68706 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Proposed Rules 

DEPARTMENT OF LABOR

Occupational Safety and Health 

Administration 

29 CFR Part 1910 

[Docket No. S–023A] 

RIN 1218–AC08 

Updating OSHA Standards Based on 

National Consensus Standards; 

General, Incorporation by Reference; 

Hazardous Materials, Flammable and 

Combustible Liquids; General 

Environmental Controls, Temporary 

Labor Camps; Hand and Portable 

Powered Tools and Other Hand Held 

Equipment, Guarding of Portable 

Powered Tools; Welding, Cutting, and 

Brazing, Arc Welding and Cutting; 

Special Industries, Sawmills

AGENCY: Occupational Safety and Health 

Administration (OSHA); Labor.

ACTION: Notice of proposed rulemaking.

SUMMARY: OSHA is issuing this notice of 

proposed rulemaking to delete three 

references to national consensus 

standards and two references to 

industry standards that are outdated. 

Deleting these references will not 

reduce employee protections. By 

eliminating the outdated references, 

however, OSHA will clarify employer 

obligations under the applicable OSHA 

standards and reduce administrative 

burdens on employers and OSHA. 

These revisions are part of an overall 

effort—also explained in today’s 

Federal Register—to update OSHA 

standards that reference, or that include 

language taken directly from, outdated 

consensus standards.

DATES: Comments and requests for an 

informal public hearing must be 

submitted by the following dates:

• Hard copy: Your comments or 

hearing requests must be submitted 

(postmarked or sent) by December 27, 

2004. 

• Electronic transmission and 

facsimile: Your comments or hearing 

requests must be sent by December 27, 

2004.

ADDRESSES: You may submit written 

comments or hearing requests to this 

proposed rule—identified by docket 

number S–023A or RIN number 1218–

AC08—by any of the following methods: 

• Federal eRulemaking Portal: http://

www. regulations. gov. Follow the 

instructions for submitting comments. 

• OSHA Web site: http://

ecomments.osha.gov. Follow the 

instructions for submitting comments 

on OSHA’s web page. 

• Fax: If your written comments are 

10 pages or fewer, you may fax them to 

the OSHA Docket Office at (202) 693–

1648. 

• Regular mail, express delivery, 

hand delivery and courier service: 

Submit three copies to the OSHA 

Docket Office, Docket No. S–023A, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Room N–2625, 

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., EST. 

Instructions: All comments received 

will be posted without change to http:/

/dockets.osha.gov, including any 

personal information provided. OSHA 

cautions you about submitting personal 

information such as social security 

numbers and birth dates. 

OSHA requests comments on all 

issues related to this action. OSHA also 

welcomes comments on the Agency’s 

findings that there are not negative 

economic or other regulatory impacts of 

this action on the regulated community. 

If OSHA receives no significant adverse 

comment on the direct final rule, OSHA 

will publish a Federal Register

document confirming its effective date 

and withdrawing this proposal. Such 

confirmation may include minor 

stylistic or technical changes to the 

revisions. For the purpose of judicial 

review, OSHA views the date of 

confirmation of the effective date of the 

direct final rule as the date of issuance. 

If OSHA receives significant adverse 

comment on the direct final rule, it will 

withdraw that rule and proceed with 

this proposed rule. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http://

dockets.osha.gov. Contact the OSHA 

Docket Office for information about 

materials not available through the 

OSHA webpage and for assistance in 

using the webpage to locate docket 

submissions.

FOR FURTHER INFORMATION CONTACT: For 

general information and press inquiries 

contact George Shaw, Acting Director, 

OSHA Office of Communications, Room 

N–3647, U.S. Department of Labor, 200 

Constitution Avenue, NW., Washington, 

DC 20210; telephone: (202) 693–1999. 

For technical inquiries, contact Ted 

Twardowski, Directorate of Standards 

and Guidance, Room N–3609, OSHA, 

U.S. Department of Labor, 200 

Constitution Avenue, NW., Washington, 

DC 20210; telephone: (202) 693–2070 or 

fax (202) 693–1663. Copies of this 

Federal Register notice are available 

from the OSHA Office of Publications, 

Room N–3101, U.S. Department of 

Labor, 200 Constitution Avenue, N.W., 

Washington, DC 20210; telephone: (202) 

693–1888. Electronic copies of this 

Federal Register notice, as well as news 

releases and other relevant documents, 

are available at OSHA’s webpage at 

http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents 

I. Direct Final Rulemaking 

II. Discussion of Revocations 

III.Legal Considerations 

IV. Preliminary Economic Analysis and 

Regulatory Flexibility Act Certification 

V. Paperwork Reduction Act 

VI. Federalism 

VII. State Plan States 

VIII. Unfunded Mandates Reform Act 

IX. Authority and Signature

I. Direct Final Rulemaking 

This notice of proposed rulemaking is 

being published on the same day as a 

companion direct final rule, which is 

essentially identical to this proposal. In 

direct final rulemaking, an agency 

publishes a final rule in the Federal 

Register with a statement that, unless a 

significant adverse comment is received 

within a specified period of time, the 

rule will go into effect. An identical 

proposed rule is often published at the 

same time. If any significant adverse 

comments are received, the agency 

withdraws the direct final rule and 

treats the comments as responses to the 

proposed rule. Direct final rulemaking is 

used where an agency anticipates that a 

rule will be non-controversial. Examples 

include minor substantive changes to 

regulations and direct incorporations of 

mandates from new legislation.

For purposes of this direct final 

rulemaking, a significant adverse 

comment is one that explains why the 

revocations would be inappropriate, 

including challenges to OSHA’s 

underlying premise or approach. In 

determining whether a comment 

necessitates withdrawal of the direct 

final rule, OSHA will consider whether 

the comment raises an issue serious 

enough to warrant a substantive 

response in a notice-and-comment 

process. A comment recommending 

additional changes will not be 

considered a significant adverse 

comment unless the comment states 

why the direct final rule would be 

ineffective without the addition. If 

timely significant adverse comments are 

received, the Agency will publish a 

notice of significant adverse comment in 

the Federal Register withdrawing the 

direct final rule no later than February 

22, 2005. 

In the event the direct final rule is 

withdrawn because of significant 

adverse comment, OSHA intends to 

proceed with the rulemaking by 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Proposed Rules 68707

1The two industry standards OSHA is proposing 

to revoke—American Petroleum Institute Standards 

No. 12A, Specification for Oil Storage Tanks with 

Riveted Shells, Seventh Edition, September 1951 

and Recommended Safe Practices for Gas-Shielded 

Arc Welding, A6.1–1966, American Welding 

Society—are incorporated by reference in OSHA 

standards on Flammable and Combustible Liquids 

and Welding, Cutting, and Brazing, respectively. 

These two industry standards were adopted by the 

Agency because they were cited in two national 

consensus standards (NFPA 30–1969 and ANSI Z–

49.1–1967) that served as sources for the OSHA 

standards.

addressing the comment and publishing 

a new final rule. If a significant adverse 

comment is received regarding certain 

revocations included in the direct final 

rule, but not others, OSHA may (1) 

finalize those revocations that did not 

receive significant adverse comment, 

and (2) conduct further rulemaking 

under the proposed rule for the 

proposed revocations that did receive 

significant adverse comment. The 

comment period for the proposed rule 

runs concurrently with that of the direct 

final rule. Any significant adverse 

comment received under the companion 

direct final rule will be treated as 

comments regarding the proposed rule. 

OSHA has determined that the subject 

of this rulemaking is suitable for direct 

final rulemaking. First, OSHA’s changes 

do not compromise the safety of 

employees. As described below, OSHA’s 

changes will eliminate confusion and 

clarify employer obligations; as such, 

they will enhance employee safety. 

Second, OSHA’s changes will result in 

no additional costs to employers, and 

may even produce cost savings. Third, 

OSHA’s changes are non-controversial. 

By revoking the references to the 

outdated consensus/industry standards, 

OSHA is updating its requirements in a 

manner that is consistent with current 

safety practices and does not reduce the 

safety of employees. 

II. Discussion of Revocations 

As explained elsewhere in today’s 

Federal Register, OSHA is undertaking 

a series of regulatory projects to update 

its standards to reflect the current 

versions of consensus standards. These 

regulatory projects will include 

updating or revoking consensus 

standards incorporated by reference, 

and updating regulatory text of current 

OSHA rules that were adopted directly 

from the language of outdated 

consensus standards. This direct final 

rulemaking is just the first step in 

OSHA’s long-term effort to update or 

revoke references to outdated consensus 

standards. 

In this document OSHA is proposing 

to revoke references to three national 

consensus standards and two industry 

standards.1 All of the references are to 

standards issued over 35 years ago, and 

in one case over 60 years ago. Some are 

no longer available to the public 

through the issuing Standards 

Development Organization (SDO). Three 

of the references have been withdrawn 

by their issuing SDOs and not replaced. 

The reasons for OSHA’s decision to 

revoke each of these references are set 

forth below.

The Agency has determined that 

revoking these references will not 

reduce employee protection. OSHA has 

made sure that employee protections are 

maintained with respect to each OSHA 

standard affected. 

1. 29 CFR 1910.106(b)(1)(iii)(a)(2) 

OSHA’s standard for Flammable and 

Combustible Liquids, 29 CFR 1910.106, 

incorporates by reference an industry 

standard that has been withdrawn by 

the issuing SDO and is no longer 

available to the public through the 

issuing SDO. Existing 

1910.106(b)(1)(iii)(a) reads in pertinent 

part as follows:

(iii) Atmospheric tanks. (a) Atmospheric 

tanks shall be built in accordance with 

acceptable good standards of design. 

Atmospheric tanks may be built in 

accordance with the following consensus 

standards that are incorporated by reference 

as specified in § 1910.6:

* * * * *

(2) American Petroleum Institute Standards 

No. 12A, Specification for Oil Storage Tanks 

with Riveted Shells, Seventh Edition, 

September 1951, or No. 650, Welded Steel 

Tanks for Oil Storage, Third Edition, 1966.

OSHA is proposing to delete the 

reference to American Petroleum 

Institute Standard No. 12A, 

Specification for Oil Storage Tanks with 

Riveted Shells, Seventh Edition, 

September 1951 (API 12A) in 

1910.106(b)(1)(iii)(a)(2). 

API 12A includes design 

specifications for tanks with riveted 

shells used for oil storage. OSHA 

incorporated API 12A into 29 CFR 

1910.106 because it was referenced in 

NFPA 30–1969, which served as one of 

the sources for the standard. API 12A 

was withdrawn in 1974. The issuing 

SDO has not replaced it and has not 

incorporated its provisions into another 

consensus standard. Further, API 12A is 

no longer publicly available through the 

American Petroleum Institute. 

API 12A was included in 

1910.106(b)(1)(iii)(a) to provide 

employers with one means of complying 

with the general requirement for 

atmospheric tanks to be ‘‘built in 

accordance with acceptable good 

standards of design.’’ The use of API 

12A was not required by the standard. 

OSHA’s revocation of the 1951 standard 

does not change an employer’s 

responsibility for constructing properly 

designed atmospheric tanks under 

1910.106(b)(1)(iii)(a). 

The other standards referenced in 

§ 1910.106 have been updated by their 

respective organizations in recent years. 

OSHA intends to review these standards 

and update its references to them, as 

appropriate, in the future. In this 

limited rulemaking, however, OSHA is 

proposing to revise 

1910.106(b)(1)(iii)(a)(2) to read as 

follows:

American Petroleum Institute Standard No. 

650, Welded Steel Tanks for Oil Storage, 

Third Edition, 1966.

2. 29 CFR 1910.142(c)(4) 

The OSHA standard for Temporary 

Labor Camps, 29 CFR 1910.142, 

incorporates by reference a national 

consensus standard that was issued 60 

years ago. This referenced standard was 

withdrawn by the issuing SDO in 1972 

and has not been replaced. Existing 

1910.142(c)(4) reads:

Where water under pressure is available, 

one or more drinking fountains shall be 

provided for each 100 occupants or fraction 

thereof. The construction of drinking 

fountains shall comply with ANSI Standard 

Specifications for Drinking Fountains, Z4.2–

1942, which is incorporated by reference as 

specified in § 1910.6. Common drinking cups 

are prohibited.

OSHA is proposing to delete from this 

provision the requirement that drinking 

fountains comply with ANSI Z4.2–1942.

ANSI Z4.2–1942 was issued in 1942. 

It provides guidance concerning the 

construction of drinking fountains based 

on the technology and construction 

practices that existed in 1942. ANSI 

Z4.2–1942 contains ten specific 

recommendations regarding the 

construction of drinking fountains. All 

of these recommendations use advisory 

‘‘should’’ language. Because the 

provisions are advisory only, they are 

unenforceable. See 49 FR 5318, 

February 10, 1984; cf. Marshall v. 

Pittsburgh-Des Moines Steel Company,

584 F.2d 638, 643–44 (3d. Cir. 1978). 

OSHA has concluded that the 

reference to ANSI Z4.2–1942 should be 

removed for two primary reasons. First, 

as stated above, because the specific 

recommendations in ANSI Z4.2–1942 

use advisory language, they are 

unenforceable. 

Second, referencing recommendations 

issued over 60 years ago for the 

construction of drinking fountains does 

not enhance the safety and health of 

employees. The technology for 

constructing drinking fountains has 

changed significantly since the 1940’s. 

Since 1942, a number of drinking 

68708 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Proposed Rules 

fountain units have become available to 

employers that, while not strictly 

manufactured in accordance with ANSI 

Z4.2–1942, are constructed pursuant to 

good engineering practices and are safe 

to use at temporary labor camps. It does 

not serve employers or employees to 

reference construction specifications 

that do not consider this new 

technology. 

For these reasons, OSHA is proposing 

to revise paragraph 1910.142(c)(4) to 

read:

Where water under pressure is available, 

one or more drinking fountains shall be 

provided for each 100 occupants or fraction 

thereof. Common drinking cups are 

prohibited.

3. 29 CFR 1910.243(e)(1)(i) 

Paragraph (e)(1)(i) of the OSHA 

standard for the Guarding of Portable 

Power Tools, 29 CFR 1910.243, 

incorporates a 1968 national consensus 

standard for power lawnmowers:

Power lawnmowers of the walk-behind, 

riding-rotary, and reel power lawnmowers 

designed for sale to the general public shall 

meet the design specifications in ‘‘American 

National Standard Safety Specifications for 

Power Lawnmowers’’ ANSI B71.1-X1968, 

which is incorporated by reference as 

specified in § 1910.6. These specifications do 

not apply to a walk-behind mower which has 

been converted to a riding mower by the 

addition of a sulky. Also, these specifications 

do not apply to flail mowers, sicklebar 

mowers, or mowers designed for commercial 

use.

OSHA is proposing to revoke the 

reference to American National 

Standard Safety Specifications for 

Power Lawnmowers ANSI B71.1-X1968 

(ANSI B71.1–1968) in this provision 

and replace it with a reference to the 

general machine guarding requirements 

contained in 29 CFR 1910.212. OSHA is 

also proposing to remove the sentences 

that describe the types of mowers for 

which the specifications in ANSI B71.1–

1968 do not apply. 

ANSI B71.1–1968 provides safety 

specifications for walk-behind and 

riding rotary motors, and walk-behind 

and rotary reel mowers ‘‘designed for 

sale to the general public.’’ ANSI B71.1–

1968 states that it is not intended to 

cover sulky-type mowers, flail mowers, 

sicklebar mowers, or mowers designed 

for commercial use. ANSI B71.1–1968, 

p. 7. 

ANSI has updated and expanded the 

scope of B71.1 significantly several 

times since 1968. Whereas the 1968 

version was approximately 10 pages 

long, the 1998 edition is approximately 

60 pages long. The 1998 edition 

contains specifications for a number of 

different walk-behind and ride-on 

mowers, including: (1) Reel and rotary 

walk-behind power lawn mowers, (2) 

reel and rotary ride-on power lawn 

mowers, (3) ride-on power lawn tractors 

with mower attachments, (4) ride-on 

power lawn and garden tractors with 

mower attachments, and (5) lever steer 

ride-on mowers. In addition, while the 

1968 version was not intended to apply 

to sulky-type, flail, and sicklebar 

mowers, as well as mowers designed for 

commercial use, the 1998 version is 

‘‘intended to apply to products 

specifically intended as consumer 

products for the personal use of a 

consumer around a house.’’ Its 

requirements ‘‘are not intended to apply 

to commercial products customarily 

used by hired operators. * * *’’ ANSI 

B71.1–1998, p. 1. 

When OSHA promulgated 

1910.243(e), it incorporated many of the 

specifications contained in ANSI B71.1–

1968 directly into the regulatory text. In 

fact, the vast majority of the 

requirements for walk-behind and 

riding rotary mowers found in ANSI 

B71.1–1968 are included in 1910.243(e). 

The only requirements not included 

directly in 1910.243(e) are those dealing 

with the testing of certain mowers and 

a handful of provisions concerning reel 

mowers. OSHA also incorporated the 

scope section of ANSI B71.1–1968 into 

paragraph 1910.243(e)(1)(i). Paragraph 

1910.243(e)(1)(i) thus requires power 

lawnmowers designed for sale ‘‘to the 

general public’’ to follow ANSI B71.1–

1968, but not power lawnmowers 

designed ‘‘for commercial use’’; power 

lawnmowers designed for commercial 

use must follow the guarding 

requirements of 29 CFR 1910.212(a)(1) 

and (a)(3)(ii). See Memorandum from 

John Miles to Regional Administrators, 

‘‘Misapplication of Power Lawnmower 

Standard 29 CFR 1910.243(e),’’ 1986 

(Ex. 2–1). 

In order to simplify and clarify the 

scope and coverage of § 1910.243, 

OSHA is proposing to delete the 

reference to ANSI B71.1–1968 and the 

final two sentences of paragraph 

1910.243(e)(1). The reference to ANSI 

B71.1–1968 in paragraph 1910.243(e)(1) 

is particularly confusing, given the 

limitations of the scope of the consensus 

standard. It is difficult for employers to 

determine which lawnmowers are 

designed for sale to ‘‘the general public’’

(covered by ANSI B71.1–1968) and 

which are designed ‘‘for commercial 

use’’ (not covered by ANSI B71.1–1968). 

This distinction is also not particularly 

relevant to protecting employees from 

the hazards associated with operating 

power lawnmowers.

OSHA is proposing to replace the 

reference to ANSI B71.1–1968 with a 

requirement for employers to ensure 

that all power lawnmowers meet the 

minimum guarding requirements of 29 

CFR 1910.212. This change does not 

significantly alter the existing 

requirements for power lawnmowers 

‘‘designed for commercial use,’’ which, 

as stated above, are already required to 

comply with paragraphs 1910.212(a)(1) 

and (a)(3)(ii). In addition, it does not 

markedly alter any existing 

requirements for power lawnmowers 

‘‘designed for sale to the general 

public.’’ Employers must still ensure 

that power lawnmowers comply with 

the requirements contained in 

1910.243(e), which as stated above, 

includes the vast majority of the 

provisions from ANSI B71.1–1968. 

Ensuring that power lawnmowers are in 

compliance with 1910.243(e) and the 

guarding provisions of 29 CFR 1910.212, 

will adequately protect employees from 

the hazards associated with operating 

this machinery. In addition, we are 

aware that under Consumer Products 

Safety Commission standards issued in 

1979, manufacturers of certain power 

lawnmowers that are ‘‘consumer 

products’’ must meet specific design 

requirements for such lawnmowers, 

including guarding requirements. These 

standards provide an additional set of 

protections for employees who use such 

products on the job. 

Finally, OSHA considered updating 

the 1968 ANSI reference to the 1998 

version of ANSI B71.1, but determined 

that doing so would not clarify the 

standard. As stated above, the 1998 

version applies ‘‘to products specifically 

intended as consumer products for the 

personal use of a consumer around a 

house,’’ and not to products 

‘‘customarily used by hired operators.’’

For OSHA purposes, this scope would 

raise additional issues for compliance 

that are not encountered under the 

existing OSHA standard. OSHA believes 

that deleting the reference and replacing 

it with a reference to 29 CFR 1910.212 

will both retain the existing degree of 

employee protection, and remove a 

continuing source of confusion as to the 

scope of the referenced standard. 

Accordingly, OSHA is proposing to 

revise 1910.243(e)(1)(i) to read as 

follows:

Power lawnmowers of the walk-behind, 

riding rotary, and reel power lawnmowers 

shall be guarded in accordance with the 

machine guarding requirements in 29 CFR 

1910.212, General requirements for all 

machines.

4. 29 CFR 1910.254(d)(1) 

The existing OSHA standard for Arc 

Welding and Cutting, 29 CFR 1910.254, 

incorporates by reference a 38-year old 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Proposed Rules 68709

industry standard that has been merged 

with a more recent national consensus 

standard. Existing 1910.254(d)(1) reads 

as follows:

General. Workmen assigned to operate or 

maintain arc welding equipment shall be 

acquainted with the requirements of this 

section and with 1910.252 (a), (b), and (c) of 

this part; if doing gas-shielded arc welding, 

also Recommended Safe Practices for GasShielded Arc Welding, A6.1–1966, American 

Welding Society, which is incorporated by 

reference as specified in § 1910.6.

For reasons discussed below, OSHA is 

proposing to delete the reference to 

Recommended Safe Practices for GasShielded Arc Welding, A6.1–1966, 

American Welding Society (AWS A6.1–

1966). 

AWS A6.1–1966 discusses the 

potential hazards associated with gasshielded arc welding and gives 

recommendations (non-mandatory) on 

personal protective equipment (PPE) 

and engineering controls to protect 

employees against such hazards. 

Compliance with AWS A6.1–1966 was 

required by ANSI Z49.1–1967, which 

OSHA used as a source for its welding 

standards in 29 CFR 1910.254. In 1973, 

AWS A6.1–1966 was formally merged 

into ANSI Z49.1 by the consensus 

standard developers. 

OSHA is proposing to revoke the 

reference to AWS A6.1–1966 because 

that industry standard is outdated and 

because virtually all of its coverage is 

provided elsewhere in OSHA’s welding 

standards. For example, many of the 

safety-related practices discussed in 

AWS A6.1–1966 are specifically 

addressed in 1910.252(a), (b), and (c). 

While AWS A6.1–1966 gives 

recommendations for eye protection and 

protective clothing for employees 

performing gas-shielded arc welding, 

1910.252(b) mandates the specific types 

of personal protective equipment (PPE) 

that welders must use. Similarly, AWS 

A6.1–1966 includes a general 

recommendation that metal fumes 

‘‘can’’ be controlled by general 

ventilation and local exhaust 

ventilation. Section 1910.252(c), by 

contrast, provides detailed requirements 

on ventilation and other means of 

protecting welders from inhalation 

hazards. Further, while AWS A6.1–1966 

discusses briefly the danger associated 

with trichloroethylene and 

perchloroethylene decomposition, 

1910.252(c) also discusses the need to 

keep trichloroethylene and 

perchloroethylene out of atmospheres 

‘‘penetrated by the ultraviolet radiation 

of gas-shielded welding operations.’’ 29 

CFR 1910.252(c)(11)(ii). 

Paragraph 1910.254(d)(1) requires 

employees performing arc welding to be 

‘‘acquainted with’’ 1910.252(a), (b), and 

(c). These three paragraphs cover 

virtually all of the recommendations 

that are found in AWS A6.1–1966 and 

actually go beyond most of them. In 

light of this, OSHA does not believe it 

is necessary to continue to reference the 

AWS standard in § 1910.254(d)(1).

OSHA also notes that employees 

performing gas-shielded arc welding are 

protected from many of the underlying 

hazards discussed in AWS A6.1–1966 

through other applicable OSHA 

standards. For example, exposures to 

virtually all of the toxic or hazardous 

substances that are discussed in AWS 

A6.1–1966 are regulated by Subpart Z 

(Toxic and Hazardous Substances) of 

Part 1910. 

Finally, the hazard information 

included in AWS A6.1–1966 is 

outdated, particularly compared to the 

information that employers are already 

required to provide to employees under 

OSHA’s hazard communication 

standard, 29 CFR 1910.1200. 

For these reasons, OSHA is proposing 

to revise paragraph 1910.254(d)(1) to 

read:

General. Workmen assigned to operate or 

maintain arc welding equipment shall be 

acquainted with the requirements of this 

section and with 1910.252 (a), (b), and (c) of 

this part.

5. 29 CFR 1910.265(c)(31)(i) 

The existing OSHA standard for 

Sawmills, 29 CFR 1910.265, 

incorporated by reference a consensus 

standard that is over 35 years old, has 

been withdrawn by the issuing SDO, 

and is included in an unenforceable 

provision. Existing 1910.265(c)(31)(i) 

reads:

Hazardous crossings. Railroad tracks and 

other hazardous crossings shall be plainly 

posted and appropriate traffic control devices 

(American National Standard D8.1–1967 for 

Railroad-Highway Grade Crossing Protection, 

which is incorporated by reference as 

specified in § 1910.6) should be utilized.

OSHA is proposing to delete the 

provision that employers ‘‘should’’ use 

‘‘appropriate traffic control devices,’’ as 

set forth in ANSI D8.1–1967. 

ANSI D8.1–1967 provides 

recommendations for signaling, 

marking, and controlling access to 

railroad-highway crossings. It does not 

address hazards specifically associated 

with crossings in sawmills or other 

special industries. Rather, the 

recommendations ‘‘are in the interest of 

establishing uniformity in traffic control 

and safety devices at railroad-highway 

grade crossings.’’ ANSI D8.1–1967, p. 4. 

ANSI withdrew the standard on January 

20, 1981 and did not replace it. 

OSHA references ANSI D8.1–1967 in 

an advisory provision; as stated earlier, 

advisory provisions in mandatory 

standards are unenforceable. As OSHA 

found during an earlier rulemaking to 

delete ‘‘should’’ provisions (47 FR 

23477, May 28, 1982; 49 FR 5321, 

February 10, 1984), removing such 

provisions clarifies employer 

obligations and enhances OSHA 

enforcement capabilities. In addition, in 

the present situation, referencing a 37-

year old consensus standard that was 

intended to address railroad and 

highway grade crossings—not crossings 

specifically in sawmills—adds little 

value to employers and employees in 

the sawmill industry. At the same time, 

because OSHA is retaining the 

mandatory provision in paragraph 

1910.265(c)(3)(i) that employers plainly 

post railroad tracks and other hazardous 

crossings, employees will continue to be 

alerted to potential hazards at these 

dangerous areas. 

OSHA is thus proposing to revise the 

provision to read:

Hazardous crossings. Railroad tracks and 

other hazardous crossings shall be plainly 

posted.

III. Legal Considerations 

The purpose of the Occupational 

Safety and Health Act of 1970, 29 U.S.C. 

651 et seq., is ‘‘to assure so far as 

possible every working man and woman 

in the nation safe and healthful working 

conditions and to preserve our human 

resources.’’ 29 U.S.C. 651(b). To achieve 

this goal Congress authorized the 

Secretary of Labor to promulgate and 

enforce occupational safety and health 

standards. 29 U.S.C. 655(b), 654(b). A 

safety or health standard is a standard 

‘‘which requires conditions, or the 

adoption or use of one or more 

practices, means, methods, operations, 

or processes, reasonably necessary or 

appropriate to provide safe or healthful 

employment or places of employment.’’

29 U.S.C. 652(8). A standard is 

reasonably necessary or appropriate 

within the meaning of Section 652(8) if, 

among other things, a significant risk of 

material harm exists in the workplace 

and the proposed standard would 

substantially reduce or eliminate that 

workplace risk. 

This proposed rule will not reduce 

the employee protections put into place 

by the standards being revised; the 

intent of this proposed rule is to revoke 

references to consensus standards that 

are outdated, no longer represent the 

state-of-the-art in workplace safety, and 

are confusing to employers and 

employees. It is therefore unnecessary to 

determine significant risk, or the extent 

to which the proposed rule would 

68710 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Proposed Rules 

reduce that risk, as would typically be 

required by Industrial Union 

Department, AFL–CIO v. American 

Petroleum Institute, 448 U.S. 607 (1980). 

IV. Preliminary Economic Analysis and 

Regulatory Flexibility Act Certification 

This action is not economically 

significant within the context of 

Executive Order 12866, or a ‘‘major 

rule’’ under the Unfunded Mandates 

Reform Act or Section 801 of the Small 

Business Regulatory Enforcement 

Fairness Act. The rulemaking would 

impose no additional costs on any 

private or public sector entity, and does 

not meet any of the criteria for an 

economically significant or major rule 

specified by the Executive Order or 

relevant statutes. 

This action simply deletes or revises 

a number of provisions in OSHA 

standards that are outdated. Therefore, 

the Agency concludes that the proposed 

rule would not impose any additional 

costs on these employers; consequently, 

the proposal requires no preliminary 

economic analysis. Furthermore, 

because the proposed rule imposes no 

costs on employers, OSHA certifies that 

it would not have a significant impact 

on a substantial number of small 

entities; accordingly, the Agency need 

not prepare an initial regulatory 

flexibility analysis under the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.).

V. Paperwork Reduction Act 

This action does not impose new 

information collection requirements for 

purposes of the Paperwork Reduction 

Act of 1995, 44 U.S.C. 3501–30. 

VI. Federalism 

OSHA has reviewed this proposed 

rule in accordance with the Executive 

Order on Federalism (Executive Order 

13132, 64 FR 43255, August 10, 1999), 

which requires that agencies, to the 

extent possible, refrain from limiting 

State policy options, consult with States 

prior to taking any actions that would 

restrict State policy options, and take 

such actions only when there is clear 

constitutional authority and the 

presence of a problem of national scope. 

Executive Order 13132 provides for 

preemption of State law only if there is 

a clear congressional intent for the 

Agency to do so. Any such preemption 

is to be limited to the extent possible. 

Section 18 of the OSH Act (29 U.S.C. 

651 et seq.) expresses Congress’ intent to 

preempt State laws where OSHA has 

promulgated occupational safety and 

health standards. Under the OSH Act, a 

State can avoid preemption on issues 

covered by Federal standards only if it 

submits, and obtains Federal approval 

of, a plan for the development of such 

standards and their enforcement (StatePlan State). 29 U.S.C. 667. Occupational 

safety and health standards developed 

by such State-Plan States must, among 

other things, be at least as effective in 

providing safe and healthful 

employment and places of employment 

as the Federal standards. Subject to 

these requirements, State-Plan States are 

free to develop and enforce under State 

law their own requirements for safety 

and health standards. 

This proposed rule complies with 

Executive Order 13132. As Congress has 

expressed a clear intent for OSHA 

standards to preempt State job safety 

and health rules in areas addressed by 

OSHA standards in States without 

OSHA-approved State Plans, this action 

limits State policy options in the same 

manner as all OSHA standards. In State 

with OSHA-approved State Plans, this 

action does not significantly limit State 

policy options. 

VII. State Plan States 

When Federal OSHA promulgates a 

new standard or more stringent 

amendment to an existing standard, the 

26 States or U.S. Territories with their 

own OSHA-approved occupational 

safety and health plans must revise their 

standards to reflect the new standard or 

amendment, or show OSHA why there 

is no need for action, e.g., because an 

existing State standard covering this 

area is already ‘‘at least as effective’’ as 

the new Federal standard 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. These 26 States and territories are: 

Alaska, Arizona, California, Connecticut 

(plan covers only State and local 

government employees), Hawaii, 

Indiana, Iowa, Kentucky, Maryland, 

Michigan, Minnesota, Nevada, New 

Mexico, New Jersey (plan covers only 

State and local government employees), 

New York (plan covers only State and 

local government employees), North 

Carolina, Oregon, Puerto Rico, South 

Carolina, Tennessee, Utah, Vermont, 

Virginia, Virgin Islands (plan covers 

only territorial and local government 

employees), Washington, and Wyoming. 

VIII. Unfunded Mandates Reform Act 

This proposed rule, which amends 

subpart A—General (29 CFR 1910.6), 

subpart H—Hazardous Materials (29 

CFR 1910.106), subpart J—General 

Environmental Controls (29 CFR 

1910.142), subpart P—Hand and 

Portable Powered Tools and Other 

Hand-Held Equipment (29 CFR 

1910.243), subpart Q—Welding, Cutting 

and Brazing (29 CFR 1910.254), and 

subpart R—Special Industries (29 CFR 

1910.265), has been reviewed in 

accordance with the Unfunded 

Mandates Reform Act of 1995 (UMRA). 

2 U.S.C. 1501 et seq.

For the purposes of the UMRA, the 

Agency certifies that this proposed rule 

does not impose any Federal mandate 

that may result in increased 

expenditures by State, local, or tribal 

governments, or increased expenditures 

by the private sector, of more than $100 

million in any year.

List of Subjects in Part 1910 

Flammable materials, Hazardous 

substances, Occupational safety and 

health, Signs and symbols.

IX. Authority and Signature 

This document was prepared under 

the direction of John L. Henshaw, 

Assistant Secretary of Labor for 

Occupational Safety and Health, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Washington, DC 20210. It 

is issued pursuant to sections 4, 6, and 

8 of the Occupational Safety and Health 

Act of 1970 (29 U.S.C. 653, 655, 657), 

Secretary of Labor’s Order 5–2002 (67 

FR 65008), and 29 CFR Part 1911.

Signed at Washington, DC, this 17th day of 

November, 2004. 

John L. Henshaw, 

Assistant Secretary of Labor.

Proposed Amendments to Standards 

The Occupational Safety and Health 

Administration is proposing to amend 

part 1910 of title 29 of the Code of 

Federal Regulations as set forth below:

PART 1910—OCCUPATIONAL SAFETY 

AND HEALTH STANDARDS

Subpart A—General 

1. The authority citation for subpart A 

of part 1910 is revised to read as 

follows:

Authority: Secs. 4, 6, 8, Occupational 

Safety and Health Act of 1970 (29 U.S.C. 653, 

655, 657); Secretary of Labor’s Order 

Numbers 12–71 (36 FR 8754), 8–76 (41 FR 

25059), 9–83 (48 FR 35736), 1–90 (55 FR 

9033), 6–96 (62 FR 111), or 5–2002 (67 FR 

65008), as applicable.

Sections 1910.7 and 1910.8 also issued 

under 29 CFR part 1911. Section 1910.7(f) 

also issued under 31 U.S.C. 9701, 29 U.S.C. 

9a, 5 U.S.C. 553; Pub. L. 106–113 (113 Stat. 

1501A–222); and OMB Circular A–25 (dated 

July 8, 1993) (58 FR 38142, July 15, 1993).

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Proposed Rules 68711

§ 1910.6 [Amended] 

2. Section 1910.6 is amended by 

removing and reserving paragraphs 

(e)(31); (e)(35); (e)(48); (f)(1); and (i)(2).

Subpart H—Hazardous Materials 

3. The authority citation for subpart H 

of part 1910 is revised to read as 

follows:

Authority: Sections 4, 6, and 8 of the 

Occupational Safety and Health Act of 1970 

(29 U.S.C. 653, 655, 657); Secretary of Labor’s 

Orders Nos. 12–71 (36 FR 8754), 8–76 (41 FR 

25059), 9–83 (48 FR 35736), 1–90 (55 FR 

9033), 6–96 (62 FR 111), 3–2000 (65 FR 

50017), or 5–2002 (67 FR 65008), as 

applicable; and 29 CFR part 1911.

Sections 1910.103, 1910.106 through 

1910.111, and 1910.119, 1910.120, and 

1910.122 through 126 also issued under 29 

CFR part 1911. 

Section 1910.119 also issued under section 

304, Clean Air Act Amendments of 1990 

(Pub. L. 101–549), reprinted at 29 U.S.C. 655 

Note. 

Section 1910.120 also issued under section 

126, Superfund Amendments and 

Reauthorization Act of 1986 as amended (29 

U.S.C. 655 Note), and 5 U.S.C. 553.

4. Paragraph (b)(1)(iii)(a)(2) of 

§ 1910.106 is revised to read as follows:

§ 1910.106 Flammable and combustible 

liquids.

* * * * *

(b) * * * 

(1) * * * 

(iii) * * *

(a) * * * 

(2) American Petroleum Institute 

Standards No. 650, Welded Steel Tanks 

for Oil Storage, Third Edition, 1966.

* * * * *

Subpart J—General Environmental 

Controls 

5. The authority citation for subpart J 

of part 1910 is revised to read as 

follows:

Authority: Secs. 4, 6, and 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), 6–96 (62 

FR 111), or 5–2002 (67 FR 65008), as 

applicable.

Sections 1910.141, 1910.142, 1910.145, 

1910.146, and 1910.147 also issued under 29 

CFR part 1911.

6. Paragraph (c)(4) of § 1910.142 is 

revised to read as follows:

§ 1910.142 Temporary labor camps.

* * * * *

(c) * * * 

(4) Where water under pressure is 

available, one or more drinking 

fountains shall be provided for each 100 

occupants or fraction thereof. Common 

drinking cups are prohibited.

* * * * *

Subpart P—Hand and Portable 

Powered Tools and Other Hand Held 

Equipment 

7. The authority citation for Subpart 

P of Part 1910 is revised 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), or 5–2002 (67 FR 65008), as 

applicable; 29 CFR part 1911.

Section 1910.243 also issued under 29 CFR 

part 1910.

8. Paragraph (e)(1)(i) of § 1910.243 is 

revised to read as follows:

§ 1910.243 Guarding of portable power 

tools.

* * * * *

(e) * * * 

(1) * * * 

(i) Power lawnmowers of the walkbehind, riding-rotary, and reel power 

lawnmowers shall be guarded in 

accordance with the machine guarding 

requirements in 29 CFR 1910.212, 

General requirements for all machines.

* * * * *

Subpart Q—Welding, Cutting, and 

Brazing 

9. The authority citation for Subpart 

Q of Part 1910 is revised to read as 

follows:

Authority: Secs. 4, 6, and 8 of the 

Occupational Safety and Health Act of 1970 

(29 U.S.C. 653, 655, 657); Secretary of Labor’s 

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), or 5–2002 (67 FR 

65008), as applicable; and 29 CFR part 1911.

10. Paragraph (d)(1) of § 1910.254 is 

revised to read as follows:

§ 1910.254 Arc welding and cutting.

* * * * *

(d) * * * 

(1) General. Workmen assigned to 

operate or maintain arc welding 

equipment shall be acquainted with the 

requirements of this section and with 

1910.252(a), (b), and (c) of this part.

* * * * *

Subpart R—Special Industries 

11. The authority citation for Subpart 

R of Part 1910 is revised 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), 6–96 (62 FR 

111), 3–2000 (65 FR 50017), or 5–2002 (67 FR 

65008), as applicable; and 29 CFR part 1911.

12. Paragraph (c)(31)(i) of § 1910.265 

is revised to read as follows:

§ 1910.265 Sawmills.

* * * * *

(c) * * * 

(31) * * * 

(i) Hazardous crossings. Railroad 

tracks and other hazardous crossings 

shall be plainly posted.

* * * * *

[FR Doc. 04–26046 Filed 11–23–04; 8:45 am] 

BILLING CODE 4510–26–P