40442 Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Rules and Regulations 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1910 

[Docket No. OSHA–2008–0034] 

RIN 1218–AC08 

Revising Standards Referenced in the 

Acetylene Standard 

AGENCY: Occupational Safety and Health 

Administration (OSHA), Department of 

Labor. 

ACTION: Direct final rule; request for 

comments. 

SUMMARY: In this direct final rule, the 

Agency is revising its Acetylene 

Standard for general industry by 

updating references to standards 

published by standards developing 

organizations (i.e., ‘‘SDO standards’’). 

This rulemaking is a continuation of 

OSHA’s ongoing effort to update 

references to SDO standards used 

throughout its rules. 

DATES: This direct final rule will 

become effective on November 9, 2009 

unless significant adverse comment is 

received by September 10, 2009. If 

adverse comment is received, OSHA 

will publish a timely withdrawal of the 

rule in the Federal Register. Comments 

to this direct final rule (including 

comments to the information-collection 

(paperwork) determination described 

under the section titled Procedural 

Determinations), hearing requests, and 

other information must be submitted by 

September 10, 2009. All submissions 

must bear a postmark or provide other 

evidence of the submission date. (The 

following section titled ADDRESSES

describes methods available for making 

submissions.) 

The incorporation by reference of 

specific publications listed in this direct 

final rule is approved by the Director of 

the Federal Register as of November 9, 

2009. 

ADDRESSES: Submit comments and 

hearing requests as follows: 

• Electronic. Submit comments 

electronically to http:// 

www.regulations.gov, which is the 

Federal eRulemaking Portal. Follow the 

instructions online for submitting 

comments. 

• Facsimile. OSHA allows facsimile 

transmission of comments and hearing 

requests that are 10 pages or fewer in 

length (including attachments). Send 

these documents to the OSHA Docket 

Office at (202) 693–1648; OSHA does 

not require hard copies of these 

documents. Instead of transmitting 

facsimile copies of attachments that 

supplement these documents (e.g., 

studies, journal articles), commenters 

must submit these attachments, in 

triplicate hard copy, to the OSHA 

Docket Office, Technical Data Center, 

Room N–2625, OSHA, U.S. Department 

of Labor, 200 Constitution Ave., NW., 

Washington, DC 20210. These 

attachments must clearly identify the 

sender’s name, date, subject, and docket 

number (i.e., OSHA–2008–0034) so that 

the Agency can attach them to the 

appropriate document. 

• Regular mail, express delivery, 

hand (courier) delivery, and messenger 

service. Submit three copies of 

comments and any additional material 

(e.g., studies, journal articles) to the 

OSHA Docket Office, Docket No. 

OSHA–2008–0034 or RIN No. 1218– 

AC08, Technical Data Center, Room N– 

2625, OSHA, U.S. Department of Labor, 

200 Constitution Ave., NW., 

Washington, DC 20210; telephone: (202) 

693–2350. (OSHA’s TTY number is 

(877) 889–5627.) Note that securityrelated procedures may result in 

significant delays in receiving 

comments and other written materials 

by regular mail. Please contact the 

OSHA Docket Office for information 

about security procedures concerning 

delivery of materials by express 

delivery, hand delivery, and messenger 

service. The hours of operation for the 

OSHA Docket Office are 8:15 a.m. to 

4:45 p.m., e.t. 

• Instructions. All submissions must 

include the Agency name and the OSHA 

docket number (i.e., OSHA Docket No. 

OSHA–2008–0034). Comments and 

other material, including any personal 

information, are placed in the public 

docket without revision, and will be 

available online at http:// 

www.regulations.gov. Therefore, the 

Agency cautions commenters about 

submitting statements they do not want 

made available to the public, or 

submitting comments that contain 

personal information (either about 

themselves or others) such as Social 

Security numbers, birth dates, and 

medical data. 

OSHA requests comments on all 

issues related to this direct final rule. It 

also welcomes comments on its findings 

that this direct final rule would have no 

negative economic, paperwork, or other 

regulatory impacts on the regulated 

community. This direct final rule is the 

companion document to a notice of 

proposed rulemaking also published in 

the ‘‘Proposed Rules’’ section of today’s 

Federal Register. If OSHA receives no 

significant adverse comment on this 

direct final rule, it will publish a 

Federal Register document confirming 

the effective date of this direct final rule 

and withdrawing the companion 

proposed rule. The confirmation may 

include minor stylistic or technical 

corrections to the document. For the 

purpose of judicial review, OSHA 

considers the date that it confirms the 

effective date of the direct final rule to 

be the date of issuance. However, if 

OSHA receives significant adverse 

comment on the direct final rule, it will 

publish a timely withdrawal of this 

direct final rule and proceed with the 

proposed rule, which addresses the 

same revisions to the Acetylene 

Standard. 

• Docket. The electronic docket for 

this direct final rule established at 

http://www.regulations.gov lists most of 

the documents in the docket. However, 

some information (e.g., copyrighted 

material) is not publicly available to 

read or download through this Web site. 

All submissions, including copyrighted 

material, are available for inspection 

and copying at the OSHA Docket Office. 

Contact the OSHA Docket Office for 

assistance in locating docket 

submissions. 

FOR FURTHER INFORMATION CONTACT: 

Press inquiries. Contact Jennifer Ashley, 

OSHA Office of Communications, Room 

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

Constitution Avenue, NW., Washington, 

DC 20210; telephone: (202) 693–1999. 

General and technical information. 

Contact Ted Twardowski, Office of 

Safety Systems, Directorate of Standards 

and Guidance, Room N–3609, OSHA, 

U.S. Department of Labor, 200 

Constitution Avenue, NW., Washington, 

DC 20210; telephone: (202) 693–2255; 

fax: (202) 693–1663. 

SUPPLEMENTARY INFORMATION: 

Copies of this Federal Register notice. 

Electronic copies are available at 

http://www.regulations.gov. This 

Federal Register notice, as well as news 

releases and other relevant information, 

also are available at OSHA’s Webpage at 

http://www.osha.gov. 

Availability of Incorporated 

Standards. The standards published by 

the Compressed Gas Association and the 

National Fire Protection Association 

required in § 1910.102 are incorporated 

by reference into this section with the 

approval of the Director of the Federal 

Register under 5 U.S.C. 552(a) and 1 

CFR part 51. To enforce any edition 

other than the editions specified in 

§ 1910.102, the Occupational Safety and 

Health Administration (OSHA) must 

publish a notice of change in the 

Federal Register and the material must 

be available to the public. All approved 

material is available for inspection at 

the National Archives and Records 


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Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Rules and Regulations 40443 

Administration (NARA). For 

information on the availability of this 

material at NARA, telephone 202–741– 

6030, or go to: http://www.archives.gov/ 

federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. Also, the material is 

available for inspection at any OSHA 

Regional Office or the OSHA Docket 

Office (U.S. Department of Labor, 200 

Constitution Avenue, NW., Room N– 

2625, Washington, DC 20210; telephone 

202–693–2350 (TTY number: 877–889– 

5627)). 

Table of Contents 

I. Background 

II. Direct Final Rulemaking 

III. Summary and Explanation of Revisions to 

the Acetylene Standard 

IV. Procedural Determinations 

A. Legal Considerations 

B. Final Economic Analysis and Regulatory 

Flexibility Act Certification 

C. OMB Review Under the Paperwork 

Reduction Act of 1995 

D. Federalism 

E. State-Plan States 

F. Unfunded Mandates Reform Act of 1995 

G. Public Participation 

V. Authority and Signature 

I. Background 

This action is part of a rulemaking 

project instituted by the Occupational 

Safety and Health Administration 

(‘‘OSHA’’ or ‘‘the Agency’’) to update 

OSHA standards that reference or 

include language from outdated 

standards published by standards 

developing organizations (‘‘SDO 

standards’’) (69 FR 68283). The SDO 

standards referenced in OSHA’s 

Acetylene Standard (29 CFR 1910.102) 

are among the SDO standards that the 

Agency identified for revision. 

OSHA adopted the Acetylene 

Standard in 1974 pursuant to Section 

6(a) of the Occupational Safety and 

Health Act of 1970 (OSH Act; 29 U.S.C. 

651, 655). This section allowed OSHA, 

during the first two years after passage 

of the OSH Act, to adopt existing 

Federal and national consensus 

standards as OSHA safety and health 

standards, including the current 

Acetylene Standard. 

After OSHA announced the SDO 

rulemaking project, the Agency met 

with the Compressed Gas Association 

(‘‘CGA’’) about the rulemaking project. 

CGA, a private standards organization, 

provided detailed recommendations on 

updating SDO standards referenced in 

OSHA standards, including the 

Acetylene Standard (Ex. OSHA–2008– 

0034–0003). Thereafter, the U.S. 

Chemical Safety and Hazard 

Investigation Board (‘‘Chemical Safety 

Board’’) also recommended that OSHA 

update the SDO standards referenced in 

the Acetylene Standard (Ex. OSHA– 

2008–0034–0004). 

II. Direct Final Rulemaking 

In a direct final rulemaking, an agency 

publishes a direct final rule in the 

Federal Register along with a statement 

that the rule will become effective 

unless the agency receives significant 

adverse comment within a specified 

period. The agency also publishes 

concurrently an identical proposed rule. 

If the agency receives no significant 

adverse comment, the direct final rule 

goes into effect. If, however, the agency 

receives significant adverse comment, 

the agency withdraws the direct final 

rule and treats the comments as 

submissions on the proposed rule. 

OSHA uses direct final rules in the 

SDO rulemaking project because it 

expects the rules to: Be 

noncontroversial; provide protection to 

employees that is at least equivalent to 

the protection afforded to them by the 

outdated SDO standard; and impose no 

significant new compliance costs on 

employers (69 FR 68283, 68285). OSHA 

is using direct final rules to update or, 

when appropriate, revoke references to 

outdated national SDO standards in 

OSHA rules (see, e.g., 69 FR 68283, 70 

FR 76979, and 71 FR 80843). 

For purposes of the direct final rule, 

a significant adverse comment is one 

that explains why the rule would be 

inappropriate, including challenges to 

the rule’s underlying premise or 

approach. In determining whether a 

comment necessitates withdrawal of the 

direct final rule, OSHA will consider 

whether the comment raises an issue 

serious enough to warrant a substantive 

response in a notice-and-comment 

process. OSHA will not consider a 

comment recommending additional 

revisions to a rule to be a significant 

adverse comment unless the comment 

states why the direct final rule would be 

ineffective without the revisions. If 

OSHA receives a timely significant 

adverse comment, the Agency will 

publish a Federal Register notice 

withdrawing the direct final rule no 

later than 90 days after the publication 

date of the notice. 

OSHA believes that the revisions 

made to the Acetylene Standard by this 

direct final rule do not compromise the 

safety of employees, and instead 

enhance employee protection. For 

example, the updated Acetylene 

Standard includes mandatory 

requirements for acetylene piping 

systems, has special requirements for 

high-pressure piping systems, and 

prohibits storage of acetylene cylinders 

in confined spaces—requirements that 

are not included in the current SDO 

standards. The updated SDO standards 

also provide employers with new and 

more extensive information than the 

current standards, which should 

facilitate compliance. OSHA believes 

that replacing the unenforceable SDO 

standard in § 1910.102(b) (i.e., 

Compressed Gas Association Pamphlet 

G–1.3–1959; see discussion below under 

Section III.A (‘‘§ 1910.102(c)— 

Generators and filling cylinders’’)) 

clarifies employers’ compliance 

obligations and prevents inappropriate 

enforcement action, while also 

increasing employee protection. 

The Agency determined that updating 

and replacing the SDO standards in the 

Acetylene Standard is appropriate for 

direct final rulemaking. As described 

below, the revisions will make the 

requirements of OSHA’s Acetylene 

Standard consistent with current 

industry practices, thereby eliminating 

confusion and clarifying employer 

obligations. Eliminating confusion and 

clarifying employer obligations should 

increase employee safety while reducing 

compliance costs. 

III. Summary and Explanation of 

Revisions to the Acetylene Standard 

This direct final rule updates the SDO 

standards referenced in the three 

paragraphs that comprise the Acetylene 

Standard. The Compressed Gas 

Association (CGA) published several 

editions of these SDO standards after 

OSHA adopted them in 1974, and one 

of these standards (i.e., Compressed Gas 

Association Pamphlet G–1.4–1966), is 

no longer available for purchase from 

CGA. Therefore, to ensure that 

employers have access to the latest 

safety requirements for managing 

acetylene, this rulemaking is adopting 

the requirements specified in the most 

recent versions of the SDO standards. 

The following discussion provides a 

summary of the revisions OSHA is 

making to paragraphs (a), (b), and (c) of 

the Acetylene Standard. 

A. Section 1910.102(a)—Cylinders 

For paragraph (a) of § 1910.102, the 

direct final rule is replacing the 

reference to the 1966 edition of CGA 

Pamphlet G–1 (‘‘Acetylene’’) (Ex. 

OSHA–2008–0034–0005) with the most 

recent (i.e., 2003) edition of that 

standard (also entitled ‘‘Acetylene’’) 

((Ex. OSHA–2008–0034–0006). 

According to CGA, the 2003 edition is 

the fifth revision of the standard since 

OSHA adopted the 1966 edition in 1974 

(Ex. OSHA–2008–0034–0003). 

In reviewing CGA–1–2003, OSHA 

identified two provisions in that 

standard that appear to be substantive 


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1Note that both of these flow-rate provisions are 

advisory, not mandatory. 

2See paragraph 5.2.1 of the 1966 edition, and the 

first paragraph of section 6.1 of the 2003 edition. 

3Section 5.3 of the 1966 version regulates the 

withdrawal of acetylene from cylinders. 

4OSHA interprets the phrase ‘‘were approved for 

construction or installation prior to the effective 

date of the standard’’ to mean that construction and 

installation occurred on or after the effective date 

of the standard. 

5OSHA found no such provisions in the 

standard. 

revisions from the 1966 edition. First, 

the last provision of paragraph 5.2 in the 

2003 edition prohibits storing acetylene 

cylinders in confined spaces such as 

drawers, closets, unventilated cabinets, 

automobile trunks, or toolboxes. In 

addition, the document recommends 

that acetylene cylinders should not be 

stored or transported in automobiles or 

any enclosed vehicles. The 1966 edition 

contains neither the above prohibition 

nor recommendation. Second, both 

editions recommend flow rates that will 

minimize withdrawal of liquid solvent 

when releasing acetylene from a 

cylinder; however, the recommended 

flow rates differ between the two 

editions. Paragraph 5.3.3.13 of the 1966 

edition specifies that the flow rate 

should be one-seventh of the capacity of 

the cylinder per hour regardless of the 

duration of use, while paragraph 6.2 of 

the 2003 edition recommends a flow 

rate of one-tenth of the cylinder capacity 

per hour during intermittent use, and 

one-fifteenth of the cylinder capacity 

per hour during continuous use.1

Other differences between the 1966 

and 2003 editions of CGA G–1 include 

adding the following sentence to the 

provision warning employers to avoid 

abnormal mechanical shocks that could 

damage cylinders, valves, and pressurerelief devices: 2 ‘‘This [avoiding 

abnormal mechanical shocks] is 

especially important on those small 

cylinders not equipped with protection 

caps.’’ This sentence notifies employers 

that the valves of small cylinders are 

especially susceptible to damage (and 

possible release of acetylene) because 

protective caps or guards do not cover 

the valves. Similarly, in the 2003 

edition, CGA added a provision to 

section 6.2 (‘‘Withdrawing acetylene 

from cylinders’’) 3 requiring employers 

to ‘‘[v]isually examine the CGA 

connection on the cylinder and remove 

any visible contamination before 

connecting the regulator. Clean out the 

contaminant using nitrogen, air, or a 

clean rag. Avoid opening an acetylene 

cylinder valve without a suitable 

regulator and flow restrictor such as a 

torch attached.’’ This provision prevents 

the following two hazards: (1) 

Acetylene-related explosions (by 

removing contaminants that could serve 

as an ignition source), and (2) massive 

releases of acetylene into the workplace 

(by notifying employers to use suitable 

regulators and restrictors to control the 

rate at which acetylene flows from a 

cylinder). 

The remaining differences between 

the 1966 and 2003 editions include: 

Making plain-language revisions to the 

text; providing measurements using the 

International System of Units; listing 

current Department of Transportation 

specifications; presenting guidance in 

the 2003 edition on how to handle 

leaking cylinders; and noting in the 

2003 edition that commercial acetylene 

generally is considered nontoxic. CGA 

also added text to the 2003 edition that 

prohibits tightening leaking fuseplugs or 

valves while the cylinder is under 

pressure, as well as enhanced 

illustrations (Figure 1) of acetylene 

cylinder-shell constructions. 

OSHA believes that the provisions of 

CGA G–1–2003 are consistent with the 

usual and customary practice of 

employers in the industry, and has 

determined that incorporating CGA G– 

1–2003 into paragraph (a) of § 1910.102 

does not add compliance burden for 

employers. OSHA invites the public to 

comment on whether the revisions 

made to CGA G–1–1966 in the 2003 

edition of the standard represent current 

industry practice. 

B. Section 1910.102(b)—Piped Systems 

CGA no longer publishes CGA 

Pamphlet G–1.3–1959 (‘‘Acetylene 

Transmission for Chemical Synthesis’’) 

(Ex. OSHA–2008–0034–0007). In 

addition, both this standard and its 

recent replacement (i.e., Part 3 of CGA 

G–1.2–2006 (‘‘Acetylene piping’’), (Ex. 

OSHA–2008–0034–0008)) consist 

entirely of advisory provisions. Under 

existing law (see, e.g., Usery v. 

Kennecott Copper Corporation (577 F.2d 

1113 (10th Cir. 1977)), OSHA cannot 

enforce advisory provisions. Therefore, 

this direct final rule revises paragraph 

(b) of § 1910.102 to refer instead to the 

requirements for acetylene piping 

systems specified in Chapter 9 

(‘‘Acetylene Piping’’) of NFPA 51A– 

2006 (‘‘Standard for Acetylene Charging 

Plants’’) (Ex. OSHA–2008–0034–0009) 

or Chapter 7 (‘‘Acetylene Piping’’) of 

NFPA 51A–2001 (‘‘Standard for 

Acetylene Charging Plants’’) (Ex. 

OSHA–2008–0034–0010). Whether 

employers use NFPA 51A–2006 or 

NFPA 51A–2001 depends on when the 

facilities, equipment, structures, or 

installations used to generate acetylene 

or to charge (fill) acetylene cylinders 

were approved for construction or 

installation. (See discussion of which 

NFPA standard applies in Section III.C 

below (‘‘§ 1910.102(c)—Generators and 

filling cylinders’’).) 

The piping-system requirements 

specified in NFPA 51A–2006 or NFPA 

51A–2001 are not as extensive as the 

requirements contained in either CGA 

Pamphlet G–1.3–1959 or Part 3 of CGA 

G–1.2–2006. However, OSHA believes 

that the piping-system requirements in 

the two NFPA standards will provide 

employers with important information 

for installing and maintaining piping 

systems used to transfer acetylene until 

a more detailed (and enforceable) 

standard becomes available. In addition, 

unlike CGA Pamphlet G–1.3–1959, the 

two NFPA standards have special 

requirements for high-pressure 

acetylene piping systems, which OSHA 

believes will likely increase employee 

protection. Meanwhile, paragraph (b)(iv) 

of § 1910.102 refers employers to Part 3 

of CGA G–1.2–2006 for additional 

information on acetylene piping 

systems. 

OSHA believes that the revisions to 

§ 1910.102(b) represent the usual and 

customary practice of the industry 

today. Therefore, OSHA concludes that 

making these revisions will not impose 

an additional compliance burden on 

employers. Accordingly, OSHA requests 

public comment on the extent to which 

the revisions made in § 1910.102(b) 

represent current industry practice. 

C. Section 1910.102(c)—Generators and 

Filling Cylinders 

CGA no longer publishes the 

consensus standard referenced in 

paragraph (c) of CGA G–1.4–1966 

(‘‘Standard for Acetylene Charging 

Plants’’) (Ex. OSHA–2008–0034–0011). 

In 1970, the National Fire Protection 

Association (NFPA) adopted this CGA 

standard as NFPA 51A (‘‘Standard for 

Acetylene Charging Plants’’) (Ex. 

OSHA–2008–0034–0012). NFPA 

manages revisions to this standard, the 

latest versions of which it published in 

2001 and 2006. 

Section 1.4.1 of the 2006 standard 

excepts from the standard any 

‘‘facilities, equipment, structures, or 

installations that existed or were 

approved for construction or installation 

prior to the effective date of the 

standard.’’ 4 This section also states, 

‘‘Where specified, the provisions of this 

standard shall be retroactive.’’ 5

Therefore, this provision requires 

compliance with the entire standard 

only when facilities, equipment, 

structures, or installations were 

approved for construction or installation 

on or after February 16, 2006, the 


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6While not mandated, OSHA encourages 

employers covered by NFPA 51A–2001 to comply 

with the requirements of NFPA 51A–2006. 

effective date of the 2006 standard. 

However, the 2001 edition of NFPA 51A 

(Ex. OSHA–2008–0034–0013) has no 

effective-date provision, and applies 

retroactively to all facilities, equipment, 

structures, or installations that existed 

(or were approved for construction and 

installation) prior to February 16, 2006. 

OSHA is requiring in this direct final 

rule that employers comply with NFPA 

51A–2001, provided they demonstrate 

that the installations, facilities, 

equipment, or structures used to 

generate acetylene or to charge (fill) 

acetylene cylinders existed, or were 

approved for construction or 

installation, prior to February 16, 2006. 

Employers having installations, 

facilities, equipment, or structures 

approved for construction or installation 

on or after February 16, 2006, must 

comply with NFPR 51A–2006.6 By 

removing the reference to an outdated, 

unavailable standard from § 1910.102(c), 

and updating the referenced standards 

to be consistent with current industry 

practices, OSHA believes that the 

revisions to § 1910.102(c) will reduce 

regulatory confusion and ensure up-todate employee protection. 

While many of the differences 

between CGA G–1.4–1966 and NFPA 

51A–2001 and –2006 involve minor 

revisions to the text, usually to update 

the terminology or to improve the 

comprehensibility of the text, a number 

of the differences are substantive. OSHA 

compiled lists of these substantive 

differences, and is making these lists 

available in the docket at http:// 

www.regulations.gov (see Exs. OSHA– 

2008–0034–0014 and –0015). 

OSHA presumes that employers in the 

industry currently apply the 

requirements of NFPA 51A–2001 to 

installations, facilities, equipment, or 

structures constructed or installed prior 

to February 16, 2006, and that they 

apply NFPA 51A–2006 to installations, 

facilities, equipment, or structures 

approved for construction or installation 

on or after February 16, 2006. 

Consequently, OSHA has determined 

that this direct final rule will impose no 

additional compliance burden on these 

employers. OSHA invites the public to 

comment on the extent to which 

employers involved in charging 

acetylene cylinders already comply with 

NFPA 51A–2001 and –2006, as well as 

any additional burden this direct final 

rule imposes on these employers. 

IV. Procedural Determinations 

A. Legal Considerations 

The purpose of the Occupational 

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

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

possible every working man and woman 

in the nation safe and healthful working 

conditions and to preserve our human 

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

this goal, Congress authorized the 

Secretary of Labor to promulgate and 

enforce occupational safety and health 

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

safety or health standard is a standard 

‘‘which requires conditions, or the 

adoption or use of one or more 

practices, means, methods, operations, 

or processes, reasonably necessary or 

appropriate to provide safe or healthful 

employment or places of employment.’’ 

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

reasonably necessary or appropriate 

within the meaning of Section 652(8) 

when a significant risk of material harm 

exists in the workplace and the standard 

would substantially reduce or eliminate 

that workplace risk. 

This direct final rule will not reduce 

the employee protections put into place 

by the standards OSHA is updating 

under this rulemaking. In fact, this 

rulemaking likely will enhance 

employee safety by adding 

requirements, eliminating confusing 

requirements, and clarifying employer 

obligations. Therefore, it is unnecessary 

to determine significant risk, or the 

extent to which this rule would reduce 

that risk, as typically is required by 

Industrial Union Department, AFL–CIO 

v. American Petroleum Institute (448 

U.S. 607 (1980)). 

B. Preliminary Economic Analysis and 

Regulatory Flexibility Act Certification 

The direct final rule is not 

‘‘economically significant’’ as specified 

by Executive Order 12866, or a ‘‘major 

rule’’ under Section 804 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (‘‘SBREFA’’; 5 

U.S.C. 804). The direct final rule does 

not impose significant additional costs 

on any private- or public-sector entity, 

and does not meet any of the criteria for 

an economically significant or major 

rule specified by Executive Order 12866 

and the relevant statutes. (While not 

economically significant, as part of 

OSHA’s regulatory agenda, the direct 

final rule is a ‘‘significant regulatory 

action’’ under Executive Order 12866.) 

The direct final rule simply updates 

references to outdated SDO standards in 

OSHA’s Acetylene Standard. The 

Agency concludes that the revisions 

will not impose any additional costs on 

employers because it believes that the 

updated SDO standards represent the 

usual and customary practice of 

employers in the industry. 

Consequently, the direct final rule 

imposes no costs on employers. 

Therefore, OSHA certifies that it will 

not have a significant impact on a 

substantial number of small entities. 

Accordingly, the Agency is not 

preparing a regulatory flexibility 

analysis under the SBREFA (5 U.S.C. 

601 et seq.). 

C. OMB Review Under the Paperwork 

Reduction Act of 1995 

Neither the existing nor updated SDO 

standards addressed by this direct final 

rule contain collection of information 

requirements. Therefore, this direct final 

rule does not impose or remove any 

information collection requirements for 

purposes of the Paperwork Reduction 

Act of 1995, 44 U.S.C. 3501 et seq. and 

5 CFR part 1320. Accordingly, the 

Agency does not have to prepare an 

Information Collection Request in 

association with this rulemaking. 

Members of the public may respond 

to this paperwork determination by 

sending their written comments to the 

Office of Information and Regulatory 

Affairs, Attn: OSHA Desk Officer (RIN 

1218–AC08), Office of Management and 

Budget, Room 10235, 725 17th Street, 

NW., Washington, DC 20503. The 

Agency encourages commenters to 

submit these comments to the 

rulemaking docket, along with their 

comments on other parts of the direct 

final rule. For instructions on 

submitting these comments and 

accessing the docket, see the sections of 

this Federal Register notice titled DATES

and ADDRESSES. However, OSHA will 

not consider any comment received on 

this paperwork determination to be a 

‘‘significant adverse comment’’ as 

specified under Section II (‘‘Direct Final 

Rulemaking’’) of this notice. 

To make inquiries, or to request other 

information, contact Mr. Todd Owen, 

Directorate of Standards and Guidance, 

OSHA, Room N–3609, U.S. Department 

of Labor, 200 Constitution Avenue, 

NW., Washington, DC 20210; telephone 

(202) 693–2222. 

D. Federalism 

OSHA reviewed this direct final rule 

in accordance with the Executive Order 

on Federalism (Executive Order 13132, 

64 FR 43255, August 10, 1999), which 

requires that Federal agencies, to the 

extent possible, refrain from limiting 

State policy options, consult with States 

prior to taking any actions that would 

restrict State policy options, and take 

such actions only when clear 

constitutional authority exists and the 


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problem is national in scope. Executive 

Order 13132 provides for preemption of 

State law only with the expressed 

consent of Congress. Any such 

preemption must be limited to the 

extent possible. 

Under Section 18 of the Occupational 

Safety and Health Act of 1970 (‘‘OSH 

Act’’; U.S.C. 651 et seq.), Congress 

expressly provides that States may 

adopt, with Federal approval, a plan for 

the development and enforcement of 

occupational safety and health 

standards; States that obtain Federal 

approval for such a plan are referred to 

as ‘‘State-Plan States.’’ (29 U.S.C. 667.) 

Occupational safety and health 

standards developed by State-Plan 

States must be at least as effective in 

providing safe and healthful 

employment and places of employment 

as the Federal standards. Subject to 

these requirements, State-Plan States are 

free to develop and enforce their own 

requirements for occupational safety 

and health standards. 

While OSHA drafted this direct final 

rule to protect employees in every State, 

Section 18(c)(2) of the Act permits StatePlan States and Territories to develop 

and enforce their own standards for 

acetylene operations provided these 

requirements are at least as effective in 

providing safe and healthful 

employment and places of employment 

as the requirements specified in this 

direct final rule. 

In summary, this direct final rule 

complies with Executive Order 13132. 

In States without OSHA-approved State 

Plans, any standard developed from this 

direct final rule would limit State policy 

options in the same manner as every 

standard promulgated by OSHA. In 

States with OSHA-approved State Plans, 

this rulemaking would not significantly 

limit State policy options. 

E. State-Plan States 

When Federal OSHA promulgates a 

new standard or a more stringent 

amendment to an existing standard, the 

26 States or U.S. Territories with their 

own OSHA-approved occupational 

safety and health plans (‘‘State-Plan 

States’’) must amend their standards to 

reflect the new standard or amendment, 

or show OSHA why such action is 

unnecessary (e.g., because an existing 

State standard covering this area is 

already ‘‘at least as effective’’ as the new 

Federal standard or amendment. (29 

CFR 1953.5(a).) The State standard must 

be at least as effective as the final 

Federal rule, must be applicable to both 

the private and public (State and local 

government employees) sectors, and 

must be completed within six months of 

the publication date of the final Federal 

rule. When OSHA promulgates a new 

standard or amendment that does not 

impose additional or more stringent 

requirements than the existing standard, 

State-Plan States are not required to 

amend their standards, although OSHA 

may encourage them to do so. 

OSHA has determined that the StatePlan States must adopt provisions 

comparable to the provisions in this 

direct final rule within six months after 

the effective date of the rule. OSHA 

believes that the provisions of this 

direct final rule provide employers in 

State-Plan States and Territories with 

new and critical information and 

methods necessary to protect their 

employees from the hazards found in 

and around workplaces engaged in 

acetylene operations. The 26 States and 

territories with OSHA-approved State 

Plans are: Alaska, Arizona, California, 

Connecticut, Hawaii, Indiana, Iowa, 

Kentucky, Maryland, Michigan, 

Minnesota, Nevada, New Mexico, New 

Jersey, New York, North Carolina, 

Oregon, Puerto Rico, South Carolina, 

Tennessee, Utah, Vermont, Virginia, 

Virgin Islands, Washington, and 

Wyoming. Connecticut, New Jersey, 

New York, and the Virgin Islands have 

OSHA-approved State Plans that apply 

to State and local government 

employees only. Until a State-Plan 

State/Territory promulgates its own 

comparable provisions based on this 

direct final rule, Federal OSHA will 

provide the State/Territory with interim 

enforcement assistance, as appropriate. 

F. Unfunded Mandates Reform Act of 

1995 

OSHA reviewed this direct final rule 

in accordance with the Unfunded 

Mandates Reform Act of 1995 

(‘‘UMRA’’; 2 U.S.C. 1501 et seq.) and 

Executive Order 12875 (56 FR 58093). 

As discussed above in Section IV.B 

(‘‘Preliminary Economic Analysis and 

Regulatory Flexibility Act 

Certification’’) of this notice, the Agency 

determined that this direct final rule 

will not impose additional costs on any 

private- or public-sector entity. 

Accordingly, this direct final rule 

requires no additional expenditures by 

either public or private employers. 

As noted above under Section IV.E 

(‘‘State-Plan States’’) of this notice, the 

Agency’s standards do not apply to 

State and local governments except in 

States that have elected voluntarily to 

adopt a State Plan approved by the 

Agency. Consequently, this direct final 

rule does not meet the definition of a 

‘‘Federal intergovernmental mandate’’ 

(see Section 421(5) of the UMRA (2 

U.S.C. 658(5))). Therefore, for the 

purposes of the UMRA, the Agency 

certifies that this direct final rule does 

not mandate that State, local, or tribal 

governments adopt new, unfunded 

regulatory obligations, or increase 

expenditures by the private sector of 

more than $100 million in any year. 

G. Public Participation 

OSHA requests comments on all 

issues concerning this direct final rule. 

The Agency also welcomes comments 

on its determination that this direct 

final rule has no negative economic or 

other regulatory impacts on employers, 

and will increase employee protection. 

If OSHA receives no significant adverse 

comment, it will publish a Federal 

Register document confirming the 

effective date of this direct final rule 

and withdrawing the companion 

proposed rule. Such confirmation may 

include minor stylistic or technical 

corrections to the document. A full 

discussion of what constitutes a 

significant adverse comment is 

discussed above in Section II (‘‘Direct 

Final Rulemaking’’). 

The Agency will withdraw this direct 

final rule if it receives significant 

adverse comment on the amendments 

contained in it, and proceed with the 

companion proposed rule by addressing 

the comment(s) and publishing a new 

final rule. Should the Agency receive a 

significant adverse comment regarding 

some actions taken in the direct final 

rule, but not others, it may (1) finalize 

those actions that did not receive 

significant adverse comment, and (2) 

conduct further rulemaking under the 

companion proposed rule for the actions 

that received significant adverse 

comment. The comment period for this 

direct final rule runs concurrently with 

that of the companion proposed rule. 

Therefore, any comments received 

under this direct final rule will be 

treated as comments regarding the 

companion proposed rule. Similarly, 

OSHA will consider a significant 

adverse comment submitted to this 

direct final rule as a comment to the 

companion proposed rule; the Agency 

will consider such a comment in 

developing a subsequent final rule. 

Comments received will be posted 

without revision to http:// 

www.regulations.gov, including any 

personal information provided. 

Accordingly OSHA cautions 

commenters about submitting personal 

information such as Social Security 

numbers and birth dates. 

List of Subjects in 29 CFR Part 1910 

Acetylene, General industry, 

Incorporation by reference, 

Occupational safety and health, Safety. 


srobinson on DSKHWCL6B1PROD with RULES4
Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Rules and Regulations 40447 

V. Authority and Signature 

Jordan Barab, Acting Assistant 

Secretary of Labor for Occupational 

Safety and Health, U.S. Department of 

Labor, 200 Constitution Avenue, NW., 

Washington, DC 20210, directed the 

preparation of this notice. The Agency 

is issuing this notice under Sections 4, 

6, and 8 of the Occupational Safety and 

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

657), Secretary of Labor’s Order 5–2007 

(72 FR 31159), and 29 CFR part 1911. 

Signed at Washington, DC on July 30, 2009. 

Jordan Barab, 

Acting Assistant Secretary of Labor for 

Occupational Safety and Health. 

■ For the reasons stated above in the 

preamble, OSHA is amending 29 CFR 

part 1910 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, 8, Occupational 

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

655, 657); Secretary of Labor’s Order 

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

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

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

50017), 5–2002 (67 FR 65008), and 5–2007 

(72 FR 31159), as applicable. 

Sections 1910.7 and 1910.8 also issued 

under 29 CFR part 1911. Section 1910.7(f) 

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

9a, 5 U.S.C. 553; Public Law 106–113 (113 

Stat. 1501A–222); and OMB Circular A–25 

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

1993). 

■ 2. Amend § 1910.6 as follows: 

■ A. Revise paragraph (k)(3). 

■ B. Remove paragraphs (k)(4) and 

(k)(5), and redesignate paragraphs (k)(6) 

through (k)(15) as paragraphs (k)(4) 

through (k)(13). 

■ C. Add new paragraphs (q)(34) and 

(q)(35). 

The additions and revisions read as 

follows: 

§ 1910.6 Incorporation by reference. 

* * * * * 

(k) * * * 

(3) CGA G–1–2003 Acetylene, IBR 

approved for § 1910.102(a). Copies of 

CGA Pamphlet G–1–2003 are available 

for purchase from the: Compressed Gas 

Association, Inc., 4221 Walney Road, 

5th Floor, Chantilly, VA 20151; 

telephone: 703–788–2700; fax: 703– 

961–1831; e-mail: cga@cganet.com. 

* * * * * 

(q) * * * 

(34) NFPA 51A (2001) Standard for 

Acetylene Cylinder Charging Plants, IBR 

approved for § 1910.102(b) and (c). 

Copies of NFPA 51A–2001 are available 

for purchase from the: National Fire 

Protection Association, 1 Batterymarch 

Park, Quincy, MA 02169–7471; 

telephone: 1–800–344–35557; e-mail: 

custserv@nfpa.org. 

(35) NFPA 51A (2006) Standard for 

Acetylene Cylinder Charging Plants, IBR 

approved for § 1910.102(b) and (c). 

Copies of NFPA 51A–2006 are available 

for purchase from the: National Fire 

Protection Association, 1 Batterymarch 

Park, Quincy, MA 02169–7471; 

telephone: 1–800–344–35557; e-mail: 

custserv@nfpa.org. 

* * * * * 

Subpart H—[Amended] 

■ 3. Revise the authority citation for 

subpart H of part 1910 to read as 

follows: 

Authority: Sections 4, 6, and 8 of the 

Occupational Safety and Health Act of 1970 

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

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

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

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

50017), 5–2002 (67 FR 65008), or 5–2007 (72 

FR 31159), as applicable; and 29 CFR part 11. 

Sections 1910.103, 1910.106 through 

1910.111, and 1910.119, 1910.120, and 

1910.122 through 1910.126 also issued under 

29 CFR part 1911. 

Section 1910.119 also issued under Section 

304, Clean Air Act Amendments of 1990 

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

Note. 

Section 1910.120 also issued under Section 

126, Superfund Amendments and 

Reauthorization Act of 1986 as amended (29 

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

■ 4. Revise § 1910.102 to read as 

follows: 

§ 1910.102 Acetylene. 

(a) Cylinders. Employers must ensure 

that the in-plant transfer, handling, 

storage, and use of acetylene in 

cylinders comply with the provisions of 

CGA Pamphlet G–1–2003 (‘‘Acetylene’’) 

(Compressed Gas Association, Inc., 11th 

ed., 2003). 

(b) Piped systems. (1) Employers must 

comply with Chapter 9 (‘‘Acetylene 

Piping’’) of NFPA 51A–2006 (‘‘Standard 

for Acetylene Charging Plants’’) 

(National Fire Protection Association, 

2006 ed., 2006). 

(2) When employers can demonstrate 

that the facilities, equipment, structures, 

or installations used to generate 

acetylene or to charge (fill) acetylene 

cylinders were installed prior to 

February 16, 2006, these employers may 

comply with the provisions of Chapter 

7 (‘‘Acetylene Piping’’) of NFPA 51A– 

2001 (‘‘Standard for Acetylene Charging 

Plants’’) (National Fire Protection 

Association, 2001 ed., 2001). 

(3) The provisions of § 1910.102(b)(2) 

also apply when the facilities, 

equipment, structures, or installations 

used to generate acetylene or to charge 

(fill) acetylene cylinders were approved 

for construction or installation prior to 

February 16, 2006, but constructed and 

installed on or after that date. 

(4) For additional information on 

acetylene piping systems, see CGA G– 

1.2–2006, Part 3 (‘‘Acetylene piping’’) 

(Compressed Gas Association, Inc., 3rd 

ed., 2006). 

(c) Generators and filling cylinders. 

(1) Employers must ensure that 

facilities, equipment, structures, or 

installations used to generate acetylene 

or to charge (fill) acetylene cylinders 

comply with the provisions of NFPA 

51A–2006 (‘‘Standard for Acetylene 

Charging Plants’’) (National Fire 

Protection Association, 2006 ed., 2006). 

(2) When employers can demonstrate 

that the facilities, equipment, structures, 

or installations used to generate 

acetylene or to charge (fill) of acetylene 

cylinders were constructed or installed 

prior to February 16, 2006, these 

employers may comply with the 

provisions of NFPA 51A–2001 

(‘‘Standard for Acetylene Charging 

Plants’’) (National Fire Protection 

Association, 2001 ed., 2001). 

(3) The provisions of § 1910.102(c)(2) 

also apply when the facilities, 

equipment, structures, or installations 

were approved for construction or 

installation prior to February 16, 2006, 

but constructed and installed on or after 

that date. 

[FR Doc. E9–18644 Filed 8–10–09; 8:45 am] 

BILLING CODE 4510–26–P 


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