA standards. Through this rulemaking, the Agency is removing several references to consensus standards that contain requirements that also are expressly included in other OSHA standards. The Agency also is removing a reference to an American Welding Society standard. Therefore, States and Territories with approved StatePlans do not need to adopt this rule or show OSHA why such action is unnecessary. However, to the extent these States and Territories have the same standards as the OSHA standards affected by this direct final rule, OSHA encourages them to adopt the amendments.

F. Unfunded Mandates Reform Act

OSHA reviewed this direct final rule according to the Unfunded Mandates Reform Act of 1995 (``UMRA''; 2 U.S.C. 1501 et seq.) and Executive Order 12875 (58 FR 58093). As discussed above in Section IV.B (``Economic Analysis and Regulatory Flexibility Certification'') of this preamble, the Agency determined that this direct final rule imposes no additional costs on any private or publicsector entity. Accordingly, this direct final rule requires no additional expenditures by either public or private employers.

As noted above under Section IV.E (``StatePlan States''), the Agency's standards do not apply to State and local governments except in States that have elected voluntarily to adopt a State Plan approved by the Agency. Consequently, this direct final rule does not meet the definition of a ``Federal intergovernmental mandate'' (see Section 421(5) of the UMRA (2 U.S.C. 658(5))). Therefore, for the purposes of the UMRA, the Agency certifies that this direct final rule does not mandate that State, local, or tribal governments adopt new, unfunded regulatory obligations, or increase expenditures by the private sector of more than $100 million in any year.

List of Subjects for 29 CFR Part 1910

General industry, Health, Occupational safety and health, Safety, Welding.

Authority and Signature

Edwin G. Foulke, Jr., Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, directed the preparation of this direct final rule. The Agency is issuing this rule under Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), Secretary of Labor's Order 52007 (72 FR 31159), and 29 CFR part 1911.

Signed at Washington, DC, on Friday, December 7, 2007. Edwin G. Foulke, Jr.,
Assistant Secretary of Labor for Occupational Safety and Health. V. Amendments to Standards
For the reasons stated in the preamble, OSHA is amending 29 CFR part 1910 to read as follows:
PART 1910[AMENDED]
Subpart A[Amended]
1. Revise the authority citation for subpart A of part 1910 to read as follows:

Authority: Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 1271 (36 FR 8754), 876 (41 FR 25059), 983 (48 FR 35736), 190 (55 FR 9033), 696 (62 FR 111), 32000 (65 FR 50017), or 52007 (72 FR 31159), as applicable.

Section 1910.6 also issued under 5 U.S.C. 553. Sections 1910.6, 1910.7, and 1910.8 also issued under 29 CFR Part 1911. Section 1910.7(f) also issued under 31 U.S.C. 9701, 29 U.S.C. 9a, 5 U.S.C. 553; Pub. L. 106113 (113 Stat. 1501A222); and OMB Circular A25 (dated July 8, 1993) (58 FR 38142, July 15, 1993).
2. In Sec. 1910.6:
a. Remove and reserve paragraphs (e)(1), (e)(2), (e)(5), (e)(62), and (e)(63), and (i)(1).; and
b. Revise paragraphs (e)(15), (e)(49), and (q)(3) to read as follows: Sec. 1910.6 Incorporation by reference.
* * * * *
(e) * * *
(15) ANSI B7.170 Safety Code for the Use, Care and Protection of Abrasive Wheels, IBR approved for Sec. Sec. 1910.215(b)(12) and 1910.218(j).
* * * * *
(49) ANSI Z9.151 Safety Code for Ventilation and Operation of Open Surface Tanks, IBR approved for 1910.261(a)(3)(xix), (g)(18)(v), and (h)(2)(i).
* * * * *
(q) * * *
(3) NFPA 331969 Standard for Spray Finishing Using Flammable and Combustible Material, IBR approved for Sec. 1910.94(c)(2). * * * * *
Subpart F[Amended]
34. Revise the authority citation for subpart F of part 1910 to read as follows:

Authority: Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 1271 (36 FR 8754), 876 (41 FR 25059), 983 (48 FR 35736), 190 (55 FR 9033), or 52007 (72 FR 31159), as applicable; and 29 CFR Part 1911.
5. Revise paragraphs (b)(4) and (b)(8)(ii) of Sec. 1910.68 to read as follows:
Sec. 1910.68 Manlifts.
* * * * *
(b) * * *
(4) Reference to other codes and subparts. The following codes and subparts of this part are applicable to this section: Safety Code for Mechanical Power Transmission Apparatus, ANSI B15.11953 (R 1958); Safety Code for Fixed Ladders, ANSI A14.31956; and subparts D, O, and S. The preceding ANSI standards are incorporated by reference as specified in Sec. 1910.6.
* * * * *
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(8) * * *
(ii) Construction. The rails shall be standard guardrails with toeboards meeting the provisions of Sec. 1910.23.
* * * * *
Subpart G[Amended]
6. Revise the authority citation for subpart G of part 1910 to read as follows:

Authority: Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 1271 (36 FR 8754), 876 (41 FR 25059), 983 (48 FR 35736), 190 (55 FR 9033), 696 (62 FR 111), or 52007 (72 FR 31159), as applicable; and 29 CFR Part 1911.

Section 1910.94 also issued under 5 U.S.C. 553.
7. Revise paragraphs (b)(5)(1)(a), (c)(1)(ii), (c)(3)(i) introductory text, (c)(3)(i)(a), (c)(3)(iii) introductory text, (c)(3)(iii)(a), (c)(5)(i) introductory text, and (c)(5)(iii)(e) of Sec. 1910.94 to read as follows:
Sec. 1910.94 Ventilation.
* * * * *
(b) * * *
(5) * * *
(i)(a) It is the dual function of grinding and abrasive cuttingoff wheel hoods to protect the operator from the hazards of bursting wheels, as well as to provide a means for the removal of dust and dirt generated. All hoods shall be not less in structural strength than specified in Tables O1 and O9 of Sec. 1910.215.
* * * * *
(c) * * *
(1) * * *
(ii) Spray booth. Spray booths are defined and described in Sec. 1910.107(a).
* * * * *
(3) * * *
(i) Spray booths shall be designed and constructed in accordance with Sec. 1910.107(b)(1) through (b)(4) and (b)(6) through (b)(10). For a more detailed discussion of fundamentals relating to this subject, see ANSI Z9.21960, which is incorporated by reference as specified in Sec. 1910.6.
(a) Lights, motors, electrical equipment, and other sources of ignition shall conform to the requirements of Sec. 1910.107(b)(10) and (c).
* * * * *
(iii) Baffles, distribution plates, and drytype overspray collectors shall conform to the requirements of Sec. 1910.107(b)(4) and (b)(5).
(a) Overspray filters shall be installed and maintained in accordance with the requirements of Sec. 1910.107(b)(5), and shall only be in a location easily accessible for inspection, cleaning, or replacement.
* * * * *
(5) * * *
(i) Ventilation shall be provided in accordance with provisions of Sec. 1910.107(d), and in accordance with the following:
* * * * *
(iii) * * *
(e) Inspection or cleanout doors shall be provided for every 9 to 12 feet of running length for ducts up to 12 inches in diameter, but the distance between cleanout doors may be greater for larger pipes. A cleanout door or doors shall be provided for servicing the fan, and where necessary, a drain shall be provided.
* * * * *
Subpart H[Amended]
8. Revise the authority citation for subpart H of part 1910 to read as follows:

Authority: Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 1271 (36 FR 8754), 876 (41 FR 25059), 983 (48 FR 35736), 190 (55 FR 9033), 696 (62 FR 111), 32000 (65 FR 50017), or 52007 (72 FR 31159), as applicable; and 29 CFR part 1911.

Sections 1910.103, 1910.106 through 1910.111, and 1910.119, 1910.120, and 1910.122 through 1910.126 also issued under 29 CFR part 1911.

Section 1910.119 also issued under Section 304, Clean Air Act Amendments of 1990 (Pub. L. 101549), reprinted at 29 U.S.C. 655 Note.

Section 1910.120 also issued under Section 126, Superfund Amendments and Reauthorization Act of 1986 as amended (29 U.S.C. 655 Note), and 5 U.S.C. 553.
9. Revise paragraph (b)(1)(i)(C) of Sec. 1910.103 to read as follows: Sec. 1910.103 Hydrogen.
* * * * *
(b) * * *
(1) * * *
(i) * * *
(c) Each portable container shall be legibly marked with the name ``Hydrogen'' in accordance with the marking requirements set forth in Sec. 1910.253(b)(1)(ii). Each manifolded hydrogen supply unit shall be legibly marked with the name ``Hydrogen'' or a legend such as ``This unit contains hydrogen.''
* * * * *
10. Revise paragraph (c)(1)(iv) of Sec. 1910.107 to read as follows: Sec. 1910.107 Spray finishing using flammable and combustible materials.
* * * * *
(c) * * *
(1) * * *
* * * * *
(vi) Powdercoating equipment shall conform to the requirements of paragraph (l)(1) of this section.
* * * * *
11. Amend paragraph (b)(5)(iii) of Sec. 1910.110 to read as follows: Sec. 1910.110 Storage and handling of liquid petroleum gases. * * * * *
(b) * * *
(5) * * *
(iii) When LPGas and one or more other gases are stored or used in the same area, the containers shall be marked to identify their content. Marking shall conform to the marking requirements set forth in Sec. 1910.253(b)(1)(ii).
* * * * *
12. Revise paragraph (e)(1) of Sec. 1910.111 to read as follows: Sec. 1910.111 Storage and handling of anhydrous ammonia.
* * * * *
(e) * * *
(1) Conformance. Cylinders shall comply with DOT specifications and shall be maintained, filled, packaged, marked, labeled, and shipped to comply with 49 CFR chapter I and the marking requirements set forth in Sec. 1910.253(b)(1)(ii).
* * * * *
Subpart J[Amended]
13. Revise the authority citation for subpart J of part 1910 to read as follows:

Authority: Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 1271 (36 FR 8754), 876 (41 FR 25059), 983 (48 FR 35736), 190 (55 FR 9033), 696 (62 FR 111), 32000 (65 FR 50017), or 52007 (72 FR 31159), as applicable.

Sections 1910.141, 1910.142, 1910.145, 1910.146, and 1910.147 also issued under 29 CFR part 1911.
14. Revise paragraph (a)(1)(ii) of Sec. 1910.144 to read as follows: Sec. 1910.144 Safety color code for marking physical hazards. (a) * * *
(1) * * *
(ii) Danger. Safety cans or other portable containers of flammable liquids having a flash point at or below 80[deg] F, table containers of flammable liquids (open cup tester), excluding shipping containers, shall be painted red with some additional clearly visible
identification either in the form of a
[[Page 71070]]
yellow band around the can or the name of the contents conspicuously stenciled or painted on the can in yellow. Red lights shall be provided at barricades and at temporary obstructions. Danger signs shall be painted red.
* * * * *
Subpart P[Amended]
15. Revise the authority citation for subpart P of part 1910 to read as follows:

Authority: Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 1271 (36 FR 8754), 876 (41 FR 25059), 983 (48 FR 35736), 190 (55 FR 9033), or 52007 (72 FR 31159), as applicable; 29 CFR part 1911.

Section 1910.243 also issued under 29 CFR part 1910. 16. Revise paragraph (d)(1)(i) of Sec. 1910.243 to read as follows: Sec. 1910.243 Guarding of portable powered tools.
* * * * *
(d) * * *
(1) * * *
(i) Explosiveactuated fastening tools that are actuated by explosives or any similar means, and propel a stud, pin, fastener, or other object for the purpose of affixing it by penetration to any other object shall meet the design requirements specified by paragraph (d)(2) of this section. This requirement does not apply to devices designed for attaching objects to soft construction materials, such as wood, plaster, tar, dry wallboard, and the like, or to studwelding equipment.
* * * * *
Subpart Q[Amended]
17. Revise the authority citation for subpart Q of part 1910 to read as follows:

Authority: Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, and 657); Secretary of Labor's Orders Nos. 1271 (36 FR 8754), 876 (41 FR 25059), 983 (48 FR 35736), 190 (55 FR 9033), 696 (62 FR 111), 32000 (65 FR 50017), or 52007 (72 FR 31159), as applicable; and 29 CFR part 1911.
Sec. 1910.251 [Amended]
18. Remove paragraph (c) of Sec. 1910.251.
19. Revise paragraph (b)(1)(ii) of Sec. 1910.253 to read as follows: Sec. 1910.253 Oxygenfuel gas welding and cutting.
* * * * *
(b) * * *
(1) * * *
(ii) Compressed gas cylinders shall be legibly marked, for the purpose of identifying the gas content, with either the chemical or the trade name of the gas. Such marking shall be by means of stenciling, stamping, or labeling, and shall not be readily removable. Whenever practical, the marking shall be located on the shoulder of the cylinder.
* * * * *
Subpart R[Amended]
20. Revise the authority citation for subpart R of part 1910 to read as follows:

Authority: Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order Nos. 1271 (36 FR 8754), 876 (41 FR 25059), 983 (48 FR 35736), 190 (55 FR 9033), 696 (62 FR 111), or 52007 (72 FR 31159), as applicable; and 29 CFR part 1911.
21. Revise paragraphs (c)(15)(ii), (e)(4), (g)(13)(i), (h)(1), (j)(4)(iii), (j)(5)(i), (k)(6), (k)(13)(i), and (k)(15) of Sec. 1910.261 to read as follows:
Sec. 1910.261 Pulp, paper, and paperboard mills.
* * * * *
(c) * * *
(15) * * *
(ii) Where conveyors cross passageways or roadways, a horizontal platform shall be provided under the conveyor extending out from the sides of the conveyor a distance equal to 1.5 times the length of the wood handled. The platform shall extend the width of the road plus 2 feet on each side, and shall be kept free of wood and rubbish. The edges of the platform shall be provided with toeboards or other protection to prevent wood from falling, in accordance with Sec. 1910.23.
* * * * *
(e) * * *
(4) Runway to the jack ladder. The runway from the pond or unloading dock to the table shall be protected with standard handrails and toeboards. Inclined portions shall have cleats or equivalent nonslip surfacing in accordance with Sec. 1910.23. Protective equipment shall be provided for persons working over water. * * * * *
(g) * * *
(13) * * *
(i) Blowpit openings shall be preferably on the side of the pit instead of on top. When located on top, openings shall be as small as possible and shall be provided with railings in accordance with Sec. 1910.23.
* * * * *
(h) * * *
(1) Bleaching engines. Bleaching engines, except the Bellmer type, shall be completely covered on the top, with the exception of one small opening large enough to allow filling, but too small to admit a person. Platforms leading from one engine to another shall have standard guardrails in accordance with Sec. 1910.23.
* * * * *
(j) * * *
(4) * * *
(iii) When beaters are fed from a floor above, the chute opening, if less than 42 inches from the floor, shall be provided with a complete rail or other enclosure. Openings for manual feeding shall be sufficient only for entry of stock, and shall be provided with at least two permanently secured crossrails in accordance with Sec. 1910.23. * * * * *
(5) * * *
(i) All pulpers having the top or any other opening of a vessel less than 42 inches from the floor or work platform shall have such openings guarded by railed or other enclosures. For manual charging, openings shall be sufficient to permit the entry of stock, and shall be provided with at least two permanently secured crossrails in accordance with Sec. 1910.23.
* * * * *
(k) * * *
(6) Steps. Steps of uniform rise and tread with nonslip surfaces shall be provided at each press in accordance with Sec. 1910.23. * * * * *
(13) * * *
(i) A guardrail shall be provided at broke holes in accordance with Sec. 1910.23.
* * * * *
(15) Steps. Steps or ladders of uniform rise and tread with nonslip surfaces shall be provided at each calendar stack. Handrails and hand grips shall be provided at each calendar stack in accordance with Sec. 1910.23.
* * * * *
[FR Doc. E724181 Filed 121307; 8:45 am]
BILLING CODE 451026P

FOR FURTHER INFORMATION CONTACT For general information and press inquiries contact Mr. Kevin Ropp, Director, OSHA Office of Communications, Room N3647, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 6931999. For technical inquiries, contact Ted Twardowski, Office of Safety Systems, Directorate of Standards and Guidance, Room N3609, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 6932070; fax: (202) 6931663. Copies of this Federal Register notice are available from the OSHA Office of Publications, Room N3101, U.S. Department of Labor, 200 Constitution Avenue, NW. Washington, DC 20210; telephone (202) 6931888. Electronic copies of this Federal Register notice, as well as news releases and other relevant documents, are available at OSHA's Web page at http://www.osha.gov .