3526 Federal Register / Vol. 74, No. 12 / Wednesday, January 21, 2009 / Proposed Rules 

1Except for the grimace exercise, which currently 

lasts 15 seconds and would remain at 15 seconds 

in both of the proposed protocols. However, neither 

the current nor proposed protocols include the fit 

factor obtained from this exercise in determining 

the overall fit factor for a respirator tested using a 

quantitative fit test. 

paragraph and § 1.861–12T(c)(2)) in the 

stock of the redeeming corporation). 

These adjustments are to be made 

annually and are noncumulative. 

(vii) Examples. Certain of the rules of 

this paragraph (c)(2) may be illustrated 

by the following examples: 

Examples 1 and 2. [Reserved]. For 

further guidance, see § 1.861– 

12T(c)(2)(vii), Examples 1 and 2. 

Example 3. X, an unaffiliated domestic 

corporation that was organized on January 1, 

2000, owns all of the stock of Y, a foreign 

corporation with a functional currency other 

than the U.S. dollar since January 1, 2000. 

The Y stock held by X includes Class A and 

Class B common stock. X’s adjusted basis in 

the Class A and Class B common stock is 

$25,000 and $50,000, respectively. Y has 

earnings and profits for the 2008 taxable year 

of $40,000. During the 2008 taxable year, Y 

redeems all of the Class A common stock 

held by X for $40,000. Because X still owns 

all of the outstanding stock of Y, the 

redemption is treated as a distribution with 

respect to the stock of Y under section 301. 

Under § 1.302–5(a)(3), X’s $ 25,000 adjusted 

basis in the redeemed shares of Class A 

common stock is treated as a loss recognized 

on the date of the redemption, none of which 

is taken into account in 2008. Under 

paragraph (c)(2)(vi) of this section, solely for 

purposes of apportioning expenses on the 

basis of the tax book value of assets, X’s 

adjusted basis in its remaining Class B 

common stock of Y is considered to be 

$75,000 ($50,000 adjusted basis in the Class 

B common stock plus $ 25,000 unrecovered 

basis in the redeemed Class A common 

stock). 

(c)(2)(viii) Effective/applicability date. 

Paragraph (c)(2)(vi) and Example 3 

apply to transactions that occur after the 

date these regulations are published as 

final regulations in the Federal Register. 

(c)(3) through (j) [Reserved]. For 

further guidance, see § 1.861–12T(c)(3) 

through (j). 

§ 1.1002–1 [Redesignated as § 1.1001–6] 

Par. 18. Section 1.1002–1 is 

redesignated as 1.1001–6 and amended 

by revising paragraph (c) and adding a 

new paragraph (e) to read as follows: 

§ 1.1001–6 Sales or exchanges. 

* * * * * 

(c) Certain exceptions to general rule. 

Exceptions to the general rule are made, 

for example, by sections 351(a), 354, 

361(a), 721, 1031, 1035, and 1036. These 

sections describe certain specific 

exchanges of property in which at the 

time of the exchange particular 

differences exist between the property 

parted with and the property acquired, 

but such differences are more formal 

than substantial. As to these, the 

Internal Revenue Code provides that 

such differences shall not be deemed 

controlling, and that gain or loss shall 

not be recognized at the time of the 

exchange. The underlying assumption 

of these exceptions is that the new 

property is substantially a continuation 

of the old investment still unliquidated; 

and, in the case of reorganizations, that 

the new enterprise, the new corporate 

structure and the new property are 

substantially continuations of the old 

still unliquidated. Solely for purposes of 

determining whether the exceptions to 

the general rule under sections 354 and 

361 apply to an exchange, to the extent 

the terms of the exchange specify that a 

particular property is received in 

exchange for a particular property, such 

terms shall control provided such terms 

are economically reasonable. 

* * * * * 

(e) Effective/applicability date. This 

section applies to exchanges that occur 

after the date these regulations are 

published as final regulations in the 

Federal Register. For exchanges that 

occur on or before the date these 

regulations are published as final 

regulations in the Federal Register, see 

this section as contained in 26 CFR part 

1 revised April 1, for the year before 

these regulations are published as final 

regulations in the Federal Register. 

Par. 19. Section 1.1016–2 is amended 

by adding paragraphs (e) and (f) to read 

as follows: 

§ 1.1016–2 Items properly chargeable to 

capital account. 

* * * * * 

(e) Solely for purposes of determining 

basis in stock, in the case of a 

shareholder capital contribution to 

which section 118 applies, the 

principles of § 1.358–2(g)(3) (allocation 

of basis in a section 351 transaction in 

which stock is deemed received) shall 

apply. 

(f) This section applies to transactions 

that occur after the date these 

regulations are published as final 

regulations in the Federal Register. For 

exchanges that occur on or before the 

date these regulations are published as 

final regulations in the Federal Register, 

see this section as contained in 26 CFR 

part 1 revised April 1, for the year 

before these regulations are published as 

final regulations in the Federal Register. 

Par. 20. Section 1.1374–10, the first 

sentence of paragraph (a) is revised to 

read as follows: 

§ 1.1374–10 Effective date and additional 

rules. 

(a) In general. For transactions to 

which § 1.302–5 applies [Reserved]. 

Sections 1.1374–1 through 1.1374–9, 

other than § 1.1374–3(b) and (c) 

Examples 2 through 4, apply for taxable 

years ending on or after December 27, 

1994, but only in cases where the S 

corporation’s return for the taxable year 

is filed pursuant to an S election or a 

section 1374(d)(8) transaction occurring 

on or after December 27, 1994. * * * 

* * * * * 

Linda M. Kroening, 

(Acting) Deputy Commissioner for Services 

and Enforcement. 

[FR Doc. E9–1100 Filed 1–16–09; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1910 

[Docket No. OSHA–2007–0007] 

RIN 1218–AC39 

Additional Quantitative Fit-Testing 

Protocols for the Respiratory 

Protection Standard 

AGENCY: Occupational Safety and Health 

Administration (OSHA); Labor. 

ACTION: Notice of proposed rulemaking; 

request for comments. 

SUMMARY: OSHA is proposing to add 

two PortaCount® quantitative fit-testing 

protocols to its Respiratory Protection 

Standard (29 CFR 1910.134); the 

proposed protocols would apply to 

employers in general industry, shipyard 

employment, and the construction 

industry. The first of the two proposed 

protocols consists of the eight fit-testing 

exercises described in Part I.A.14 of 

Appendix A of the Respiratory 

Protection Standard, except each 

exercise would last 30 seconds instead 

of the currently required 60 seconds.1

The second proposed protocol would 

eliminate two of the eight fit-testing 

exercises, and each of the remaining six 

exercises would last 40 seconds; in 

addition, this proposed protocol would 

increase the current minimum pass-fail 

fit-testing criterion from a fit factor of 

100 to 200 for half masks, and from 500 

to 1,000 for full facepieces. 

DATES: Submit comments to this 

proposal, including comments to the 

information collection (paperwork) 

determination described under the 

section this preamble titled 

SUPPLEMENTARY INFORMATION, as well as 

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Federal Register / Vol. 74, No. 12 / Wednesday, January 21, 2009 / Proposed Rules 3527 

2This letter and the accompanying article 

describe three fit-testing protocols, but Mr. Weed of 

TSI Inc., in a subsequent telephone call to OSHA 

staff, requested that the Agency include only two 

of them in this proposed rulemaking. 

other information, by March 23, 2009. 

All submissions must bear a postmark 

or provide other evidence of the 

submission date. (See the following 

section titled ADDRESSES for methods 

used in submitting comments to the 

docket.) 

ADDRESSES: Submit comments, 

identified by docket number OSHA– 

2007–0007 or regulatory information 

number (RIN) 1218–AC39, by any of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: (202) 693–1648 for comments 

that are 10 pages or fewer in length 

(including attachments). Instead of 

transmitting facsimile copies of 

attachments that supplement these 

comments (e.g., studies, journal 

articles), commenters may 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 

Avenue, NW., Washington, DC 20210. 

These attachments must clearly identify 

the sender’s name, date, subject, and 

docket number or RIN number (i.e., 

OSHA–2007–0007 or 1218–AC39, 

respectively) so that the Agency can 

attach them to the appropriate 

comments. 

• Mail, Hand Delivery, or Courier (for 

Paper, Disk, or CD–ROM Submissions): 

OSHA Docket Office, Docket No. 

OSHA–2007–0007 or RIN No. 1218– 

AC39, Technical Data Center, Room N– 

2625, U.S. Department of Labor, 200 

Constitution Avenue, NW., Washington, 

DC 20210; telephone: (202) 693–2350. 

(OSHA’s TTY number is (877) 889– 

5627.) 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 docket 

number or RIN number (i.e., OSHA– 

2007–0007 or 1218–AC39, respectively) 

for this rulemaking. All comments 

received will be posted without change 

to http://www.regulations.gov, including 

any personal information provided. For 

detailed instruction on submitting 

comments and additional information 

on the rulemaking process, see the 

‘‘Public Participation’’ heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

• Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov and/or to the 

OSHA Docket Office in Room N–2625, 

U.S. Department of Labor, 200 

Constitution Avenue, NW., Washington, 

DC. The http://www.regulations.gov 

index lists 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: 

• General information and press 

inquiries: Contact Ms. Jennifer Ashley, 

Director, Office of Communications, 

OSHA, U.S. Department of Labor, Room 

N–3637, 200 Constitution Avenue, NW., 

Washington, DC 20210; telephone: (202) 

693–1999; facsimile: (202) 693–1634. 

• Technical inquiries: Contact Mr. 

John Steelnack, Directorate of Standards 

and Guidance, Room N–3718, OSHA, 

U.S. Department of Labor, 200 

Constitution Avenue, NW., Washington, 

DC 20210; telephone: (202) 693–2289; 

facsimile: (202) 693–1678. 

• Copies of this Federal Register 

notice: Electronic copies of this Federal 

Register notice, news releases, and other 

similar documents are available on 

OSHA’s Web page at http:// 

www.osha.gov (select ‘‘Federal 

Register,’’ ‘‘Date of Publication,’’ and 

then ‘‘2008’’). 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. Summary and Explanation of the Proposal 

A. Introduction 

B. Summary of the Peer-Reviewed Article 

C. Conclusions 

D. Issues for Public Comment 

III. Procedural Determinations 

A. Legal Authority 

B. Preliminary Economic Analysis and 

Initial Regulatory Flexibility Analysis 

C. Paperwork Reduction Act 

D. Federalism 

E. State-Plan States 

F. Unfunded Mandates Reform Act 

G. Applicability of Existing Consensus 

Standards 

H. Review of the Proposed Standard by the 

Advisory Committee for Construction 

Safety and Health 

I. Public Participation 

List of Subjects 

Authority and Signature 

IV. Proposed Amendment to the Standard 

I. Background 

Appendix A of OSHA’s Respiratory 

Protection Standard at 29 CFR 1910.134 

currently includes three quantitative fittesting protocols using the following 

challenge agents: A non-hazardous 

generated aerosol such as corn oil, 

polyethylene glycol 400, di-2-ethyl 

hexyl sebacate, or sodium chloride; 

ambient aerosol; and controlled negative 

pressure. Appendix A of the Respiratory 

Protection Standard also specifies the 

procedure for adding new fit-testing 

protocols to this standard. The criteria 

for determining whether OSHA must 

publish a fit-testing protocol for noticeand-comment rulemaking under Section 

6(b)(7) of the Occupational Safety and 

Health Act of 1970 (the ‘‘Act’’) (29 

U.S.C. 655) include: (1) A test report 

prepared by an independent 

government research laboratory (e.g., 

Lawrence Livermore National 

Laboratory, Los Alamos National 

Laboratory, the National Institute for 

Standards and Technology) stating that 

the laboratory tested the protocol and 

found it to be accurate and reliable; or 

(2) an article published in a peerreviewed industrial-hygiene journal 

describing the protocol and explaining 

how the test data support the protocol’s 

accuracy and reliability. Using this 

procedure, OSHA has added one fittesting protocol (i.e., the controlled 

negative pressure REDON quantitative 

fit-testing protocol) to Appendix A of its 

Respiratory Protection Standard (see 69 

FR 46986). 

II. Summary and Explanation of the 

Proposal 

A. Introduction 

In the letter submitting two new 

quantitative fit-testing protocols for 

review under the provisions of 

Appendix A of OSHA’s Respiratory 

Protection Standard (Ex. OSHA–2007– 

0007–0002), Mr. Jeff Weed of TSI Inc. 

included a copy of a peer-reviewed 

article from an industrial-hygiene 

journal describing the accuracy and 

reliability of these proposed protocols 

(Ex. OSHA–2007–0007–0003).2 The 

submission letter also included 

instructions that described in detail the 

equipment and procedures required to 

administer the proposed protocols. 

According to this description, the 

proposed protocols are variations of the 

existing ambient-aerosol condensationnuclei-counter quantitative fit-testing 

protocol developed by TSI Inc., in the 

1980’s, commonly referred to as the 

standard PortaCount® quantitative fittesting protocol (hereafter, ‘‘the standard 

PortaCount® QNFT protocol’’). OSHA 

included the standard PortaCount®

QNFT protocol in Appendix A of its 

final Respiratory Protection Standard. 

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3528 Federal Register / Vol. 74, No. 12 / Wednesday, January 21, 2009 / Proposed Rules 

3After excluding from the analysis fit factors 

within one standard deviation of the reference fitfactor pass-fail criterion, these figures are 57 of 135 fit factors below 100, and 91 of 135 fit factors less than 500. 

(For consistency, OSHA will refer to the 

two proposed protocols as ‘‘revised 

PortaCount® quantitative fit-testing 

protocols 1 and 2’’ (i.e., ‘‘revised 

PortaCount® QNFT protocols 1 and 2’’). 

The proposed protocols use the same 

fit-testing requirements and 

instrumentation specified for the 

standard PortaCount® QNFT protocol in 

paragraphs (a) and (b) of Part I.C.3 of 

Appendix A of the Respiratory 

Protection Standard, with the following 

exceptions: 

• Revised PortaCount® QNFT 

protocol 1 reduces the duration of the 

eight fit-testing exercises from 60 

seconds to 30 seconds; and 

• Revised PortaCount® QNFT 

protocol 2 eliminates two of the eight 

fit-testing exercises, with each of the 

remaining six exercises having a 

duration of 40 seconds; in addition, this 

proposed protocol increases the current 

minimum pass-fail fit-testing criterion 

from a fit factor of 100 to 200 for half 

masks, and from 500 to 1,000 for full 

facepieces. 

B. Summary of the Peer-Reviewed 

Article 

Peer-reviewed industrial-hygiene 

journal article. The peer-reviewed 

article submitted by Mr. Jeff Weed of 

TSI Inc., entitled ‘‘Evaluation of Three 

New Fit Test Protocols for Use with the 

TSI PortaCount,’’ appeared in the Fall/ 

Winter 2005 issue of the Journal of the 

International Society for Respiratory 

Protection (Ex. OSHA–2007–0007– 

0003). This article describes a study that 

determined whether performing the 

proposed protocols yields fit-testing 

results similar to results obtained with 

the standard PortaCount® QNFT 

protocol (i.e., the standard PortaCount®

QNFT protocol was the criterion 

measure or ‘‘gold standard’’). 

Test subjects and respirator selection. 

The study involved 30 test subjects who 

performed 140 fit tests while wearing 

elastomeric half-mask and full-facepiece 

respirators equipped with P100 filters. 

The test subjects selected respirators 

from among 24 models, with some test 

subjects using more than one model 

during fit testing. Respirator fit varied 

across the test subjects, with 60 of 140 

fit factors below 100, and 91 of 140 fit 

factors less than 500, as determined by 

the standard PortaCount® QNFT 

protocol.3 Poor respirator fit resulted 

from improper respirator selection by 

the test subjects themselves, or from 

assigning respirators to test subjects that 

were either too small or too large. Test 

subjects could adjust the respirator for 

comfort, but they did not perform user 

seal checks. 

Procedures. In conducting the study, 

the authors followed the 

recommendations for evaluating new fittesting protocols specified by Annex A2 

(‘‘Criteria for Evaluating Fit Tests 

Methods’’) of ANSI Z88.10–2001 

(‘‘Respirator Fit Testing Methods’’). 

Specially designed testing software 

allowed for calculation of fit factors 

every 10 seconds during the in-mask 

sampling periods without disturbing the 

facepiece (i.e., at 10-, 20-, and 30-second 

intervals for comparison with the 40- 

second in-mask sampling intervals 

determined using the standard 

PortaCount® QNFT protocol). The 

authors used TSI-supplied sampling 

adaptors, or respirators with fixed 

probes provided by the respirator 

manufacturer, to collect samples inside 

the respirators. The sampling point 

inside the respirator was between the 

nose and the mouth. During sampling, 

the test subjects performed the exercises 

listed in Part I.A.14 of Appendix A of 

OSHA’s Respiratory Protection 

Standard, which include: initial normal 

breathing, deep breathing, turning the 

head side to side, moving the head up 

and down, reading a passage, grimace, 

bending over, and final normal 

breathing. 

The TSI PortaCount® Plus fit-testing 

instrument performed particle counts on 

samples collected during the study. The 

table below provides the exercise and 

sampling parameters for each of the 

protocols used in the study. 

Protocol Number of 

exercises 

Duration of 

each exercise 

(secs.) 

In-mask sampling duration 

for each 

exercise 

(secs.) 1

Standard PortaCount® QNFT Protocol ....................................................................................... 8 60 40 

Revised PortaCount® QNFT Protocol 1 ...................................................................................... 8 30 10 

Revised PortaCount® QNFT Protocol 2 ...................................................................................... 2 6 40 20 

1 Does not include 20 seconds for each exercise to collect ambient-air samples and to purge the in-mask and ambient-air sampling tubes. 2This protocol eliminated the initial normal-breathing exercise and the deep-breathing exercise. 

Results. To pass a fit test using revised 

PortaCount® QNFT protocol 1, test 

subjects had to attain a fit factor of 100 

for half masks and 500 for full-facepiece 

respirators; the pass-fail criteria for fullfacepiece respirators using revised 

PortaCount® QNFT protocol 2 were 200 

for half masks and 1,000 for fullfacepiece respirators. Based on these 

criteria, the authors determined the 

following statistics for the two proposed 

protocols: test sensitivity; predictive 

value of a pass; test specificity; 

predictive value of a fail; and the kappa 

statistic. In calculating these statistics, 

the authors adopted the variables 

defined by ANSI Z88.10–2001, in 

which: A = false positives (passed the fit 

test with a fit factor < 100); B = true 

positives (passed the fit test with a fit 

factor ≥ 100); C = true negatives (failed 

the fit test with a fit factor < 100); D = 

false negatives (failed the fit test with a 

fit factor ≥ 100); Po = observed 

proportion of the two fit tests that are 

concordant; and Pe = expected 

proportion of the two fit tests expected 

to be concordant when the two tests are 

statistically independent. Using these 

variables, ANSI Z88.10–2001 specifies 

the formula and recommended value 

(‘‘RV’’) for each statistic as follows: Test 

sensitivity = C/(A + C), RV ≥ 0.95; 

predictive value of a pass = B/(A + B), 

RV ≥ 0.95; test specificity = B/(B + D), 

RV > 0.50; predictive value of a fail = 

C/(C + D), RV > 0.50; and the kappa 

statistic = (Po¥Pe)/(1¥Pe). 

Using the standard PortaCount®

QNFT protocol as the criterion measure, 

the variables for the two proposed 

protocols had values for half masks and 

full-facepiece respirators listed in the 

following two tables. 

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Federal Register / Vol. 74, No. 12 / Wednesday, January 21, 2009 / Proposed Rules 3529 

Variables 

Values for half-mask respirators 

ANSI 

requirement 

Revised 

PortaCount®

QNFT Protocol 1 

Revised 

PortaCount®

QNFT Protocol 2 

Sensitivity ............................................................................................................. ≥0.95 1 0.91 1.00 

Predictive Value of a Pass .................................................................................. ≥0.95 2 0.94 1.00 

Specificity ............................................................................................................. >0.50 0.99 0.81 

Predictive Value of a Fail .................................................................................... >0.50 0.98 0.79 

Kappa Statistic ..................................................................................................... >0.70 0.91 0.78 

1 = Fail. 

2 = Borderline fail. 

Variables 

Values for full-facepiece respirators 

ANSI 

requirement 

Revised 

PortaCount®

QNFT Protocol 1 

Revised 

PortaCount®

QNFT Protocol 2 

Sensitivity ............................................................................................................. ≥0.95 0.97 1.00 

Predictive Value of a Pass .................................................................................. ≥0.95 1 0.94 1.00 

Specificity ............................................................................................................. >0.50 0.98 0.84 

Predictive Value of a Fail .................................................................................... >0.50 0.99 0.92 

Kappa Statistic ..................................................................................................... >0.70 0.94 0.87 

1 = Borderline fail. 

For half masks, revised PortaCount®

QNFT protocol 1 failed to meet the 

sensitivity value specified by ANSI 

Z88.10–2001, and, consistent with this 

failure, the value for the predictivevalue-of-a-pass variable was marginal. 

However, for full-facepiece respirators, 

the sensitivity value for this proposed 

protocol exceeded the ANSI 

requirement, although the predictivevalue-of-a-pass variable was again 

slightly below the ANSI specification. 

The failure of this proposed protocol to 

attain an adequate sensitivity value 

when applied to half masks indicates 

that, for half masks, the proposed 

protocol is susceptible to alpha, or false 

positive, error—i.e., it would pass some 

half masks that would function below a 

fit factor of 100 when tested with the 

protocol used as the criterion measure 

(i.e., the standard PortaCount® QNFT 

protocol). The authors did not provide 

an explanation for this deficiency. 

However, the deficiency is unlikely to 

be the result of statistical error because 

the number of test subjects appeared to 

be adequate, and a procedural or 

measurement error should have 

decreased the sensitivity value for 

revised PortaCount® QNFT protocol 2, 

which was not the case. Despite these 

problems, revised PortaCount® QNFT 

protocol 1 performed well above the 

values established by the ANSI standard 

for the three remaining variables, 

including specificity, predictive value of 

a fail, and the kappa statistic. These 

values indicate that the vast majority of 

the test subjects who passed (or failed) 

the criterion measure also passed (or 

failed) the proposed protocol, and the 

proposed protocol correlated highly 

with the criterion measure. Nonetheless, 

the fact that revised PortaCount® QNFT 

protocol 1 failed to meet the sensitivity 

value specified by ANSI Z88.10–2001 

for half masks raises the question of 

whether it is as protective as the 

standard PortaCount® QNFT protocol, 

and OSHA has raised this as an issue for 

public comment (see below). 

The variables for revised PortaCount®

QNFT protocol 2 had sensitivity values 

for both half masks and full-facepiece 

respirators well in excess of the 

sensitivity value specified by the ANSI 

standard. The sensitivity values for this 

proposed protocol demonstrate that it 

identified 100% of the poorly fitting 

half masks and full-facepiece 

respirators. In addition, this proposed 

protocol performed well above the 

values listed in the ANSI standard for 

the four remaining variables, including 

predictive value of a pass, specificity, 

predictive value of a fail, and the kappa 

statistic. Consistent with the sensitivity 

values derived for this proposed 

protocol, these four values indicate that 

the proposed protocol resulted in fit 

factors that accurately identified half 

masks and full-facepiece respirators 

with acceptable and poor fits, and that 

these fit factors agreed closely with the 

fit factors attained from the criterion 

measure. 

In discussing the results for revised 

PortaCount® QNFT protocol 2, the 

authors noted that excluding the two 

least strenuous fit-testing exercises (i.e., 

the initial normal-breathing exercise 

and the deep-breathing exercise) from 

this proposed protocol was a 

conservative approach in that the 

proposed protocol was more likely than 

protocols consisting of eight fit-testing 

exercises to detect respirator leakage 

(i.e., using data from less strenuous fittesting exercises inappropriately inflates 

the overall fit factor for respirators, 

thereby increasing alpha error). Another 

conservative approach used by this 

proposed protocol was raising the passfail criterion for half masks from a fit 

factor of 100 to 200, and, for fullfacepiece respirators, from 500 to 1,000. 

This approach likely enhanced the 

sensitivity of the proposed protocol. 

However, enhancing sensitivity may 

increase beta (false-negative) error, 

which would increase the number of 

repeated tests and, consequently, the 

total testing time required by some 

employees to identify a respirator 

having an acceptable fit. 

C. Conclusions 

OSHA believes that the information 

submitted by Mr. Weed in support of 

the proposed protocols meets the 

criteria for determining whether OSHA 

must publish fit-testing protocols for 

notice-and-comment rulemaking 

established by the Agency in Part II of 

Appendix A of its Respiratory 

Protection Standard. Therefore, the 

Agency concludes that the proposed 

protocols warrant notice-and-comment 

rulemaking under Section 6(b)(7) of the 

Act (29 U.S.C. 655), and is initiating this 

rulemaking to determine whether to 

approve these proposed protocols for 

inclusion in Part I of Appendix A of its 

Respiratory Protection Standard. 

The only differences between the two 

proposed protocols and the standard 

PortaCount® QNFT protocol specified 

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3530 Federal Register / Vol. 74, No. 12 / Wednesday, January 21, 2009 / Proposed Rules 

currently in Part I.C.3 of Appendix A of 

the Respiratory Protection Standard are 

the duration of the exercises used 

during fit testing, and for revised 

PortaCount® QNFT protocol 2, the 

exclusion of the two least strenuous fittesting exercises and the raising of the 

minimum passing criteria. Therefore, 

the Agency is proposing to add the 

proposed protocols to Part I.C.3 of 

Appendix A (see section IV of this 

preamble titled ‘‘Proposed Amendment 

to the Standard’’). In addition to 

decreasing exercise durations from 60 

seconds to 30 or 40 seconds, the 

proposed revisions to the regulatory text 

would limit use of revised PortaCount®

QNFT protocol 2 to respirator users who 

demonstrate a minimum passing criteria 

of 200 for half masks or 1,000 for fullfacepiece respirators. If approved, the 

proposed protocols would be 

alternatives to the existing quantitative 

fit-testing protocols already listed in the 

Part I of Appendix A of the Respiratory 

Protection Standard; employers would 

be free to select these alternatives or to 

continue using any of the other 

protocols currently listed in the 

appendix. 

D. Issues for Public Comment 

OSHA invites comments and data 

from the public regarding the accuracy 

and reliability of the two proposed 

protocols, their effectiveness in 

detecting respirator leakage, and their 

usefulness in selecting respirators that 

will protect employees from airborne 

contaminants in the workplace. 

Specifically, the Agency invites public 

comment on the following issues: 

• Was the study described in the 

peer-reviewed journal article well 

controlled, and conducted according to 

accepted experimental design practices 

and principles? 

• Were the results of the study 

described in this article properly, fully, 

and fairly presented and interpreted? 

• Will the proposed protocols 

generate reproducible fit-testing results? 

• Will the proposed protocols reliably 

identify respirators with unacceptable 

fit as effectively as the quantitative fittesting protocols, including the standard 

PortaCount® QNFT protocol, already 

listed in Part I.C.3 of Appendix A of the 

Respiratory Protection Standard? 

• Is the test-sensitivity value of 0.91 

obtained for half masks by revised 

PortaCount® QNFT protocol 1 

acceptable in view of the test-sensitivity 

value of 0.95 required by ANSI Z88.10– 

2001. If not, would it be appropriate for 

OSHA to limit application of revised 

PortaCount® QNFT protocol 1 to fullfacepiece respirators? 

• The study evaluating the proposed 

protocols involved only elastomeric 

half-mask and full-facepiece respirators. 

Accordingly, is it appropriate to apply 

the results of the study to other types of 

respirators (e.g., filtering-facepiece 

respirators)? 

III. Procedural Determinations 

A. Legal Authority 

The purpose of the Occupational 

Safety and Health Act of 1970 (‘‘the 

Act’’; 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) and 654(b)). 

Under the Act, a safety or health 

standard is a standard that ‘‘requires 

conditions, or the adoption or use of one 

or more practices, means, methods, 

operations, or processes, reasonably 

necessary or appropriate to provide safe 

or healthful employment or places of 

employment’’ (29 U.S.C. 652(8)). A 

standard is reasonably necessary or 

appropriate within the meaning of 

Section 652(8) of the Act when it 

substantially reduces or eliminates a 

significant workplace risk, and is 

technologically and economically 

feasible, cost effective, consistent with 

prior Agency action or supported by a 

reasoned justification for departing from 

prior Agency action, and supported by 

substantial evidence; it also must 

effectuate the Act’s purposes better than 

any national consensus standard it 

supersedes (see International Union, 

UAW v. OSHA (LOTO II), 37 F.3d 665 

(D.C. Cir. 1994); and 58 FR 16612–16616 

(March 30, 1993)). Rules promulgated 

by the Agency must be highly protective 

(see 58 FR 16612, 16614–15 (March 30, 

1993); LOTO II, 37 F.3d 665, 669 (D.C. 

Cir. 1994)). Moreover, Section 8(g)(2) of 

the Act authorizes OSHA ‘‘to prescribe 

such rules and regulations as [it] may 

deem necessary to carry out its 

responsibilities under the Act’’ (see 29 

U.S.C. 657(g)(2)). 

Based on the available evidence, 

OSHA has preliminarily determined 

that the protocols described in the 

proposed rule meet the legal 

requirements to provide substantial 

protection to employees who use 

respirators when exposed to hazardous 

atmospheres (see Industrial Union Dept. 

v. American Petroleum Institute, 448 

U.S. 607, 655 (1980); International 

Union v. Pendergrass, 878 F.2d 389, 

392–93 (DC Cir. 1989); Building and 

Construction Trades Dept., AFL-CIO v. 

Brock, 838 F.2d 1258, 1264–65 (DC Cir. 

1988)). OSHA also made a preliminary 

finding that the proposed rule is 

technologically feasible because the 

protective measures it requires already 

exist (see American Textile Mfrs. 

Institute v. OSHA (Cotton Dust), 452 

U.S. 490, 513 (1981); American Iron and 

Steel Institute v. OSHA (Lead II), 939 

F.2d 975, 980 (DC Cir. 1991)). 

Specifically, employers covered by this 

proposal already must comply with the 

fit-testing requirements specified in 

paragraph (f) of OSHA’s Respiratory 

Protection Standard at 29 CFR 1910.134. 

Accordingly, these provisions currently 

are protecting their employees from the 

significant risk that results from poorly 

fitting respirators. In this regard, for 

OSHA to adopt the proposed protocols 

in the final rule, OSHA would have to 

determine that the proposed protocols 

provide employees with protection that 

is comparable to the protection afforded 

to them by the provisions of the 

standard PortaCount® QNFT protocol. If 

adopted, the protocols would not 

replace existing fit-testing protocols, but 

instead would be alternatives to them. 

Therefore, OSHA preliminarily finds 

that the proposal would not directly 

increase or decrease the protection 

afforded to employees, nor would it 

increase employers’ compliance 

burdens. As demonstrated in the 

following section, the proposal may 

reduce employers’ compliance burdens 

by decreasing the time required to fit 

test respirators for employee use. 

Accordingly, OSHA concludes that it is 

unnecessary to determine significant 

risk or the extent to which this proposal 

would reduce that risk, as typically 

would be required by Industrial Union 

Department, AFL-CIO v. American 

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

The Agency believes that the 

proposed rule is economically feasible 

because the employers can absorb or 

pass on the costs of compliance without 

threatening their long-term profitability 

or competitive structure (see Cotton 

Dust, 452 U.S. at 530 n. 55 (1981); Lead 

II, 939 F.2d 975, 980 (DC Cir. 1991)). 

Moreover, the preliminary economic 

analysis of the proposed rule describes 

the benefits and costs of the proposed 

rule (see section III.B. of this preamble, 

‘‘Preliminary Economic Analysis and 

Initial Regulatory Flexibility Analysis’’). 

Based on this information, OSHA made 

a preliminary determination that the 

proposed rule is an economically 

feasible means of meeting its statutory 

objective of reducing the risk associated 

with employee exposure to hazardous 

atmospheres while using respirators (see 

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4The standard PortaCount® QNFT protocol is the 

only ambient-aerosol protocol currently listed in 

Appendix A of the Respiratory Protection Standard. 

Cotton Dust, 453 U.S. at 514 n. 32 

(1981); LOTO II, 37 F.3d 665, 668 (DC 

Cir. 1994)). 

B. Preliminary Economic Analysis and 

Initial Regulatory Flexibility Analysis 

The proposal is not economically 

significant within the context of 

Executive Order (‘‘E.O.’’) 12866 (58 FR 

51735), or a ‘‘major rule’’ under Section 

804 of the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(‘‘SBREFA’’; 5 U.S.C. 804). The proposal 

would impose no additional costs on 

any private-or public-sector entity, and 

does not meet any of the criteria for a 

significant or major rule specified by 

E.O. 12866 or other relevant statutes. 

The proposal offers employers 

additional options to fit test their 

employees for respirator use. In this 

regard, OSHA would supplement the 

standard PortaCount® QNFT protocol 

currently in Appendix A of the 

Respiratory Protection Standard with 

the proposed protocols if it approves 

them as a result of this proposed 

rulemaking. According to a recent 

survey of respirator use conducted by 

the National Institute for Occupational 

Safety and Health and the Bureau of 

Labor Statistics, approximately 7,500 

establishments currently use an 

ambient-aerosol protocol out of nearly 

282,000 establishments found by the 

survey to require respirator use (Ex. 6– 

3, Docket No. H049C (‘‘Respiratory 

Protection—Assigned Protection 

Factors’’).4

Under this proposal, employers 

would have a choice between the 

standard PortaCount® QNFT protocol 

consisting of exercises lasting one 

minute each, or the proposed protocols 

with exercises (six or eight) lasting 30 or 

40 seconds each. By providing 

regulatory flexibility to these employers, 

the proposal may reduce their costs by 

decreasing fit-testing time. In this 

regard, OSHA assumes that the 

proposed protocols would be adopted 

by some employers who currently use 

the standard PortaCount® QNFT 

protocol for their employees. These 

employers would adopt the proposed 

protocols because these protocols would 

take less time to administer than the 

standard PortaCount® QNFT protocol, 

thereby decreasing the cost required for 

fit testing their employees. However, the 

Agency believes that the proposed 

protocols are unlikely to be adopted by 

employers who currently perform fit 

testing using other quantitative or 

qualitative fit tests because of the 

significant equipment and training 

investment they already have made to 

administer these fit tests. 

Based on the above discussion, the 

Agency preliminarily concludes that 

this proposed rulemaking would impose 

no additional costs on employers, 

thereby eliminating the need for a 

preliminary economic analysis. 

Moreover, OSHA certifies that the 

proposal would not have a significant 

impact on a substantial number of small 

entities, and that the Agency does not 

have to prepare an initial regulatory 

flexibility analysis for this rulemaking 

under the SBREFA (5 U.S.C. 601 et 

seq.). 

C. Paperwork Reduction Act 

After thoroughly analyzing the 

proposed fit-testing provisions in terms 

of the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq. and 5 CFR part 

1320), OSHA believes that these 

provisions would not add to the existing 

collection of information (i.e., 

paperwork) requirements regarding fit 

testing employees for respirator use. The 

paperwork requirement specified in 

paragraph (m)(2) of OSHA’s Respiratory 

Protection Standard at 29 CFR 1910.134 

specifies that employers must document 

and maintain the following information 

on quantitative fit tests administered to 

employees: the name or identification of 

the employee tested; the type of fit test 

performed; the specific make, model, 

style, and size of respirator tested; the 

date of the test; and the test results. The 

employer must maintain this record 

until the next fit test is administered. 

However, this paperwork requirement 

would remain the same whether 

employers currently use the other fittesting protocols already listed in Part I 

of Appendix A of the Respiratory 

Protection Standard, or implement the 

proposed fit-testing protocols instead. 

Therefore, using one of the proposed fittesting protocols in the context of the 

existing fit-testing protocols would not 

involve an additional paperwork-burden 

determination by OSHA because it 

already accounts for this burden under 

the paperwork analysis for the 

Respiratory Protection Standard (OMB 

Control Number 1218–0099). 

Members of the public may send 

comments on this paperwork analysis 

to: Office of Information and Regulatory 

Affairs (Attention: Desk Officer for 

OSHA), Office of Management and 

Budget, Room 10235, 725 17th Street, 

NW., Washington, DC 20503. The 

Agency also encourages commenters to 

submit a copy of their comments on this 

paperwork analysis to OSHA, along 

with their other comments on the 

proposed rule. 

D. Federalism 

The Agency reviewed the proposal 

according to the most recent Executive 

Order (‘‘E.O.’’) on Federalism (E.O. 

13132; 64 FR 43225). This E.O. requires 

that Federal agencies, to the extent 

possible, refrain from limiting State 

policy options, consult with States 

before taking actions that restrict their 

policy options, and take such actions 

only when clear constitutional authority 

exists and the problem is national in 

scope. The E.O. allows Federal agencies 

to preempt State law only with the 

expressed consent of Congress. In such 

cases, Federal agencies must limit 

preemption of State law to the extent 

possible. 

Section 18 of the Act; 29 U.S.C. 651 

et seq.), expressly provides OSHA with 

authority to preempt State occupational 

safety and health standards to the extent 

that the Agency promulgates a Federal 

standard under Section 6 of the Act. 

Accordingly, Section 18 of the Act 

authorizes the Agency to preempt State 

promulgation and enforcement of 

requirements dealing with occupational 

safety and health issues covered by 

OSHA standards unless the State has an 

OSHA-approved occupational safety 

and health plan (namely, is a ‘‘Stateplan State’’). (See Gade v. National 

Solid Waste Management Association, 

112 S. Ct. 2374 (1992).) 

With respect to States that do not 

have OSHA-approved plans, the Agency 

concludes that this proposed rule 

conforms to the preemption provisions 

of the Act. Additionally, Section 18 of 

the Act prohibits States without 

approved plans from issuing citations 

for violations of OSHA standards; the 

Agency finds that the proposed 

rulemaking does not expand this 

limitation. Therefore, for States that do 

not have approved occupational safety 

and health plans, this proposed rule 

would not affect the preemption 

provisions of Section 18 of the Act. 

OSHA has authority under E.O. 13132 

to propose the use of additional fittesting protocols under its Respiratory 

Protection Standard at 29 CFR 1910.134 

because the problems addressed by 

these fit-testing requirements are 

national in scope. The Agency 

preliminarily concludes that the fittesting protocols proposed by this 

rulemaking would provide employers in 

every State with procedures that would 

assist them in protecting their 

employees from the risks of exposure to 

atmospheric hazards. In this regard, the 

proposal offers thousands of employers 

across the nation an opportunity to use 

additional protocols to assess respirator 

fit among their employees. Therefore, 

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3532 Federal Register / Vol. 74, No. 12 / Wednesday, January 21, 2009 / Proposed Rules 

5The Respiratory Protection Standard for the 

construction industry at 29 CFR 1926.103 crossreferences the Respiratory Protection Standard for 

general industry at 29 CFR 1910.134. 

the proposal would provide employers 

in every State with an alternative means 

of complying with the fit-testing 

requirements specified by paragraph (f) 

of OSHA’s Respiratory Protection 

Standard. 

Should the Agency adopt a proposed 

standard in a final rulemaking, Section 

18(c)(2) of the Act (29 U.S.C. 667(c)(2)) 

requires State-plan States to adopt the 

same standard, or to develop and 

enforce an alternative standard that is at 

least as effective as the OSHA standard. 

However, the new fit-testing protocols 

proposed in this rulemaking would only 

provide employers with an alternative 

to the existing requirements for fittesting protocols specified in the 

Respiratory Protection Standard; 

therefore, the alternative is not, itself, a 

mandatory standard. Accordingly, 

States with OSHA-approved State Plans 

would not be obligated to adopt the 

final provisions that may result from 

this proposed rulemaking. Nevertheless, 

OSHA strongly encourages them to 

adopt the final provisions to provide 

additional compliance options to 

employers in their States. 

In summary, this proposed rule 

complies with E.O. 13132. In States 

without OSHA-approved State Plans, 

Congress expressly provides for OSHA 

standards to preempt State job safety 

and health rules in areas addressed by 

the Federal standards; in these States, 

this proposed rule would limit State 

policy options in the same manner as 

every standard promulgated by the 

Agency. In States with OSHA-approved 

State Plans, this rulemaking does not 

significantly limit State policy options. 

E. State-Plan States 

Section 18(c)(2) of the Act (29 U.S.C. 

667(c)(2)) requires State-Plan States to 

adopt mandatory standards promulgated 

by OSHA. However, as noted in the 

previous section of this preamble, States 

with OSHA-approved State Plans would 

not be obligated to adopt the final 

provisions that may result from this 

proposed rulemaking. Nevertheless, 

OSHA strongly encourages them to 

adopt the final provisions to provide 

compliance options to employers in 

their States. In this regard, OSHA 

preliminarily concludes that the fittesting protocols proposed by this 

rulemaking would provide employers in 

the State-Plan States with procedures 

that would protect the safety and health 

of employees who use respirators 

against hazardous airborne substances 

in their workplace at least as well as the 

standard PortaCount® QNFT protocol. 

The 24 States and two Territories with 

State Plans are: Alaska, Arizona, 

California, Hawaii, Indiana, Iowa, 

Kentucky, Maryland, Michigan, 

Minnesota, Nevada, New Mexico, North 

Carolina, Oregon, Puerto Rico, South 

Carolina, Tennessee, Utah, Vermont, 

Virginia, Washington, and Wyoming. 

Connecticut, New Jersey, New York, and 

the Virgin Islands have OSHA-approved 

State Plans that apply to State and local 

government employees only. 

F. Unfunded Mandates Reform Act 

OSHA reviewed the proposal 

according to the Unfunded Mandates 

Reform Act of 1995 (‘‘UMRA’’; 2 U.S.C. 

1501 et seq.) and Executive Order 12875 

(58 FR 58093). As discussed above in 

section III.B of this preamble 

(‘‘Preliminary Economic Analysis and 

Initial Regulatory Flexibility Analysis’’), 

the Agency made a preliminary 

determination that the proposal imposes 

no additional costs on any private-or 

public-sector entity. The substantive 

content of the proposal applies only to 

employers whose employees use 

respirators for protection against 

airborne workplace contaminants, and 

compliance with the proposal would be 

strictly optional for these employers. 

Accordingly, the proposal would 

require no additional expenditures by 

either public-or private-sector 

employers; therefore, this proposal is 

not a significant regulatory action 

within the meaning of Section 202 of 

the UMRA (2 U.S.C. 1532). 

Under voluntary agreement with 

OSHA, some States enforce compliance 

with their State standards on publicsector entities, and these agreements 

specify that these State standards must 

be equivalent to OSHA standards. Thus, 

although OSHA preliminarily concludes 

that the proposed protocols would 

impose no additional costs on publicsector employers, the proposal would 

not involve any unfunded mandates 

imposed on any other State or local 

government entity. Consequently, this 

proposal 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 

preliminarily certifies that this proposal 

does not mandate that State, local, or 

tribal governments adopt new, 

unfunded regulatory obligations, nor 

does the proposed rule increase 

expenditures by the private sector of 

more than $100 million a year. 

G. Applicability of Existing Consensus 

Standards 

Section 6(b)(8) of the Act (29 U.S.C. 

655(b(8)) requires OSHA to explain 

‘‘why a rule promulgated by the 

Secretary differs substantially from an 

existing national consensus standard,’’ 

by publishing ‘‘a statement of the 

reasons why the rule as adopted will 

better effectuate the purposes of the Act 

than the national consensus standard.’’ 

In this regard, when OSHA promulgated 

its original respirator fit-testing 

protocols under Appendix A of its final 

Respiratory Protection Standard (29 CFR 

1910.134), no national consensus 

standards addressed these protocols. 

Later, the American National Standards 

Institute (ANSI) developed a national 

consensus standard on fit-testing 

protocols (‘‘Respirator Fit Testing 

Methods,’’ ANSI Z88.10–2001) as an 

adjunct to its national consensus 

standard on respiratory-protection 

programs. 

Paragraph 7.2 of ANSI Z88.10–2001 

specifies the requirements for 

conducting a PortaCount® quantitative 

fit test, which differ substantially from 

the standard PortaCount® QNFT 

protocol provided in Part I.C.3 of 

OSHA’s Respiratory Protection 

Standard. These protocols differ in 

terms of the fit-testing exercises 

required, and the duration of these 

exercises. In addition, the ANSI 

standard provides no data or 

information on the accuracy and 

reliability of its protocol. The Agency 

believes that limiting fit-testing options 

to the protocol currently specified by 

the ANSI standard would seriously 

impede the development of fit-testing 

protocols that are more accurate and 

reliable, and less costly to administer, 

than the ANSI protocol. 

H. Advisory Committee for Construction 

Safety and Health Review of the 

Proposed Standard 

The proposal to add two quantitative 

fit-testing protocols to Part I.C of 

Appendix A of OSHA’s Respiratory 

Protection Standard would affect the 

construction industry because it revises 

the fit-testing requirements specified by 

the standard, which is applicable to the 

construction industry.5 Whenever the 

Agency proposes a rule involving 

construction activities, the Contract 

Work Hours and Safety Standards Act 

(Construction Safety Act) (40 U.S.C. 

3704), OSHA regulations governing the 

Advisory Committee for Construction 

Safety and Health (ACCSH) (i.e., 29 CFR 

1912.3), and provisions governing 

OSHA rulemaking (i.e., 29 CFR 1911.10) 

require OSHA to consult with the 

ACCSH. Specifically, 29 CFR 1911.10 

requires that the Assistant Secretary 

provide the ACCSH with ‘‘any proposal 

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Federal Register / Vol. 74, No. 12 / Wednesday, January 21, 2009 / Proposed Rules 3533 

6 Information on using this Web site to submit 

comments and to access dockets is available at the 

Web site’s ‘‘User Tips’’ link. Contact the OSHA 

Docket Office for information and assistance about 

using the Internet to locate docket submissions. 

of his own,’’ together with ‘‘all pertinent 

factual information available to him, 

including the results of research, 

demonstrations, and experiments.’’ 

Accordingly, OSHA provided the 

ACCSH members with copies of the 

proposal and other relevant information 

several weeks before the January 24, 

2008, ACCSH meeting. OSHA staff met 

with the ACCSH at that meeting to 

discuss the proposal, and to answer 

members’ questions about it. At the end 

of this session, the ACCSH voted to 

defer making any recommendations to 

OSHA regarding the proposal until their 

next meeting so they could thoroughly 

review the proposal and the other 

relevant information, including the 

peer-reviewed article described above 

under section II.B of this notice 

(‘‘Summary of the Peer-Reviewed 

Article’’). 

At the May 16, 2008, ACCSH meeting, 

OSHA staff again met with the ACCSH 

to discuss the proposal. Following this 

discussion, the ACCSH recommended 

unanimously that OSHA: (1) Remove 

the PortaCount® QNFT protocol 1 from 

the proposal because it failed to meet 

the ANSI Z88.10–2001 criteria for test 

sensitivity and predicted value of a 

pass; and (2) include the PortaCount®

QNFT protocol 2 in the proposal 

because it met all of the ANSI Z88.10– 

2001 criteria. 

I. Public Participation 

OSHA encourages members of the 

public to participate in this rulemaking 

by submitting comments on the 

proposal, as well as documentary 

evidence in support of these comments. 

Accordingly, the Agency invites 

interested parties having knowledge of, 

or experience with, respirator fit-testing 

protocols to participate in this process, 

and welcomes any pertinent 

information that will provide it with the 

best available evidence on which to 

develop the final regulatory provisions. 

The Agency invites interested parties to 

submit written views, arguments, and 

data concerning this proposed rule, 

including: responses to the issues 

specified under section II.B of this 

preamble (‘‘Issues for Public 

Comment’’), and comments on OSHA’s 

determination of the economic or other 

regulatory impacts of the proposed rule 

on the regulated community. Comments 

may be submitted in response to this 

Federal Register notice: (1) 

Electronically at http:// 

www.regulations.gov, which is the 

Federal eRulemaking portal; (2) by 

facsimile (fax); or (3) by hard copy. 

When submitting comments, follow the 

procedures specified above in the 

sections of this preamble titled DATES

and ADDRESSES. All comments, 

attachments, and other material must 

identify the Agency name and the 

OSHA docket number for this 

rulemaking (Docket No. OSHA–2007– 

0007). In addition, comments must 

clearly identify the provision of the 

proposal being addressed, the position 

taken with respect to an issue, and the 

basis for that position. Comments, along 

with supporting data and references, 

received by the end of the specified 

comment period will become part of the 

proceedings record. This material, 

including comments, is available for 

public inspection without change at 

http://www.regulations.gov 6 and at 

OSHA’s docket Web site at http:// 

www.dockets.osha.gov (under Docket 

No. OSHA–2007–0007). Therefore, 

OSHA cautions commenters about 

submitting personal information such as 

social security numbers and birth dates 

with their comments. Exhibits 

referenced in this Federal Register 

notice also will be available at http:// 

www.regulations.gov and http:// 

www.dockets.osha.gov under the same 

docket number. 

Material that supplements electronic 

comments may be uploaded 

electronically (including by fax). 

Supplemental material also may be 

mailed to the OSHA Docket Office (see 

the section of this preamble titled 

ADDRESSES) provided it identifies the 

electronic comments using the 

commenter’s name, comment 

submission date, and docket number so 

OSHA can attach the materials to the 

appropriate comments. Reading or 

downloading some of this material (e.g., 

copyrighted material) from the http:// 

www.regulations.gov and http:// 

www.dockets.osha.gov Web sites is not 

possible; however, this material is 

available for inspection and copying 

(along with comments and exhibits) at 

the OSHA Docket Office (see the section 

of this preamble titled ADDRESSES). 

Security-related procedures may 

delay significantly the delivery of 

comments and other material submitted 

through the regular mail. For 

information about security procedures 

involving the regular mail, as well as 

express delivery and messenger or 

courier service, contact the OSHA 

Docket Office at (202) 693–2350 (TTY 

(877) 889–5627). 

Electronic copies of this Federal 

Register notice are available at http:// 

www.regulations.gov. This notice, as 

well as news releases and other relevant 

information, also are available at 

OSHA’s Web site at http:// 

www.osha.gov. 

List of Subjects in 29 CFR Part 1910 

Fit testing, Hazardous substances, 

Health, Occupational safety and health, 

Respirators, Toxic substances. 

Authority and Signature 

Thomas M. Stohler, 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. Accordingly, 

the Agency issues the proposed 

amendment under the following 

authorities: Sections 4, 6(b), 8(c), and 

8(g) of the Occupational Safety and 

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

657); Section 3704 of the Contract Work 

Hours and Safety Standards Act (40 

U.S.C. 3701 et seq.); Section 41 of the 

Longshore and Harbor Worker’s 

Compensation Act (33 U.S.C. 941); 

Secretary of Labor’s Order No. 5–2007 

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

Signed at Washington, DC, on January 13, 

2009. 

Thomas M. Stohler, 

Acting Assistant Secretary of Labor for 

Occupational Safety and Health. 

IV. Proposed Amendment to the 

Standard 

For the reasons stated above in the 

preamble, the Agency proposes to 

amend 29 CFR part 1910 as follows: 

PART 1910—[AMENDED] 

Subpart I—[Amended] 

1. Revise the authority citation for 

subpart I of part 1910 to read as follows: 

Authority: Sections 4, 6, and 8 of the 

Occupational Safety and Health Act of 1970 

(29 U.S.C. 653, 655, and 657); Section 3704 

of the Contract Work Hours and Safety 

Standards Act (40 U.S.C. 3701 et seq.); 

Section 41, Longshore and Harbor Worker’s 

Compensation Act (33 U.S.C. 941); and 

Secretary of Labor’s Order Nos. 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. Sections 29 CFR 

1910.132, 1910.134, and 1910.138 also issued 

under 29 CFR part 1911. Sections 29 CFR 

1910.133, 1910.135, and 1910.136 also issued 

under 29 CFR part 1911 and 5 U.S.C. 553. 

2. Add paragraphs (c) and (d) to 

section C.3 of Appendix A to § 1910.134 

to read as follows: 

§ 1910.134 Respiratory protection. 

* * * * * 

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3534 Federal Register / Vol. 74, No. 12 / Wednesday, January 21, 2009 / Proposed Rules 

Appendix A to § 1910.134: Fit Testing 

Procedures (Mandatory) 

* * * * * 

C. * * * 

* * * * * 

3. * * * 

* * * * * 

(c) Revised PortaCount® Quantitative FitTesting Protocol 1. 

(1) When administrating this protocol to 

test subjects (i.e., employees), employers 

must comply with the requirements specified 

in paragraphs (a) and (b) of Part 1.C.3 of this 

appendix. In addition, employers must use 

the eight fit-testing exercises specified in 

section I.A.14 of this appendix when 

administering this protocol. Test subjects 

must perform these fit-testing exercises for at 

least 30 seconds, except for the grimace 

exercise, which test subjects must perform 

for 15 seconds. 

(2) Calculate the overall fit factor for this 

protocol as follows: 

Overall Fit Factor = ++++++

7

1111111 123457 /////// ff ff ff ff ff ff ff8

Note to Paragraph (c)(2): Only seven of the 

eight fit-testing exercises are used in this 

calculation because the results for the 

grimace exercise (ff6) are not included in the 

calculation. 

(d) Revised PortaCount® Quantitative FitTesting Protocol 2. 

(1) When administrating this protocol to 

test subjects (i.e., employees), employers 

must comply with the requirements specified 

in paragraphs (a) and (b) of Part 1.C.3 of this 

appendix. In addition, employers must use 

the fit-testing exercises specified in section 

I.A.14 of this appendix when administering 

this protocol, except that test subjects must 

not perform the fit-testing exercises specified 

by paragraphs (a)(1) and (a)(2) of section 

I.A.14 (i.e., the initial normal-breathing 

exercise and the deep-breathing exercise, 

respectively). Test subjects must perform 

these fit-testing exercises for at least 40 

seconds, except for the grimace exercise, 

which test subjects must perform for 15 

seconds. 

(2) This protocol requires the following 

minimum pass-fail fit-testing criteria: for half 

masks, an overall fit factor of 200 (instead of 

the usual 100); and, for full-facepiece 

respirators, an overall fit factor of 1,000 

(instead of the usual 500). 

(3) Calculate the overall fit factor for this 

protocol as follows: 

Overall Fit Factor = ++++

5

11111 34578 ///// ff ff ff ff ff

Note to Paragraph (d)(3): Only five of the 

eight fit-testing exercises are used in this 

calculation because test subjects do not 

perform the initial normal-breathing exercise 

(ff1) and the deep-breathing exercise (ff2), and 

the results for the grimace exercise (ff6) are 

not included in the calculation. 

* * * * * 

[FR Doc. E9–922 Filed 1–16–09; 8:45 am] 

BILLING CODE 4510–26–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Parts 160, 161, 164, and 165 

[USCG–2005–21869] 

RIN 1625–AA99 

Vessel Requirements for Notices of 

Arrival and Departure, and Automatic 

Identification System 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of public meeting; 

request for comments. 

SUMMARY: The Coast Guard announces a 

public meeting to receive comments on 

a notice of proposed rulemaking to 

amend Coast Guard regulations 

governing Notice of Arrival and 

Departure (NOAD) and Automatic 

Identification System (AIS) 

requirements. 

DATES: A public meeting will be held on 

March 5, 2009, from 12:30 p.m. to 3 

p.m. to provide an opportunity for oral 

comments. Written comments and 

related material may also be submitted 

to Coast Guard personnel specified at 

that meeting. The comment period for 

the proposed rule closes April 15, 2009. 

All comments and related material 

submitted after the meeting must either 

be submitted to our online docket via 

http://www.regulations.gov on or before 

April 15, 2009, or reach the Docket 

Management Facility by that date. 

ADDRESSES: The public meeting will be 

held at the United States Coast Guard 

Headquarters Building, Room 2415, 

2100 2nd Street, SW., Washington, DC 

20593; a government-issued photo 

identification (for example, a driver’s 

license) will be required for entrance to 

the building. 

You may submit written comments 

identified by docket number USCG– 

2005–21869 before or after the meeting 

using any one of the following methods: 

(1) Federal eRulemaking Portal: 

http://www.regulations.gov. 

(2) Fax: 202–493–2251. 

(3) Mail: Docket Management Facility 

(M–30), U.S. Department of 

Transportation, West Building Ground 

Floor, Room W12–140, 1200 New Jersey 

Avenue, SE, Washington, DC 20590– 

0001. 

(4) Hand delivery: Same as mail 

address above, between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. The telephone number 

is 202–366–9329. 

To avoid duplication, please use only 

one of these four methods. Our online 

docket for this rulemaking is available 

on the Internet at http:// 

www.regulations.gov under docket 

number USCG–2005–21869. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions concerning the 

NOAD portion of this proposed 

rulemaking or concerning the public 

meeting, please contact Lieutenant 

Sharmine Jones, Office of Vessel 

Activities (CG–543), Coast Guard, 

Sharmine.N.Jones@uscg.mil, telephone 

202–372–1234. If you have questions on 

the AIS portion of this proposed 

rulemaking, contact Mr. Jorge Arroyo, 

Office of Navigation Systems (CG–5413), 

Coast Guard, Jorge.Arroyo@uscg.mil, 

telephone 202–372–1563. If you have 

questions on viewing or submitting 

material to the docket, call Ms. Renee V. 

Wright, Program Manager, Docket 

Operations, telephone 202–366–9826. 

SUPPLEMENTARY INFORMATION: 

Background and Purpose 

We published a notice of proposed 

rulemaking (NPRM) in the Federal 

Register on December 16, 2008 (73 FR 

76295), entitled ‘‘Vessel Requirements 

for Notices of Arrival and Departure, 

and Automatic Identification System.’’ 

In it we stated our intention to hold a 

public meeting, and to publish a notice 


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