Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Proposed Rules 68283

1OSHA also adopted under Section 6(a) a number 

of industry standards that were established Federal 

Standards or that were referenced in national 

consensus standards. For convenience only, this 

Continued

to CC:PA:LPD:PR (REG–138176–02), 

Courier’s Desk, Internal Revenue 

Service, 1111 Constitution Avenue, 

NW., Washington, DC, or sent 

electronically, via the IRS Internet site 

at http://www.irs.gov/regs. or via the 

Federal eRulemaking Portal at http://

www.regulations.gov (IRS–REG–

138176–02).

FOR FURTHER INFORMATION CONTACT:

Concerning submissions of comments, 

the hearing, and/or to be placed on the 

building access list to attend the hearing 

Sonya M. Cruse, (202) 622–4693 (not a 

toll-free number).

SUPPLEMENTARY INFORMATION: The 

subject of the public hearing is the 

notice of proposed rulemaking (REG–

138176–02) that was published in the 

Federal Register on September 21, 2004 

(69 FR 56377). 

The rules of 26 CFR 601.601(a)(3) 

apply to the hearing. Persons who have 

submitted written comments and wish 

to present oral comments at the hearing 

must submit an outline of the topics to 

be discussed and the amount of time to 

be devoted to each topic (signed original 

and eight (8) copies) by December 28, 

2004. 

A period of 10 minutes is allotted to 

each person for presenting oral 

comments. After the deadline for 

receiving outlines has passed, the IRS 

will prepare an agenda containing the 

schedule of speakers. Copies of the 

agenda will be made available, free of 

charge, at the hearing. Because of access 

restrictions, the IRS will not admit 

visitors beyond the immediate entrance 

area more than 30 minutes before the 

hearing. For information about having 

your name placed on the building 

access list to attend the hearing, see the 

FOR FURTHER INFORMATION CONTACT

section of this document.

Cynthia E. Grigsby, 

Acting Chief, Publications and Regulations 

Branch, Legal Processing Division, Associate 

Chief Counsel, (Procedures and 

Administration).

[FR Doc. 04–26063 Filed 11–23–04; 8:45 am] 

BILLING CODE 4830–01–P

DEPARTMENT OF LABOR

Occupational Safety and Health 

Administration 

29 CFR Part 1910 

[Docket No. S–023] 

RIN 1218–AC08 

Updating OSHA Standards Based on 

National Consensus Standards

AGENCY: Occupational Safety and Health 

Administration (OSHA); Labor.

ACTION: Proposed rule; notice of project 

to update OSHA standards that are 

based on National Consensus Standards. 

SUMMARY: OSHA is engaging in an 

overall effort to update OSHA standards 

that reference, or that include language 

taken directly from, outdated consensus 

standards. The Agency adopted many of 

these standards over 30 years ago under 

Section 6(a) of the Occupational Safety 

and Health Act of 1970. Most of the 

referenced documents have been either 

superseded by later versions or 

withdrawn by the issuing Standards 

Development Organization (SDO). Many 

are no longer in print or available to the 

public through the issuing SDO. The 

outdated versions in the OSHA 

standards do not reflect advances in 

technologies that have changed 

workplace safety over the last 30 years. 

OSHA will use a variety of regulatory 

approaches to update these standards, 

including notice and comment 

rulemaking, direct final rulemaking, and 

technical amendments.

DATES: Comments to this notice must be 

submitted by the following dates: 

• Hard copy: Your comments must be 

submitted (postmarked or sent) by 

December 27, 2004. 

• Electronic transmission and 

facsimile: Your comments must be sent 

by December 27, 2004.

ADDRESSES: You may submit written 

comments on this notice—identified by 

docket number S–023 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–023, 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. 

Docket: For access to the docket to 

read background documents or 

comments received go to http://

dockets.osha.gov.

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, NW., 

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 Web page at 

http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

I. Background 

OSHA has used consensus standards 

extensively as a basis for its mandatory 

safety and health standards since the 

earliest days of the Occupational Safety 

and Health Act of 1970 (OSH Act), 29 

U.S.C. 651 et seq. Under Section 6(a) of 

the OSH Act, OSHA was given the 

authority for a period of 2 years to adopt 

both national consensus standards and 

established Federal standards as OSHA 

standards without following notice and 

comment rulemaking procedures. 29 

U.S.C 655(a). Congress provided this 

authority so that OSHA would have a 

mechanism to begin immediately 

protecting the Nation’s workers through 

mandatory standards. Using Section 

6(a), the Agency adopted many 

consensus standards as OSHA 

standards.1 OSHA adopted some of the 

68284 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Proposed Rules 

notice also refers to such standards promulgated 

under Section 6(a) as ‘‘consensus standards.’’

consensus standards through 

‘‘incorporation by reference.’’ When it 

incorporates a consensus standard by 

reference, OSHA requires employers to 

follow a consensus standard—identified 

by name and date in the Code of Federal 

Regulations—made available for 

inspection at the Office of the Federal 

Register, the OSHA Docket Office, and 

OSHA’s Regional Offices. See 29 CFR 

1910.6. OSHA adopted other consensus 

standards by importing relevant 

language from them directly into the 

regulatory text of OSHA standards.

Under Section 6(b) of the OSH Act, 

which authorizes OSHA to promulgate 

safety and health standards through 

notice and comment rulemaking, OSHA 

has since promulgated a number of rules 

that reference, or are based in large 

measure on, consensus standards. Some 

of these Section 6(b) rulemakings 

involved updating OSHA standards that 

were originally adopted from consensus 

standards under Section 6(a), as 

discussed above. 

Today, there are about 200 consensus 

standards referenced throughout the 

OSHA standards for general industry 

and maritime. The references appear in 

hundreds of requirements and range 

from informational references to 

mandatory requirements. 

While OSHA has updated some of its 

Section 6(a) standards through notice 

and comment rulemaking, the vast 

majority have not been updated since 

they were originally adopted. Some of 

the consensus standards ‘‘incorporated 

by reference’’ were issued over 60 years 

ago. Most of the referenced consensus 

documents have been either superseded 

by later versions or withdrawn by the 

issuing Standards Development 

Organization (SDO). Many are no longer 

in print or available to the public 

through the issuing SDO. These 

outdated standards do not reflect 

advances in technologies that have 

changed workplace safety over the last 

30 years. The OSHA versions also have 

not been updated to address new 

equipment and machinery that have 

become available since they were 

originally promulgated.

OSHA has a policy of issuing ‘‘de 

minimis’’ notices to employers who 

comply with more current versions of 

consensus standards, to the extent that 

the more current versions are at least as 

protective as the older versions. See

OSHA Instruction CPL 2.45B, p. IV–31. 

The ‘‘de minimis’’ policy does not 

address all of the difficulties for 

employers, employees, and OSHA 

enforcement personnel created by 

OSHA referencing outdated consensus 

standards. For example, referencing 

outdated consensus standards adds 

time-consuming administrative burdens 

on employers seeking to comply with 

OSHA standards. Employers need to 

research the referenced consensus 

standards, identify and analyze any 

updates to the standards, and determine 

how they apply to their workplaces. 

This task is made more difficult because 

many of the referenced consensus 

standards are no longer available 

through the issuing SDOs. Referencing 

outdated consensus standards also 

places heavy administrative burdens on 

OSHA. In applying the ‘‘de minimis’’

policy, OSHA must currently analyze 

later versions of the referenced 

consensus standards, and determine 

whether they are as protective as the 

referenced versions. OSHA believes that 

it would be far more productive for the 

Agency to use its time and resources to 

update its standards to reflect advances 

in consensus standard development and 

to address more effectively the new 

technologies and equipment that are 

found in today’s workplaces. 

II. Consensus Standards Update Project 

OSHA recognizes the value of 

consensus standards and the 

widespread preference for OSHA rules 

to reflect the latest versions of these 

standards. SDOs rely upon the expertise 

of individuals with diverse backgrounds 

to produce consensus standards that 

consider the latest developments in 

workplace safety. As mentioned above, 

Congress placed such a high value on 

national consensus standards that it 

authorized the Agency to adopt them as 

OSHA standards, without notice and 

comment rulemaking, during the first 

two years of the OSH Act under Section 

6(a). In addition, Section 6(b)(8) of the 

OSH Act states: ‘‘Whenever a rule 

promulgated by the Secretary differs 

substantially from an existing national 

consensus standard, the Secretary shall, 

at the same time, publish in the Federal 

Register a statement of the reasons why 

the rule as adopted will better effectuate 

the purposes of this Act than the 

national consensus standard.’’ 29 U.S.C. 

655(b)(8). 

In the National Technology Transfer 

and Advancement Act (NTTAA), 15 

U.S.C. 272, Congress directed Federal 

agencies to use voluntary consensus 

standards ‘‘to the extent practicable’’

and to participate in the development of 

voluntary consensus standards. The 

Office of Management and Budget has 

issued Circular A–119, Federal 

Participation in the Development and 

Use of Voluntary Consensus Standards 

and in Conformity Assessment 

Activities, to guide agencies in 

implementing the NTTAA. While the 

NTTAA does not expand the obligations 

OSHA already has under Section 6(b)(8) 

of the OSH Act (to consider consensus 

standards during rulemaking), it 

demonstrates the importance Congress 

continues to place on the use of 

consensus standards by administrative 

agencies. 

Consensus standards often attempt to 

reconcile diverse global standards and 

eliminate barriers to trade by finding 

areas of agreement on the safety aspects 

of machinery and equipment. In 

addition, Federal agencies can make use 

of the expertise of the developers of 

these standards and participate with 

them in the development process. 

Recognizing the importance of 

consensus standards, and the 

difficulties presented by OSHA’s 

continued reliance on outdated 

consensus standards, we are beginning 

an effort to (1) update or revoke 

outdated consensus standards 

referenced in OSHA standards, and (2) 

update standards that incorporate 

language directly from outdated 

consensus standards. OSHA anticipates 

that this will be an extended and 

ongoing process. The OSH Act does not 

provide a quick way to update 

mandatory safety and health standards. 

OSHA is not able to adopt the latest 

versions of national consensus 

standards without notice and comment, 

as it was authorized to do for 2 years 

under Section 6(a). Instead, OSHA must 

conduct rulemaking under Section 6(b) 

to accomplish this task. 

OSHA has previously solicited 

information and suggestions from the 

American National Standards Institute 

(ANSI) and other SDOs on how to 

proceed with this project. See Ex. 2–1, 

Letter from OSHA to ANSI and SDOs 

dated April 23, 2002. OSHA explained 

in that solicitation that the references to 

outdated consensus standards created 

difficulties for employers in a number of 

respects. OSHA noted that many of the 

outdated versions are no longer 

available from the issuing SDO and that 

there are often questions about the 

degree of protection and the lack of 

currency with technological 

developments in various areas. OSHA 

specifically asked SDOs to identify 

which referenced standards had been 

updated by the SDOs since their 

adoption by OSHA, and to provide 

input on the following questions: 

• Whether material changes have 

been made to the referenced consensus 

standards so that the current versions 

are substantially different from the 

versions in the CFR; 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Proposed Rules 68285

• Whether the adoption of the current 

versions would be controversial; and

• Whether the latest versions reduce 

risk more than the versions that are 

currently incorporated in OSHA 

standards. 

Various SDOs and other organizations 

responded and indicated their desire to 

assist OSHA in its effort to update its 

standards. Among the SDOs providing 

input were ANSI, the National Fire 

Protection Association (NFPA), the 

American Society of Mechanical 

Engineers (ASME), and the American 

Society for Testing and Materials. Other 

organizations such as Underwriters 

Laboratories, the American Petroleum 

Institute, the Compressed Gas 

Association, and the Abrasive Wheel 

Institute also responded. Many of the 

SDOs and other organizations provided 

OSHA with copies of the most recent 

versions of their referenced standard(s) 

and offered to provide technical 

assistance to the Agency in its analysis 

of the older and new standards. OSHA 

appreciates the willingness of these 

organizations to help us implement this 

project. 

Nearly all of the SDOs said that 

OSHA’s standards needed updating to 

reflect current versions of the consensus 

standards and that the current versions 

provided a higher level of safety to 

workers. In addition, many of the SDOs 

believe that OSHA’s efforts to update its 

standards to reflect current versions of 

the consensus standards will not elicit 

controversy. For example, the ASME 

said:

[We] believe that adoption of the current 

version of each of these standards by the 

Federal Government with the changes 

identified would be non-controversial. 

Similarly, it is our opinion that the current 

versions of ASME standards will provide a 

reduction in the risk of accidents and injuries 

as compared to earlier versions presently 

referenced in the CFR and will alleviate some 

of the confusion in the regulated industry. 

Moreover, in addition to the technological 

advances incorporated into updated 

standards, many of the products described in 

the older versions of standards are no longer 

available, or are very difficult to obtain. Ex. 

2–2, p. 2.

The NFPA noted that each of their 

documents has been updated ‘‘to reflect 

up-to-date terminology and current 

industry practices.’’ Ex. 2–3, App. B. 

The updated documents often cover 

technology that has been developed 

since the OSHA standard was 

promulgated. ‘‘Providing a state-of-theart document reflecting business 

practices of today promotes more of an 

understanding, appreciation and the 

much-necessary buy-in by the users of 

the regulations, thereby reducing risk.’’

Ex. 2–3, App. B. 

The NFPA also thought the updated 

references ‘‘would be largely noncontroversial since the documents are 

ANSI consensus standards.’’ Ex. 2–3, 

App. B. In addition, the NFPA said that 

‘‘[w]ith the interested parties 

participating in the process to write 

documents, and with the respective 

affected industries and their insurance 

companies currently using NFPA 

documents, there is little controversy 

with OSHA referencing the most 

updated NFPA codes and standards.’’

Ex. 2–3, App. B. The NFPA also said 

that for those OSHA standards that 

contain word-for-word text from NFPA 

codes and standards, OSHA should 

consider replacing the text ‘‘with a 

simple reference to the applicable 

primary NFPA document.’’ Ex. 2–3, 

App. B. 

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 outdated 

consensus standards incorporated by 

reference, and updating regulatory text 

of current OSHA rules that were 

adopted directly from the language of 

outdated consensus standards. OSHA 

will use a variety of regulatory 

approaches in this effort, including: 

1. Notice and comment rulemaking.

OSHA intends to initiate formal (notice 

and comment) rulemaking to update or 

revoke references to outdated consensus 

standards in instances where OSHA 

anticipates that the action would either 

impose compliance costs or raise 

significant issues. OSHA will also use 

traditional notice and comment 

rulemaking to update OSHA provisions 

that were derived directly from the text 

of outdated consensus standards. OSHA 

is already using this technique to update 

its electrical installation standards in 

Subpart S of Part 1910 (proposed rule 

published April 5, 2004, 69 FR 17774) 

and expects to publish a proposed rule 

in the near future for Subpart V (power 

transmission and distribution lines and 

equipment) of Part 1926. 

2. Direct final rulemaking. OSHA will 

use direct final rulemaking to update or 

revoke, as appropriate, references to 

outdated consensus standards where the 

regulatory change is non-controversial, 

equally protective, and does not impose 

significant new compliance costs. 

3. Technical amendments. Where 

appropriate, OSHA intends to issue 

technical amendments to update 

references that are currently 

incorporated into OSHA standards and 

that only provide information to the 

regulated community. Such references 

impose no compliance obligations and 

can be updated without notice and 

comment procedures. 

OSHA welcomes comments on this 

update effort generally, as well as 

specific suggestions on which projects 

OSHA should pursue first. 

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 17 day of 

November 2004. 

John L. Henshaw, 

Assistant Secretary of Labor.

[FR Doc. 04–26047 Filed 11–23–04; 8:45 am] 

BILLING CODE 4510–26–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 938 

[PA–124–FOR] 

Pennsylvania Regulatory Program

AGENCY: Office of Surface Mining 

Reclamation and Enforcement (OSM), 

Interior.

ACTION: Proposed rule; reopening of 

public comment period. 

SUMMARY: We are reopening the public 

comment period on a proposed 

amendment to the Pennsylvania 

regulatory program (the ‘‘Pennsylvania 

program’’) under the Surface Mining 

Control and Reclamation Act of 1977 

(SMCRA or the Act). Since the close of 

the comment period, Pennsylvania has 

provided explanatory information in 

response to two letters, as amended, we 

sent requesting clarification with regard 

to its proposed amendment. 

Pennsylvania has also withdrawn 

portions of its original amendment and 

has requested that we consider some 

existing statutes and regulatory 

provisions as part of the amendment. 

Pennsylvania has also indicated its 

intent to further revise portions of the 

amendment. We are accepting 

comments on the specific changes noted 

below only.

DATES: We will accept written 

comments on this proposal until 4 p.m., 

(local time) December 9, 2004.