63238 Federal Register / Vol. 71, No. 209 / Monday, October 30, 2006 / Rules and Regulations 

§ 1004.5 Procedures for announcing 

meetings. 

(a) In the case of each meeting, the 

IAF shall make public, at least one week 

before the meeting, of the time, place 

and subject matter of the meeting, 

whether it is to be open or closed to the 

public, and the name and phone 

number of the official designated by the 

IAF to respond to requests for 

information about the meeting. Such 

announcement shall be made unless a 

majority of the Board of Directors of the 

IAF determines by a recorded vote that 

the IAF requires that such a meeting be 

called at an earlier date, in which case 

the IAF shall make public 

announcement of the time, place and 

subject matter of such meeting and 

whether open or closed to the public, at 

the earliest practical time. 

(b) Immediately following the public 

announcement, the IAF will submit 

notice for publication in the Federal 

Register. 

(c) The IAF shall also make public the 

announcement by other reasonable 

means, accessible to the public. 

§ 1004.6 Procedures for closing meetings. 

(a) The closing of a meeting or a 

portion of a meeting shall occur only 

when: 

(1) A majority of the membership of 

the IAF Board votes to take such action. 

That vote shall determine whether or 

not any portion or portions of a meeting 

or portions of a series of meetings may 

be closed to public observation for any 

of the reasons provided in § 1004.4 and 

whether or not the public interest 

nevertheless requires that portion of the 

meeting or meetings remain open. A 

single vote may be taken with respect to 

a series of meetings, a portion or 

portions of which are proposed to be 

closed to the public, or with respect to 

any information concerning such series 

of meetings, so long as each meeting in 

such series involves the same particular 

matters and is scheduled to be held no 

more than thirty days after the initial 

meeting in such series. The vote of each 

Board member participating in such 

vote shall be recorded and no proxies 

shall be allowed. 

(2) Whenever any person whose 

interests may be directly affected by a 

portion of a meeting requests that the 

IAF close such portion to the public for 

any of the reasons referred to in § 1004.4 

the IAF, upon request of any one of its 

Board members, shall take a recorded 

vote, whether to close such portion of 

the meeting. 

(b) Within one day of any vote taken 

pursuant to this Section, the IAF shall 

make publicly available a written copy 

of such vote reflecting the vote of each 

member on the question and full written 

explanation of its action closing the 

entire or portion of the meeting together 

with a list of persons expecting to attend 

the meeting and their affiliation. 

(c) The IAF shall, subject to change, 

announce the time, place and subject 

matter of the meeting at least 7 days 

before the meeting. 

(d) For every closed meeting pursuant 

to § 1004.4, the General Counsel of the 

IAF shall publicly certify prior to a 

Board of Directors’ vote on closing the 

meeting, that, in his or her opinion, the 

meeting may be closed to the public and 

shall state each relevant exemptive 

provision. A copy of such certification, 

together with a statement from the 

presiding officer of the meeting setting 

forth the time and place of the meeting, 

and the persons present, shall be 

retained by the IAF. 

§ 1004.7 Reconsideration of opening or 

closing of meeting. 

The time or place of a Board meeting 

may be changed, without vote, 

following public announcement. The 

IAF will announce any such change at 

the earliest practicable time. The subject 

matter of a meeting, or the 

determination of the agency to open or 

close a meeting, or portion of a meeting, 

to the public, may be changed only if a 

majority of the Board of Directors 

determines by a recorded vote that IAF 

business so requires and that no earlier 

announcement of the change was 

possible, and the IAF publicly 

announces such change and the vote of 

each member upon such change at the 

earliest practicable time. 

§ 1004.8 Transcripts, recording of closed 

meetings. 

(a) The IAF shall maintain a complete 

transcript or electronic recording 

adequate to record fully the proceedings 

of each meeting, or portion of a meeting, 

closed to the public, except that in the 

case of a meeting, or portion of a 

meeting, closed to the public pursuant 

to paragraph (d), (h), or (j) of § 1004.4, 

the IAF shall maintain either such a 

transcript or recording, or a set of 

minutes. Such records shall fully and 

clearly describe all matters discussed 

and shall provide a full and accurate 

summary of any actions taken, and the 

reasons therefore, including a 

description of each of the views 

expressed on any item and the record of 

any roll call vote (reflecting the vote of 

each member on the question). All 

documents considered in connection 

with any action shall be identified in 

such records. 

(b) The IAF, after review by the 

General Counsel shall make promptly 

available to the public, in a place easily 

accessible to the public, the transcript or 

electronic recording or minutes of the 

discussion of any time on the agenda, or 

any item of the testimony of any witness 

received at the Board meeting, except 

for such item or items of such 

discussion or testimony as the IAF 

determines to contain information 

which may be withheld under § 1004.4. 

Copies of such transcript, or a 

transcription of such recording 

disclosing the identity of each speaker, 

shall be furnished to any person at the 

actual cost of duplication or 

transcription. The IAF shall maintain a 

complete verbatim copy of the 

transcript, a complete copy of the 

minutes or a complete electronic 

recording of each meeting, or portion of 

a meeting, closed to the public, for a 

period of at least two years after such 

meeting, or until one year after the 

conclusion or any IAF proceedings with 

respect to which the meeting or portion 

was held, whichever occurs later. 

Dated: October 13, 2006. 

Jennifer R. Hodges, 

General Counsel. 

[FR Doc. E6–18073 Filed 10–27–06; 8:45 am] 

BILLING CODE 7025–01–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1910 

[Docket No. H054A] 

RIN 1218–AB45 

Occupational Exposure to Hexavalent 

Chromium 

AGENCY: Occupational Safety and Health 

Administration (OSHA), Department of 

Labor. 

ACTION: Final rule. 

SUMMARY: The Occupational Safety and 

Health Administration (OSHA) is 

making a minor amendment to its final 

rule governing occupational exposure to 

hexavalent chromium in general 

industry, which was promulgated on 

February 28, 2006. This amendment 

implements a settlement agreement 

(Agreement) entered into among OSHA, 

the Surface Finishing Industry Council 

(SFIC), Public Citizen Health Research 

Group (HRG), and the United Steel, 

Paper and Forestry, Rubber, 

Manufacturing, Energy, Allied 

Industrial and Service Workers 

International Union (Steelworkers) on 

October 25, 2006, to resolve SFIC’s legal 

challenge to the standard. 


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Federal Register / Vol. 71, No. 209 / Monday, October 30, 2006 / Rules and Regulations 63239 

DATES: The amendment in this 

document will be effective November 

29, 2006. Declarations of Party Status 

must be received by OSHA or 

postmarked on or before November 30, 

2006. 

ADDRESSES: In accordance with the 

instructions in Section IV of this notice, 

Declarations of Party Status must be 

submitted to Richard Fairfax, Director of 

Enforcement Programs, Occupational 

Safety and Health Administration, 200 

Constitution Ave., NW., Room N3119, 

Washington, DC 20210; Fax: (202) 693–

1681. 

FOR FURTHER INFORMATION CONTACT: 

Richard Fairfax, Director of Enforcement 

Programs, Occupational Safety and 

Health Administration, 200 Constitution 

Ave., NW., Room N3119, Washington, 

DC 20210; telephone (202) 693–2190. 

SUPPLEMENTARY INFORMATION: 

I. Background 

OSHA promulgated its final rule 

governing occupational exposure to 

hexavalent chromium (also written as 

chromium (VI) or Cr(VI)) in general 

industry (the standard) on February 28, 

2006. See 71 FR 10100–385. The 

standard requires employers to use 

feasible engineering and work practice 

controls to reduce and maintain 

employee exposures to Cr(VI) at or 

below the permissible exposure limit 

(PEL) of 5 micrograms per cubic meter 

of air (5 μg/m3), calculated as an 8-hour 

time-weighted average (TWA). If an 

employer can demonstrate that feasible 

engineering and work practice controls 

are not sufficient to reduce exposures to 

or below the PEL, it must use those 

controls to attain the lowest levels 

achievable and then provide affected 

employees with supplemental 

respiratory protection. 29 CFR 

1910.1026(f). The standard also requires 

employers to provide respiratory 

protection for employees during periods 

when feasible engineering and work 

practice controls are being installed, 

during emergencies, and in certain other 

situations. 29 CFR 1910.1026(g)(1). 

Although employers have until May 31, 

2010, to implement feasible engineering 

controls, they must begin to comply 

with respirator requirements by 

November 27, 2006 (for employers with 

20 or more employees) and May 30, 

2007 (for employers with 19 or fewer 

employees). 29 CFR 1910.1026(n). 

SFIC, a trade association whose 

members are primarily surface- and 

metal-finishing (electroplating) job 

shops, filed a timely petition for review 

of the standard in the United States 

Court of Appeals for the Eleventh 

Circuit. SFIC’s petition was 

consolidated with other petitions for 

review of the standard, including one 

filed jointly by HRG and the 

Steelworkers on behalf of workers 

affected by the standard, in the United 

States Court of Appeals for the Third 

Circuit. 

SFIC, OSHA, HRG and the 

Steelworkers engaged in settlement 

negotiations to resolve SFIC’s challenge 

to the standard. The negotiations 

resulted in OSHA, SFIC, HRG, and the 

Steelworkers agreeing to the settlement 

being attached to the standard as 

Appendix A. Eligible SFIC members and 

other metal- and surface-finishing job 

shop facilities may become parties to 

this Agreement by following the 

instructions in Section IV of this notice. 

The Agreement creates an optional, 

alternative compliance timetable for 

metal- and surface-finishing operations 

at eligible worksites. Facilities that elect 

to participate must implement 

engineering controls on an expedited 

schedule (by December 31, 2008), but 

will have relief from certain respirator 

requirements in the interim. (See 

Section II below for a detailed summary 

of the Agreement.) This is not a material 

change to the substantive requirements 

of the standard, and therefore the 

amendment does not require a new 

finding of significant risk. See Industrial 

Union Department, AFL–CIO v. 

American Petroleum Institute, 448 U.S. 

607 (1980). See also 71 FR at 10221–25. 

Moreover, this Agreement is 

conceptually consistent with findings 

OSHA made during the original 

rulemaking—namely that engineering 

controls are preferable to respiratory 

protection and that electroplating job 

shops will face unique economic 

feasibility issues in complying with the 

PEL of 5 μg/m3 using either respirators 

or engineering controls. 

In the preamble to the final standard, 

OSHA explained its longstanding 

preference for engineering and work 

practice controls over respiratory 

protection. The agency concluded that 

respirators do not ‘‘provide the same 

degree of protection’’ as other types of 

controls. 71 FR at 10335. OSHA stated 

that the ‘‘use of respirators in the 

workplace presents a number of 

independent safety and health 

concerns.’’ Id. Those concerns include 

the impairment of vision and 

communication, the physiological 

burdens associated with the weight of 

the respirator, and the increased 

breathing resistance experienced during 

respirator use. Id. OSHA also concluded 

that ‘‘respirators are inherently less 

reliable than engineering and work 

practice controls’’ insofar as the 

effectiveness of respirators depends on 

appropriate selection and fit, proper 

use, and proper maintenance—all 

conditions that ‘‘can be difficult to 

attain, and are subject to human error.’’

Id. In contrast, OSHA found that 

‘‘[e]ngineering controls are reliable, 

provide consistent levels of protection 

to a large number of workers, can be 

monitored, allow for predictable 

performance levels, and can efficiently 

remove a toxic substance from the 

workplace.’’ 71 FR at 10345. 

In its economic feasibility analysis, 

OSHA concluded that the record did not 

support a finding that the proposed PEL 

of 1 μg/m3 was economically feasible for 

electroplating job shops. Based upon the 

evidence in the record, OSHA found 

that the cost of compliance with the 

proposed PEL of 1 μg/m3 could 

jeopardize the competitive structure of 

the industry. Although OSHA 

ultimately concluded that the final PEL 

of 5 μg/m3 is economically feasible for 

electroplating job shops, the agency also 

found that the cost of compliance will 

have a very significant adverse 

economic impact on this industry. 71 

FR at 10301. OSHA considered whether 

permitting the use of respirators in lieu 

of engineering controls would alleviate 

any of the economic burden on this 

industry, but concluded that for these 

facilities ‘‘respirator use would be 

almost as expensive as using 

engineering controls.’’ 71 FR at 10310. 

See also 71 FR at 10301. 

In light of the aforementioned 

findings, OSHA considers it reasonable 

to provide eligible facilities with the 

option of devoting their resources to 

implementing engineering controls on 

an expedited basis instead of to interim 

respirator requirements. OSHA believes 

that the Agreement and corresponding 

amendment to the standard will have 

the positive result of expediting the 

installation of engineering controls for a 

narrow group of employers with unique 

economic feasibility concerns. Although 

the Agreement will provide 

participating electroplating facilities 

with temporary, limited relief from 

short-term respirator requirements, 

provisions in the Agreement (discussed 

more fully in Section II of this notice) 

ensure that those facilities will still 

provide respirators in certain situations, 

e.g., for certain metal-finishing tasks 

when exposures exceed the PEL and for 

any other employees who request 

respiratory protection. 

In entering into the Agreement and 

adopting this amendment, OSHA did 

not make and is not presently making 

any representations regarding its 

enforcement of the hexavalent 

chromium standard in facilities that are 

not parties to the Agreement. Moreover, 


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63240 Federal Register / Vol. 71, No. 209 / Monday, October 30, 2006 / Rules and Regulations 

neither the Agreement nor the 

corresponding amendment to the 

standard have any relationship to 

OSHA’s enforcement of any other 

occupational safety or health standards. 

II. Explanation of the Agreement 

Amendment to the Compliance Date 

Provisions 

OSHA is amending the hexavalent 

chromium standard for general industry 

(29 CFR 1910.1026) as follows: 

(1) Existing paragraph 1910.1026(n)(3) 

is being amended to clarify that 

facilities that are parties to the 

Agreement are covered by the 

compliance deadline in new paragraph 

(n)(4) instead of the otherwise 

applicable May 31, 2010, compliance 

deadline for engineering controls; 

(2) A new paragraph, 1910.1026(n)(4), 

is being added to the standard to 

provide that facilities that are parties to 

the Agreement must implement feasible 

engineering controls by December 31, 

2008; and 

(3) The Agreement between OSHA, 

SFIC, HRG, and the Steelworkers is 

being attached to the standard as 

Appendix A. 

Facilities that become parties to the 

Agreement must comply with all 

provisions of the standard in accordance 

with the compliance dates set forth in 

29 CFR 1910.1026(n), as amended, 

except that in certain circumstances 

(described below) OSHA will not 

enforce respirator requirements in those 

facilities prior to December 31, 2008. 

Accelerated Implementation of 

Engineering Controls 

Facilities that become parties to the 

Agreement must implement those 

feasible engineering controls necessary 

to reduce hexavalent chromium levels at 

their facilities to or below the 5 μg/m3

PEL, in accordance with 29 CFR 

1910.1026(f)(1), by December 31, 2008. 

In fulfilling this obligation, the facilities 

may select from the engineering and 

work practice controls listed in Exhibit 

A to this Agreement or adopt any other 

controls. 

Respirator Enforcement 

With the exception of the six classes 

of employees described below, OSHA 

has agreed not to enforce the respirator 

protection provisions at 29 CFR 

1910.1026(f) and (g) prior to December 

31, 2008, for metal- and surfacefinishing operations in facilities that are 

parties to, and are complying with, the 

Agreement. The six classes of 

employees for which OSHA will enforce 

all of the standard’s respiratory 

protection provisions are as follows: 

(1) Employees who are exposed to 

Cr(VI) in excess of the PEL while 

performing tasks described in Exhibit B 

to the Agreement. These tasks, as 

described more completely in Exhibit B, 

include Cr(VI) chemical additions, 

Cr(VI) preparation and mixing, Cr(VI) 

tank cleaning, and Cr(VI) painting 

operations. 

(2) Through November 30, 2007, 

employees whose exposures to Cr(VI) 

exceed an interim ‘‘respirator 

threshold’’ of 20 μg/m3 (measured as an 

8-hour time-weighted average). 

(3) Beginning December 1, 2007, 

employees whose exposures to Cr(VI) 

exceed an interim ‘‘respirator 

threshold’’ of 12.5 μg/m3 (measured as 

an 8-hour time-weighted average). 

(4) Employees who are exposed to 

Cr(VI) and request a respirator. 

(5) Any other employees who are 

required by their employers to wear a 

respirator. 

(6) Employees with exposures for 

which respirators were required under 

the previous Cr(VI) standard at 29 CFR 

1910.1000, and any other employees 

covered by respirator programs in effect 

on May 30, 2006. 

Compliance Plan and Monitoring 

The standard requires all employers, 

including facilities that are parties to the 

Agreement, to make an initial exposure 

determination for each employee 

exposed to Cr(VI). Facilities that are 

parties to the Agreement may do this 

using either the monitoring option 

described at 29 CFR 1910.1026(d)(2)(i) 

(which involves taking a sufficient 

number of personal breathing zone air 

samples to accurately characterize full 

shift exposure on each shift, for each job 

classification, in each work area) or the 

performance-oriented option described 

at 29 CFR 1910.1026(d)(3) (which 

involves using any combination of air 

monitoring data, historical monitoring 

data, or objective data sufficient to 

accurately characterize employee 

exposures). 

Thereafter, each facility that is a party 

to the Agreement must conduct periodic 

monitoring in accordance with the 

Scheduled Monitoring Option provision 

at 29 CFR 1910.1026(d)(2). Under this 

provision, if monitoring reveals 

employee exposures to be above the 

PEL, the employer shall perform 

periodic monitoring at least every three 

months. If monitoring reveals employee 

exposures to be at or above the action 

level of 2.5 μg/m3 (as an 8-hour TWA), 

the employer shall perform periodic 

monitoring at least every six months. If 

monitoring indicates that employee 

exposures are below the action level, the 

employer may discontinue monitoring 

for those employees whose exposures 

are represented by such monitoring. 

The standard requires employers to 

notify employees whenever an exposure 

determination indicates exposures 

above the PEL. This notification must be 

in writing and must describe the 

corrective actions being taken to reduce 

employee exposures to or below the 

PEL. 29 CFR 1910.1026(d)(4). In 

accordance with this requirement, 

facilities that are parties to the 

Agreement must prepare a written 

compliance plan that sets forth the 

specific control steps being taken to 

reduce exposures to or below the PEL 

and must update that plan each time 

monitoring reveals exposures above the 

PEL. 

Upon request, compliance plans and 

monitoring results must be provided to 

OSHA, affected employees and 

employee representatives. 

Training 

In addition to training employees as 

required by Section 1026(l)(2) of the 

standard, facilities that are parties to the 

Agreement must train their employees 

in the provisions of the Agreement 

within sixty (60) days of the Opt-in Date 

(see Section IV). This training must be 

provided in a manner and language the 

employees can understand. 

Facilities That Are Not Parties to the 

Agreement 

The terms of the Agreement and the 

amendment being made to Section (n) of 

the standard have no impact on the 

compliance requirements applicable to 

facilities that are not eligible to or do 

not elect to become parties to the 

Agreement. Facilities that are not parties 

to the Agreement must comply with all 

respirator requirements beginning on 

the applicable compliance date 

(November 27, 2006 for employers with 

20 or more employees and May 30, 2007 

for employers with 19 or fewer 

employees) and will have until May 31, 

2010 to implement feasible engineering 

controls. 

III. Eligibility Criteria 

An employer’s facility is eligible to 

become a party to the Agreement if (1) 

The employer is a member of SFIC or 

the facility is a surface-finishing or 

metal-finishing job shop that sells 

plating or anodizing services to other 

companies; and (2) the facility is within 

the jurisdiction of Federal OSHA. The 

terms of the Agreement apply only to 

surface- and metal-finishing operations 

in those facilities. 


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IV. Instructions for Eligible Facilities 

Employers can make their eligible 

facilities parties to the Agreement by 

completing a Declaration of Party 

Status. Declarations are available on 

OSHA’s Web site at http:// 

www.osha.gov/SLTC/ 

hexavalentchromium/ 

hexchrom_settlement.html. A separate 

declaration must be completed for each 

facility. Questions about eligibility and 

other inquires about becoming a party to 

the Agreement can be directed to 

OSHA’s Office of Health Enforcement at 

(202) 693–2190 

Completed declarations must be 

mailed or sent by facsimile to: Richard 

Fairfax, Director of Enforcement 

Programs, Occupational Safety and 

Health Administration, 200 Constitution 

Ave., NW., Room N3119, Washington, 

DC 20210; Fax: (202) 693–1681. 

Declarations of Party Status must be 

received by OSHA or postmarked on or 

before November 30, 2006. For purposes 

of the Settlement Agreement, this 

deadline is known as the ‘‘Opt-in Date.’’

V. Instructions for Facilities in State 

Plan Jurisdictions 

SFIC members and other 

electroplating job shop facilities within 

the jurisdiction of OSHA-approved State 

occupational safety and health plans 

may contact their State plan agencies to 

determine if their State programs will 

honor and implement the terms of this 

Federal Agreement, including the 

amendment to the standard, or take an 

alternative position, which may include 

entering into separate arrangements 

with surface- and metal-finishing job 

shop facilities or their representatives. 

The 22 State plans covering the private 

sector are in Alaska, Arizona, California, 

Hawaii, Indiana, Iowa, Kentucky, 

Maryland, Michigan, Minnesota, 

Nevada, New Mexico, North Carolina, 

Oregon, Puerto Rico, South Carolina, 

Tennessee, Utah, Vermont, Virginia, 

Washington, and Wyoming. Contact 

information for these State plans is 

available on OSHA’s Web site at http:// 

www.osha.gov/fso/osp/index.html. 

VI. Pertinent Legal Authority 

This amendment is published under 

authority of the Occupational Safety and 

Health Act and the Administrative 

Procedure Act (APA). See 29 U.S.C. 

651(b), 655, and 5 U.S.C. 553. OSHA 

promulgated the Cr(VI) standard in 

February 2006, after extensive noticeand-comment rulemaking proceedings. 

For the reasons set forth below, 

additional public notice and comment 

for the amendment described in this 

notice is not required. 

The amendment described in this 

notice applies only to surface-finishing 

and metal-finishing (electroplating) 

operations in eligible facilities that 

voluntarily elect to participate in the 

alternative timetable for compliance. It 

follows that the only entities and 

persons affected by this amendment are 

(1) Employers who operate those 

facilities and (2) employees who work 

in those facilities. To a significant 

extent, employers and employees had 

actual notice of, and ample opportunity 

to comment on, this amendment by 

virtue of the participation of 

representatives (SFIC for employers, and 

HRG and the Steelworkers for 

employees) in the settlement 

negotiations preceding publication of 

this notice. 

Under the APA, the agency may make 

a ‘‘good cause’’ finding that notice and 

comment would be impracticable, 

unnecessary, or contrary to the public 

interest. 5 U.S.C. 553(b)(B). In this 

instance, OSHA finds that public notice 

and comment for this minor amendment 

is both unnecessary and impracticable. 

OSHA’s determination that good cause 

exists for proceeding without additional 

notice and comment is based on the 

following factors: 

(1) This amendment is a minor, nonsubstantive, and industry-specific 

change to the compliance date 

provisions of the standard. The vast 

majority of industries and facilities 

covered by the standard will be 

unaffected by the amendment, and even 

at affected worksites, the substantive 

requirements of the standard remain 

unchanged. 

(2) The amendment simply adds an 

additional compliance option to the 

standard. Given the voluntary nature of 

the new compliance date provision, no 

affected employer can be prejudiced by 

the amendment. The terms of the 

Agreement and the new compliance 

date provision apply only to facilities 

that voluntarily file a Declaration of 

Party Status with OSHA. Any facility 

wishing to adhere to the standard as 

originally promulgated may do so. 

(3) No employees are adversely 

affected as a result of the Agreement or 

the amendment to the standard. Even at 

facilities that are parties to the 

Agreement, where OSHA will not be 

enforcing all interim respirator 

requirements, each employee who 

wishes to wear a respirator has a right 

to request and receive one under the 

terms of the Agreement, and any 

employee who makes such a request 

and is exposed above the PEL will be 

protected by the full respirator program 

provided under the standard. In 

addition, employees currently covered 

by existing respirator programs will 

continue to receive respiratory 

protection. Moreover, OSHA has 

concluded that employees at 

participating facilities—including those 

who request respirators in the interim—

will benefit from the expedited 

implementation of engineering controls. 

(4) As described more fully in Section 

I of this notice, this amendment is 

consistent with, and an outgrowth of, 

findings OSHA made based on the 

record that was developed, with 

extensive public input, during the 

chromium rulemaking. No new or 

additional findings are required to 

support the amendment. 

(5) This amendment arises out of the 

unique context of settlement 

negotiations conducted during litigation 

over the validity of the chromium 

standard. The new compliance date 

provision is the result of extensive 

negotiations between OSHA, SFIC, 

HRG, and the Steelworkers, and it 

resolves SFIC’s challenge to the rule. 

(6) Time-consuming notice and 

comment on this technical amendment 

to the standard is impracticable given 

that the benefits the parties expect to 

realize from the Agreement depend on 

immediate or virtually immediate 

implementation of the terms of the 

settlement. Any lengthy delay 

associated with additional rulemaking 

could undermine the essential (and time 

sensitive) premise of the Agreement, 

namely that participating facilities will 

implement engineering controls earlier 

than otherwise required in exchange for 

some interim relief from short-term 

respirator requirements. In addition, 

OSHA’s enforcement personnel need to 

know promptly which facilities are 

parties to the Agreement. Only facilities 

that become parties to the Agreement 

are eligible for any relief from the 

respiratory protection requirements of 

the standard. 

VII. Economic Analysis and Regulatory 

Flexibility Act Certification 

In promulgating the final hexavalent 

chromium standard in February 2006, 

OSHA found that the rule was 

economically and technologically 

feasible for all affected industries. See 

71 FR at 10256–302. The amendment 

described in this notice is a minor 

change to the compliance date provision 

of the standard and applies, on a 

voluntary basis, to a very small 

percentage of all facilities covered by 

the rule. OSHA has concluded that this 

amendment does not affect its economic 

or technological feasibility findings. 

Furthermore, in accordance with the 

Regulatory Flexibility Act, OSHA 

certifies that this amendment will not 


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63242 Federal Register / Vol. 71, No. 209 / Monday, October 30, 2006 / Rules and Regulations 

have a significant economic impact on 

a substantial number of small entities. 

In fact, this action will increase 

compliance flexibility for affected small 

businesses by offering them an 

additional compliance schedule option. 

The addition of such an option may 

decrease costs for some affected 

employers, and will increase costs for 

none. 

VIII. Environmental Impacts, Unfunded 

Mandates, Federalism, and 

Environmental Health and Safety Risks 

for Children 

In the final hexavalent chromium 

standard, OSHA also reviewed 

environmental impacts, unfunded 

mandates, and federalism issues, and 

considered the impact of the rule on the 

environmental health and safety of 

children. See 71 FR at 10326 (federalism 

and unfunded mandates); 71 FR at 

10326–27 (protecting children from 

environmental health and safety risks); 

71 FR at 10327 (environmental impact). 

For the reasons noted in section VII 

above, OSHA finds that the amendment 

does not alter the findings or 

determinations rendered in these 

analyses. 

IX. Paperwork Reduction Act 

On February 27, 2006, OSHA 

submitted the information collection 

request for the final hexavalent 

chromium standard to the Office of 

Management and Budget (OMB) for 

approval in accordance with the 

Paperwork Reduction Act of 1995. On 

March 28, 2006, OMB approved the 

collections of information contained in 

the final chromium standard and 

assigned them OMB Control Number 

1218–0252. The amendment described 

in this notice does not change the 

burden associated with the preparation, 

maintenance or disclosure of 

information as calculated and described 

by OSHA at the time the final standard 

was originally promulgated. See 71 FR 

at 10325–26. 

X. State Plans 

In accordance with Section 18(c)(2) of 

the Occupational Safety and Health Act 

(29 U.S.C. 667(c)(2)), when Federal 

OSHA promulgates a new standard or a 

more stringent amendment to an 

existing standard, the 26 States or U.S. 

territories with OSHA-approved 

occupational safety and health plans 

must revise their standards to reflect the 

new standard or amendment. 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 an amendment to a 

standard, which does not impose 

additional or more stringent 

requirements than an existing standard, 

States are encouraged but not required 

to take parallel action. In addition, State 

plans operate under authority of State 

law, and agreements reached by Federal 

OSHA are not binding on the States 

unless they become parties to the 

agreements or otherwise specifically 

agree to their terms. 

The State plans were required to 

adopt OSHA’s hexavalent chromium 

standard within six months of the 

Federal promulgation, i.e., by August 

28, 2006. The Federal settlement and 

the corresponding amendment to 

OSHA’s hexavalent chromium standard 

provide SFIC members and other 

surface- and metal-finishing job shops 

under Federal OSHA’s jurisdiction with 

an optional alternative to the 

compliance timetable described in 

Section (n) of the standard as originally 

promulgated. This action does not 

impose additional or more stringent 

requirements. Further, the 22 States 

with OSHA-approved State plans 

covering private sector employment 

were not parties to the negotiations that 

resulted in this amendment. 

Accordingly, State plans are not bound 

by the Agreement or obligated to adopt 

OSHA’s amendment to its standard. 

Nevertheless, OSHA encourages the 22 

State plans that cover both the private 

and public (State and local government) 

sectors (see list in Section V of this 

notice) to honor and implement the 

terms of the Agreement, including 

adopting a corresponding amendment to 

their State standard, or to take an 

alternative position, which could 

include entering into separate 

arrangements with surface- and metalfinishing job shops (or their 

representatives) in their jurisdiction. 

List of Subjects in 29 CFR Part 1910 

Cancer, Chemicals, Hazardous 

substances, Health, Occupational safety 

and health. 

XI. Authority and Signature 

This document was prepared under 

the direction of Edwin G. Foulke, Jr., 

Assistant Secretary of Labor for 

Occupational Safety and Health, U.S. 

Department of Labor, 200 Constitution 

Ave., NW., Washington, DC 20210. The 

Agency issues the final sections under 

the following authorities: 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. 5–

2002 (67 FR 65008); and 29 CFR Part 

1911. 

Signed at Washington, DC on October 25, 

2006. 

Edwin G. Foulke, Jr., 

Assistant Secretary of Labor. 

Amendment to the Final Standard 

■ Chapter XVII of Title 29 of the Code 

of Federal Regulations is to be amended 

as follows: 

PART 1910—[AMENDED] 

Subpart Z—[Amended] 

■ 1. The authority citation for Subpart Z 

of Part 1910 continues to read as 

follows: 

Authority: Sections 4, 6, 8 of the 

Occupational Safety and Health Act of 1970 

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

Order No. 12–71 (36 FR 8754), 8–76 (41 FR 

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

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

50017), or 5–2002 (67 FR 65008), as 

applicable; and 29 CFR part 1911. 

All of subpart Z issued under section 6(b) 

of the Occupational Safety and Health Act, 

except those substances that have exposure 

limits listed in Tables Z–1, Z–2, and Z–3 of 

29 CFR 1910.1000. The latter were issued 

under section 6(a) (29 U.S.C. 655(a)). 

Section 1910.1000, Tables Z–1, Z–2, and 

Z–3 also issued under 5 U.S.C. 553, Section 

1910.1000 Tables Z–1, Z–2, and Z–3 but not 

under 29 CFR part 1911 except for the 

arsenic (organic compounds), benzene, 

cotton dust, and chromium (VI) listings. 

Section 1910.1001 also issued under 

section 107 of the Contract Work Hours and 

Safety Standards Act (40 U.S.C. 3704) and 5 

U.S.C. 553. 

Section 1910.1002 also issued under 5 

U.S.C. 553 but not under 29 U.S.C. 655 or 29 

CFR part 1911. 

Sections 1910.1018, 1910.1029 and 

1910.1200 also issued under 29 U.S.C. 653. 

Section 1910.1030 also issued under Pub. 

L. 106–430, 114 Stat. 1901. 

■ 2. In § 1910.1026: 

■ a. Paragraph (n)(3) is revised. 

■ b. Paragraph (n)(4) is added. 

■ c. Appendix A to § 1910.1026 is 

added. 

The revisions and additions read as 

follows: 

§ 1910.1026 Chromium (VI). 

* * * * * 

(n) Dates * * * 

(3) Except as provided in (n)(4), for all 

employers, engineering controls 

required by paragraph (f) of this section 

shall be implemented no later than May 

31, 2010. 

(4) In facilities that become parties to 

the settlement agreement included in 

Appendix A, engineering controls 

required by paragraph (f) of this section 

shall be implemented no later than 

December 31, 2008. 


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Federal Register / Vol. 71, No. 209 / Monday, October 30, 2006 / Rules and Regulations 63243 

Appendix A to § 1910.1026 

In the United States Court of Appeals for the 

Third Circuit 

Surface Finishing Industry Council et al., 

Petitioners, v. U.S. Occupational Safety and 

Health Administration, Respondent. 

[Docket No. 06–2272 and consolidated cases] 

Public Citizen Health Research Group et al., 

Petitioners, v. Occupational Safety and 

Health Administration, United States 

Department of Labor, Respondent. 

[Docket No. 06–1818] 

Settlement Agreement 

The parties to this Settlement Agreement 

(‘‘Agreement’’) are the Occupational Safety 

and Health Administration, United States 

Department of Labor (‘‘OSHA’’), the Surface 

Finishing Industry Council or its successors 

(‘‘SFIC’’), surface-finishing and metalfinishing facilities which have opted into this 

Agreement pursuant to paragraph 7 

(‘‘Company’’ or ‘‘Companies’’), Public Citizen 

Health Research Group (‘‘HRG’’), and the 

United Steel, Paper and Forestry, Rubber, 

Manufacturing, Energy, Allied Industrial and 

Service Workers International Union 

(‘‘Steelworkers’’). 

Whereas, On February 28, 2006, OSHA 

promulgated a revised hexavalent chromium 

standard for general industry (‘‘the 

Standard’’) that includes a permissible 

exposure limit (‘‘PEL’’) for hexavalent 

chromium of 5 micrograms per cubic meter 

(‘‘μg/m3’’) measured as an 8-hour timeweighted average (‘‘TWA’’), and a deadline of 

May 31, 2010, for employers to come into 

compliance with this PEL through the 

implementation of engineering controls. The 

deadline for compliance with the remaining 

provisions of the Standard, including those 

requiring the use of respiratory protection to 

comply with the PEL, is November 27, 2006, 

for employers with twenty (20) or more 

employees, and May 30, 2007, for employers 

with nineteen (19) or fewer employees. 29 

CFR 1910.1026, 71 FR 10100 (Feb. 28, 2006); 

Whereas, SFIC filed a Petition for Review 

of the Standard in the Eleventh Circuit that 

was consolidated with other Petitions in the 

Third Circuit (Case No. 06–2272); 

Whereas, SFIC filed a Motion for Leave to 

Intervene in the matter of HRG’s Petition for 

Review in the Third Circuit (Case No. 06–

1818), which has been granted; 

Now, therefore, the parties to this 

Agreement do hereby agree to the following 

terms: 

1. Term of this Agreement. This Agreement 

will be effective upon execution and will 

expire on May 31, 2010. 

2. Accelerated implementation of 

engineering controls. The Companies agree 

that in accordance with 29 CFR 

1910.1026(f)(1) they will implement those 

feasible engineering controls necessary to 

reduce hexavalent chromium levels at their 

facilities by December 31, 2008, to or below 

the 5 μg/m3 PEL. In fulfilling this obligation, 

the Companies may select from the 

engineering and work practice controls listed 

in Exhibit A to this Agreement or adopt any 

other controls. 

3. Compliance plan and monitoring. In 

accordance with 29 CFR 1910.1026(d)(4)(ii), 

each Company will prepare, and update as 

required, a written plan setting forth the 

specific control steps being taken to reduce 

employee exposure to or below the PEL by 

December 31, 2008. In addition, Companies 

will make an initial exposure determination 

as required by 29 CFR 1910.1026(d)(1) using 

either the procedures for personal breathing 

zone air samples described in 29 CFR 

1910.1026(d)(2) or the performance-oriented 

option described at 29 CFR 1910.1026(d)(3). 

Thereafter, Companies will conduct periodic 

monitoring in accordance with the 

‘‘Scheduled Monitoring Option’’ provisions 

at 29 CFR 1910.1026(d)(2) and related 

provisions at 29 CFR 1910.1026(d)(4)–(6). 

The Companies agree that upon request 

compliance plans prepared in accordance 

with this paragraph, as well as all monitoring 

results obtained in compliance with this 

paragraph, will be provided to OSHA, 

affected employees and employee 

representatives. 

4. Respirator use. The respiratory 

protection provisions at 29 CFR 1910.1026(f) 

and (g) will apply to the Companies in 

accordance with the terms and dates set forth 

in the Standard, except that prior to 

December 31, 2008, for Companies that are in 

compliance with this Agreement, OSHA will 

enforce those respiratory protection 

provisions only with respect to employees 

who fall into one of the following six (6) 

categories: (1) Employees who are exposed to 

hexavalent chromium in excess of the PEL 

while performing tasks described in Exhibit 

B to this Agreement; (2) through November 

30, 2007, employees whose exposures to 

hexavalent chromium exceed a ‘‘respirator 

threshold’’ of 20 μg/m3 (measured as an 8- 

hour TWA); (3) beginning December 1, 2007, 

employees whose exposures to hexavalent 

chromium exceed a ‘‘respirator threshold’’ of 

12.5 μg/m3 (measured as an 8-hour TWA); (4) 

employees who are exposed to hexavalent 

chromium and request a respirator; (5) any 

other employees who are required by the 

Companies to wear a respirator; and (6) 

employees with exposures for which 

respirators were required under the previous 

hexavalent chromium standard (1910.1000) 

and any other employees covered by 

respirator programs in effect on May 30, 

2006. 

5. Employee information and training. 

Company employees will be trained pursuant 

to the provisions of 29 CFR 1910.1026(l)(2). 

In addition, the Companies agree to train 

employees in the provisions of this 

Agreement within sixty (60) days of the OptIn Date (defined in paragraph 7 of this 

Agreement). The training regarding this 

Agreement shall be provided in language the 

employees can understand. 

6. Enforcement. Within thirty (30) days of 

the execution of this Agreement, OSHA will 

publish a notice in the Federal Register 

amending 29 CFR 1910.1026 as follows: (1) 

A copy of this Agreement will be attached to 

the Standard as Appendix A; (2) a new 

paragraph, 1910.1026(n)(4), will be added to 

the Standard, and will read: ‘‘In facilities that 

become parties to the settlement agreement 

included in Appendix A, engineering 

controls required by paragraph (f) of this 

section shall be implemented no later than 

December 31, 2008’’; and (3) existing 

paragraph 1910.1026(n)(3) will be amended 

to read: ‘‘Except as provided in (n)(4), for all 

employers, engineering controls required by 

paragraph (f) of this section shall be 

implemented no later than May 31, 2010.’’

7. Opt-In Date for Companies to become 

parties to this Agreement. The Federal 

Register notice described in paragraph 6 of 

this Agreement will provide notice of the 

provisions of this Agreement, and of the 

revisions to the Standard described in 

paragraph 6, and will provide until 

November 30, 2006, for eligible facilities to 

become parties to this Agreement, and be 

subject to all of the duties, obligations, and 

rights herein. The last date for signing by 

facilities shall be referred to as the Opt-In 

Date. The opt in option will be available on 

a facility by facility basis and only to SFIC 

members and other surface-finishing and 

metal-finishing job shop facilities within the 

jurisdiction of Federal OSHA. (For purposes 

of this Agreement, a ‘‘job shop’’ is defined as 

a facility that sells plating or anodizing 

services to other companies.) Moreover, the 

terms of this Agreement apply only with 

respect to the performance of surfacefinishing and metal-finishing operations in 

those facilities. Although this Agreement 

applies only to facilities within the 

jurisdiction of Federal OSHA, OSHA will 

encourage States with OSHA-approved State 

occupational safety and health plans to either 

honor and implement the terms of this 

Agreement, including the amendments to the 

standard described in paragraph 6, or to take 

an alternative position, which may include 

entering into separate arrangements with 

surface- and metal-finishing job shop 

facilities (or their representatives) in their 

jurisdiction. 

8. Effect on third parties. Nothing in this 

Agreement constitutes an admission by SFIC 

or the Companies that a significant risk of 

material health impairment exists for 

hexavalent chromium justifying a reduction 

of the PEL to 5 μg/m3. Nor does anything in 

this Agreement constitute any other 

admission by SFIC or the Companies for 

purposes of this litigation or future litigation 

or standards-setting. This Agreement is not 

intended to give any rights to any third party 

except as expressly provided herein. 

9. OSHA inspections. OSHA may do 

monitoring inspections to assess compliance 

with and progress under this Agreement and 

the Standard, and nothing in this Agreement 

limits OSHA’s right to conduct inspections at 

Companies’’ facilities in accordance with the 

Occupational Safety and Health Act. 

10. Scope of Agreement. The terms of this 

Agreement apply only in the circumstances 

and to the Companies specified herein. In 

entering into this Agreement, OSHA is not 

making any representations regarding its 

enforcement policy with respect to either (1) 

The hexavalent chromium standard as 

applied to employers who are not parties to 

this Agreement or (2) any other occupational 

safety or health standards. 

11. Effect of invalidation of the Standard. 

If the Standard is invalidated, nothing in this 

Agreement shall prevent the application to 

SFIC or the Companies of any PEL that is 

promulgated by OSHA on remand. This 


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63244 Federal Register / Vol. 71, No. 209 / Monday, October 30, 2006 / Rules and Regulations 

Agreement would not foreclose SFIC or the 

Companies from participating in rulemaking 

proceedings or otherwise challenging any 

new PEL promulgated by OSHA on remand. 

12. Withdrawal of Petitions and 

Interventions. SFIC agrees to move to 

withdraw its Petition for Review in the 

above-captioned case, Case No. 06–2272, 

within five (5) working days of the execution 

of this Agreement. SFIC further will move to 

dismiss its motion to intervene in Case No. 

06–1818 and all other challenges 

simultaneously with its motion to withdraw 

in Case No. 06–2272 as Petitioner. 

13. Attorneys’ fees. Each party agrees to 

bear its own attorneys’ fees, costs, and other 

expenses that have been incurred in 

connection with SFIC’s Petition for Review, 

SFIC’s intervention in HRG’s Petition for 

Review, and the negotiation of this 

Agreement up to and including filing of the 

motions to dismiss. 

14. Support of Agreement. In the event that 

all or any portion of this Agreement is 

challenged in any forum, the signatories 

below agree to move to intervene in support 

of this Agreement. 

Agreed to this 25th day of October, 2006. 

Baruch A. Fellner, 

Counsel for SFIC, Gibson, Dunn & Crutcher 

LLP, 1050 Connecticut Avenue, NW., 

Washington, DC 20036, (202) 955–8500. 

Lauren S. Goodman, 

Counsel for OSHA, United States Department 

of Labor, Office of the Solicitor, 200 

Constitution Avenue, NW., Washington, 

DC 20210, (202) 693–5445. 

Scott L. Nelson, 

Counsel for HRG and the Steelworkers, 

Public Citizen Litigation Group, 1600 20th 

Street, NW., Washington, DC 20009, (202) 

588–7724. 

Exhibit A 

Available Engineering and Work Practice 

Controls 

The Companies agree that work towards 

the implementation of these available 

engineering and work practice controls 

should not be delayed to accommodate their 

completion by December 31, 2008. The 

Companies are encouraged to implement 

from among these controls as soon as 

practicable. 

1. Parts Transfer Practices 

• Minimize droplet formation. Instruments 

akin to garden hoses are used to rinse off 

parts coming out of chemical baths. This 

causes many small droplets to form, which 

are easily atomized or vaporized and 

contribute to airborne chromium 

concentration. The industry is currently 

developing ways to minimize the formation 

of small droplets, dripping, or splashing, 

possibly by reducing hose pressure. 

• Minimize air current flow. Strong air 

currents across these droplets may contribute 

to their vaporization, and therefore 

minimizing air current flow across the 

droplets may reduce airborne hexavalent 

chromium levels. 

• Slow part speeds as feasible. The speed 

at which parts are pulled out of a chemical 

tank causes splashing, which adds to 

chromium vaporization. By slowing the 

speed at which parts are taken out of tanks, 

splashing and vaporization can be 

minimized. The feasibility of this control 

must be evaluated in light of the negative 

effect on productivity. 

2. Plating Bath Surface Tension Management 

and Fume Suppression 

• Lower surface tension. Lower surface 

tension in chemical baths leads to fewer 

drops forming. Chromium baths currently 

have a surface tension of 35 dynes per 

centimeter. As a comparison, water has a 

surface tension of 72 dynes per centimeter. 

Lowering surface tension further would lead 

to reduced airborne hexavalent chromium 

levels. 

• Fume suppressants. Fume suppressants 

create a physical barrier between the 

chemical bath and the air, which prevents 

vaporization. Some suppressants, however, 

may cause pitting or other metal damage, and 

therefore their use is not always possible. 

3. Facility Air Disturbance Monitoring 

• Improvement of local exhaust ventilation 

(LEV) capture efficiency. The majority of 

electroplating facilities are not airconditioned. As a result, doors are kept open 

to let in cool air, but this causes air currents 

that prevent the LEVs from performing 

efficiently. The use of fans has a similar 

effect. Industry is researching how to 

minimize these air currents so that LEVs can 

perform as designed. Such methods may 

include the use of partitions to degrade air 

current flow, or checklists that may include 

location and positioning of cross drafts, fans, 

doors, windows, partitions and process 

equipment that Companies can use to audit 

their workplaces in order to improve their 

capture efficiency. 

4. Technology Enhancements In Lieu of LEV 

Retrofitting 

• Eductors. Many chemical baths are 

currently mixed via air agitation: Air pipes 

bubble air into the tank to keep the chemicals 

mixed and to prevent them from settling. An 

adverse effect of this agitation is that air 

bubbles escape at the surface of the tank, 

resulting in some chromium vaporization. By 

using eductors (horn-shaped nozzles) in 

tanks, the chemicals flow from a pump to 

create solution movement below the surface 

without the use of air bubbles, and the 

amount of chromium vaporization can be 

significantly reduced. 

5. Different Means of Chromium Additions 

• Liquid Chromium. Dry hexavalent 

chromium flakes are occasionally added to 

tanks, which can generate airborne 

particulates of hexavalent chromium. Adding 

liquid chromium at or near the surface of a 

tank would lower airborne chromium levels 

and reduce splashing from tanks. 

• Hydration of flakes before addition. To 

add liquid chromium to tanks, the dry flakes 

must be hydrated. Whether this process is 

performed by chemical suppliers that 

provide plating solutions to metal finishing 

companies or by metal finishing companies 

that have the necessary experience and 

equipment, appropriate work practices such 

as mixing techniques must be implemented 

to minimize the potential airborne levels of 

hexavalent chromium. 

6. Dust Control 

• Better housekeeping. Chrome dust that 

comes off products that are polished or 

grinded is actually elemental chromium, not 

hexavalent chromium, so polishing and 

grinding contribute little to airborne 

hexavalent chromium levels. However, 

Companies should use good housekeeping 

practices, including wet mopping, and wet 

wipedowns, to reduce the amount of dust 

present. 

7. Improvement and Maintenance of Existing 

LEVs 

• Improvement and maintenance of 

existing LEVs. Companies may repair and 

maintain their current LEVs. Because the 

final rule indicates that at least 75 percent of 

the industry is in compliance with the PEL 

with LEVs working at 40% of capacity, 

increasing LEV function can materially affect 

compliance. 

8. Other Controls 

• Other methods. Companies are 

constantly determining best work practices 

and technological controls through laboratory 

research and practical experience. 

Companies will implement other engineering 

and work practice controls as necessary and 

as practicable to reduce potential hexavalent 

chromium workplace exposures. 

Exhibit B 

Workplace Tasks Requiring Respirators 

Where PEL Is Exceeded 

Some well-known and relatively few, 

discrete tasks related to metal finishing 

activities result in potentially higher 

workplace exposures of hexavalent 

chromium. Where the applicable PEL for 

hexavalent chromium is exceeded, 

respirators shall be worn to conduct the 

following activities: 

(1) Hexavalent chromium chemical 

additions. In order to have the metal 

deposited onto the part, hexavalent 

chromium must be added to the plating tank 

periodically. This is a discrete activity that 

involves the addition of either a dry flake of 

hexavalent chromium chemicals or a liquid 

solution of hexavalent chromium into the 

plating tank. Respirators shall be worn 

during the period it takes to add the 

hexavalent chromium chemical to the tank. 

(2) Hexavalent chromium preparation and 

mixing. Different mixtures of hexavalent 

chromium chemicals are needed for different 

types of chromium plating processes. For 

example, hard chromium plating can require 

higher concentrations of hexavalent 

chromium because a thicker coating and 

longer plating process may be needed for the 

critical product quality and performance. 

Similarly, different types of decorative 

chromium plating processes may need 

different levels of hexavalent chromium and 

other chemicals such as catalysts. These 

mixtures can be in the form of dry flakes or 

liquid solutions. All of these different 

hexavalent chromium chemical mixtures are 

generally prepared by metal finishing 

suppliers and distributors. Some metal 


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Federal Register / Vol. 71, No. 209 / Monday, October 30, 2006 / Rules and Regulations 63245 

finishing companies may also prepare 

hexavalent chromium solutions from the dry 

flakes prior to addition to the plating tanks. 

Respirators shall be worn during the period 

it takes to prepare these hexavalent 

chromium mixtures and solutions whether 

the activity is conducted at a chemical 

supplier or a metal finishing company. 

(3) Hexavalent chromium tank cleaning. 

Occasionally, the tanks used for chromium 

plating may need to be emptied and cleaned. 

This process would involve the draining of 

the solution and then the removal of any 

residues in the tank. Workers cleaning out 

these tanks may have to enter the tank or 

reach into it to remove the residues. 

Respirators (as well as other appropriate PPE) 

shall be worn during the period it takes to 

clean the tanks and prepare them for use 

again. 

(4) Hexavalent chromium painting 

operations. Some metal finishing operations 

apply paints with higher concentrations of 

hexavalent chromium to a line of parts, 

particularly for aerospace applications when 

a high degree of corrosion protection is 

needed for critical product performance. 

Paints are generally applied in such 

operations with some type of spray 

mechanism or similar dispersion practice. In 

some instances, it may be difficult to keep 

workplace exposures below the PEL for such 

paint spraying activities. Respirators shall be 

worn during such spray painting operations. 

[FR Doc. 06–8971 Filed 10–27–06; 8:45 am] 

BILLING CODE 4510–26–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 110 

[CGD08–05–016] 

RIN 1625–AA01 

Anchorage Regulations; Mississippi 

River Below Baton Rouge, LA, 

Including South and Southwest Passes 

AGENCY: Coast Guard, DHS. 

ACTION: Final rule. 

SUMMARY: The Coast Guard has 

amended anchorage regulations for the 

Mississippi River below Baton Rouge, 

LA, including South and Southwest 

Passes, in order to improve safety at the 

Lower Kenner Bend Anchorage. This 

rule is needed to protect aircraft 

passengers and crew, mariners and the 

public from the potential safety hazards 

associated with the ascent and descent 

of aircraft over vessels anchored in the 

vicinity of the Louis Armstrong New 

Orleans International Airport, New 

Orleans, LA. 

DATES: This rule is effective November 

29, 2006. 

ADDRESSES: Documents indicated in this 

preamble as being available in the 

docket, are part of docket [CGD08–05–

016] and are available for inspection or 

copying at U.S. Coast Guard D8, 500 

Poydras Street, New Orleans, Louisiana 

70130–3396 between 8 a.m. and 4 p.m., 

Monday through Friday, except Federal 

holidays. 

FOR FURTHER INFORMATION CONTACT: 

Douglas Blakemore, Waterways 

Management Branch, Eighth Coast 

Guard District, 500 Poydras Street, New 

Orleans, LA 70130–3396. Telephone 

(504) 671–2109; facsimile (504) 671–

2137. Please cite CGD08–05–016. 

SUPPLEMENTARY INFORMATION: 

Regulatory Information 

On April 27, 2005, we published a 

notice of proposed rulemaking (NPRM) 

entitled ‘‘Anchorage Regulations; 

Mississippi River Below Baton Rouge, 

LA, Including South and Southwest 

Passes’’ in the Federal Register (70 FR 

21698). We received 4 letters 

commenting on this rule. A public 

meeting was held at the Hale Boggs 

Federal Building, 500 Poydras Street, 

New Orleans, LA on January 4, 2006 (70 

FR 76320, December 23, 2005). The 

three comments from this public 

meeting are included in this 

rulemaking. 

Background and Purpose 

Runway 1–19 at the Louis Armstrong 

New Orleans International Airport is 

positioned in a north-south line running 

parallel to the Airport Access Road. 

Aircraft approaching the runway from 

the south or departing the runway from 

the north pass over the Lower Kenner 

Bend Anchorage. Officials from Louis 

Armstrong New Orleans International 

Airport have stated that due to the close 

proximity of Runway 1–19 to Kenner 

Bend, aircraft occasionally descend and 

ascend directly over vessels anchored in 

the Lower Kenner Bend Anchorage, 

creating a potentially dangerous 

situation that is of particular concern 

during periods of reduced visibility. 

Aircraft approaching the runway from 

the south follow a descending glide 

slope path with a minimum height of 

311 feet above mean sea level over the 

Kenner Bend Anchorage. Certain vessels 

with cargo handling equipment such as 

cranes and booms are capable of 

extending this equipment to a height 

upwards of 300 feet above the waterline. 

This amendment to the anchorage 

regulations for the Mississippi River 

below Baton Rouge, LA, including 

South and Southwest Passes prohibits 

vessels from using ship’s hold cargo 

cranes. Vessels in this anchorage must 

keep their cargo gear in their cradles as 

rigged for sea transits. This restriction 

does not apply to the use of deckmounted store cranes, deck booms, or 

stiff legs, nor is it intended to restrict 

ships or ocean-going barges from 

moving manifold hoses. 

Discussion of Comments and Changes 

Four commenters stated that the 

Lower Kenner Bend Anchorage was 

important to the maritime industry and 

were concerned that the Coast Guard 

would completely remove Lower 

Kenner Bend as an anchorage. We agree 

with this assessment and have no 

intentions to remove this anchorage. 

Three commenters objected that this 

rule does not address vessel size. Small 

vessels would not be able to use their 

cargo cranes even though the vessels 

maximum air draft with a completely 

extended cargo crane would be 

significantly lower than the minimum 

height of 311 feet above mean sea level 

needed for an aircrafts descending glide 

slope path over Kenner Bend 

Anchorage. We recognize this 

possibility; however, we feel that to 

maintain the consistent safety of 

descending airplanes over runway 1–19, 

we need to restrict the use of cargo 

cranes for all vessels. 

Three commenters objected that this 

rule does not allow a vessel to take on 

ships stores, spare parts, supplies and 

fuel. We modified the rule to 

specifically address this issue. Vessels 

at anchor in the Lower Kenner Bend 

Anchorage are allowed to use deckmounted cranes, deck booms and stiff 

legs to take on stores, spare parts and to 

move manifold hoses. However, cargo 

hold booms may not be used. In 

implementing changes from the 

proposed rule based on comments, we 

added a new paragraph to 33 CFR 

110.195 instead of revising paragraph 

(c)(6). 

Regulatory Evaluation 

This rule is not a significant 

regulatory action under section 3(f) of 

Executive Order 12866, Regulatory 

Planning and Review, and does not 

require an assessment of potential costs 

and benefits under section 6(a)(3) of that 

Order. The Office of Management and 

Budget has not reviewed it under that 

Order. It is not significant under the 

regulatory policies and procedures of 

the Department of Homeland Security 

(DHS). We expect the economic impact 

of this rule to be so minimal that a full 

Regulatory Evaluation under the 

regulatory policies and procedures of 

DHS is unnecessary. 


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