Federal Register / Vol. 70, No. 176 / Tuesday, September 13, 2005 / Rules and Regulations 53925 

evidentiary purposes and the bearer is 

still eligible to have a passport. 

■ 7. Section 51.66(a) is revised to read 

as follows: 

§ 51.66 Expedited passport processing. 

(a) Within the United States, an 

applicant for a passport service 

(including issuance, replacement or the 

addition of visa pages) may request 

expedited processing by a Passport 

Agency. All requests by applicants for 

in-person services at a Passport Agency 

shall be considered requests for 

expedited processing, unless the 

Department has determined that the 

applicant is required to apply at a 

Passport Agency. 

* * * * * 

■ 8. The title of part 51, subpart E is 

revised to read as follows: 

Subpart E—Limitations on Issuance or 

Use of Passports 

* * * * * 

Dated: September 6, 2005. 

Maura Harty, 

Assistant Secretary for Consular Affairs, 

Department of State. 

[FR Doc. 05–18108 Filed 9–12–05; 8:45 am] 

BILLING CODE 4710–06–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1910 

[Docket No. S–023A] 

RIN 1218–AC08 

Updating OSHA Standards Based On 

National Consensus Standards; 

General, Incorporation by Reference; 

Hazardous Materials, Flammable and 

Combustible Liquids; General 

Environmental Controls, Temporary 

Labor Camps; Hand and Portable 

Powered Tools and Other Hand-Held 

Equipment, Guarding of Portable 

Powered Tools; Welding, Cutting and 

Brazing, Arc Welding and Cutting; 

Special Industries, Sawmills 

AGENCY: Occupational Safety and Health 

Administration (OSHA); Labor. 

ACTION: Final rule. 

SUMMARY: OSHA is issuing this final 

rule to delete from OSHA standards 

three references to national consensus 

standards and two references to 

industry standards that are outdated. 

Deleting these references will not 

reduce employee protections. By 

eliminating the outdated references, 

however, OSHA will clarify employer 

obligations under the applicable OSHA 

standards and reduce administrative 

burdens on employers and OSHA. 

These revisions are part of OSHA’s 

overall effort to update OSHA standards 

that reference, or that include language 

taken directly from, outdated consensus 

standards. 

DATES: This final rule will become 

effective on November 14, 2005. 

ADDRESSES: In accordance with 28 

U.S.C. 2112(a), the Agency designates 

the Associate Solicitor of Labor for 

Occupational Safety and Health, Office 

of the Solicitor of Labor, Room S–4004, 

U.S. Department of Labor, 200 

Constitution Avenue, NW., Washington, 

DC 20210, to receive petitions for 

review of the final rule. 

FOR FURTHER INFORMATION CONTACT: For 

general information and press inquiries 

contact Mr. Kevin Ropp, Director, 

OSHA Office of Communications, Room 

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

Constitution Avenue, NW., Washington, 

DC 20210; telephone: (202) 693–1999. 

For technical inquiries contact Mr. Lee 

Smith, Director, Office of Safety 

Systems, Room N–3609, OSHA, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Washington, DC 20210; 

telephone: (202) 693–2255 or fax (202) 

693–1663. Copies of this Federal 

Register notice are available from the 

OSHA Office of Publications, Room N–

3101, U.S. Department of Labor, 200 

Constitution Avenue, NW., Washington, 

DC 20210; telephone: (202) 693–1888. 

Electronic copies of this Federal 

Register notice, as well as news releases 

and other relevant documents, are 

available at OSHA’s Web page at http:// 

www.osha.gov. 

SUPPLEMENTARY INFORMATION: References 

to comments in the rulemaking record 

are found throughout the text of the 

preamble. Comments are identified by 

an assigned exhibit number as follows: 

‘‘Ex. 4–3’’ means Exhibit 4–3 in Docket 

S–023A. A list of the exhibits and 

copies of the exhibits are available in 

the OSHA Docket Office under Docket 

S–023A and at OSHA’s homepage. 

Background 

On November 24, 2004, OSHA 

published a notice in the Federal 

Register announcing its overall project 

to update OSHA standards that are 

based on national consensus standards 

(69 FR 68283). The notice explained the 

reasons for the project and the 

regulatory approaches OSHA plans to 

use to implement the project, including 

notice and comment rulemaking, direct 

final rulemaking, and technical 

amendments. To review the eleven 

comments received on this notice, most 

of which were supportive, see Docket S–

023 at http://dockets.osha.gov. OSHA 

appreciates these comments and will 

welcome additional comments as it 

proceeds with the overall update 

project. 

On the same day, OSHA also 

published in the Federal Register a 

direct final rule (69 FR 68712) and a 

companion proposed rule (69 FR 68706) 

to delete three references to national 

consensus standards and two references 

to industry standards that are outdated. 

OSHA announced that the direct final 

rule would become effective on 

February 22, 2005, unless the Agency 

received a significant adverse comment 

before the comment period closed. 

OSHA received five comments on the 

direct final rule and companion 

proposed rule. OSHA considers one of 

the comments to be significantly 

adverse. On February 18, 2005, OSHA 

published a notice withdrawing the 

direct final rule (70 FR 8291). OSHA is 

treating the five comments as comments 

to the proposed rule, and considered all 

of the comments in publishing this final 

rule. 

Discussion of Changes 

OSHA explained in detail its decision 

to revoke each of the references at issue 

in the direct final and companion 

proposed rules published in the Federal 

Register on November 24, 2004 (69 FR 

68706, 68712), and OSHA incorporates 

those discussions in this final rule. The 

five references are to consensus or 

industry standards issued over 35 years 

ago, and in one case over 60 years ago. 

Some are no longer available to the 

public through the issuing Standards 

Development Organization (SDO). Three 

of the references have been withdrawn 

by their issuing SDOs and not replaced. 

In proposing the revocations, OSHA 

found that the changes would enhance 

employee safety by eliminating 

confusion and clarifying employer 

obligations. OSHA also determined that 

the revocations would not result in 

additional costs to employers, and may 

even produce cost savings. 

The Agency carefully considered all 

comments received. After review of the 

comments, OSHA continues to find that 

revoking the five references is 

appropriate. 

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

OSHA is revoking from its standard for 

flammable and combustible liquids 

American Petroleum Institute Standard 

No. 12A, Specification for Oil Storage 

Tanks with Riveted Shells, Seventh 

Edition, September 1951 (API 12A). 

OSHA included API 12A in the 

standard to provide employers with one 

53926 Federal Register / Vol. 70, No. 176 / Tuesday, September 13, 2005 / Rules and Regulations 

means of complying with the standard’s 

general requirement for atmospheric 

tanks to be ‘‘built in accordance with 

acceptable good standards of design.’’

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

OSHA is revoking the reference for a 

number of reasons. API 12A is over 50 

years old and does not consider recent 

developments in the construction of 

atmospheric tanks. The issuing SDO 

withdrew API 12A in 1974, has not 

replaced it, has not incorporated its 

provisions into another consensus 

standard, and no longer makes the 

standard available to the public. Under 

these circumstances, OSHA does not 

believe it is appropriate to reference the 

standard as a compliance option. 

Because OSHA did not require the use 

of API 12A in the standard, the 

revocation does not change an 

employer’s responsibility for 

constructing properly designed 

atmospheric tanks under 29 CFR 

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

29 CFR 1910.142(c)(4): OSHA is 

revoking from its temporary labor camps 

standard a requirement that drinking 

fountains be constructed in accordance 

with the American National Standard 

Institute Standard Specifications for 

Drinking Fountains, ANSI Z4.2–1942. 

ANSI Z4.2–1942 contains ten specific 

recommendations concerning the 

construction of drinking fountains 

which are based on the technology and 

construction practices that existed in 

1942. All of these recommendations use 

advisory ‘‘should’’ language. The 

issuing SDO withdrew the standard in 

1972 and it has not been replaced. 

OSHA has determined that the 

reference to ANSI Z4.2–1942 should be 

revoked for two reasons. First, because 

the specific recommendations in ANSI 

Z4.2–1942 use advisory language, they 

are unenforceable. See 49 FR 5318, 

February 10, 1984; cf. Marshall v. 

Pittsburgh-Des Moines Steel Company, 

584 F.2d 638, 643–44 (3d Cir. 1978). 

Second, referencing recommendations 

issued over 60 years ago for the 

construction of drinking fountains does 

not enhance the safety and health of 

employees. The technology for 

constructing drinking fountains has 

changed significantly since the 1940’s. 

Since 1942, a number of drinking 

fountain units have become available to 

employers that, while not strictly 

manufactured in accordance with ANSI 

Z4.2–1942, are constructed pursuant to 

good engineering practices and are safe 

to use at temporary labor camps. It does 

not serve employers or employees to 

reference construction specifications 

that do not consider this new 

technology. 

29 CFR 1910.243(e)(1)(i): OSHA is 

revoking from its portable powered tools 

standard a provision that certain power 

lawnmowers designed for sale to the 

general public meet the American 

National Standard Safety Specifications 

for Power Lawnmowers, ANSI B71.1–

X1968 (ANSI B71.1–1968). OSHA is 

replacing this provision with a reference 

to the general machine guarding 

requirements contained in 29 CFR 

1910.212. OSHA is also removing the 

final two sentences of paragraph 

1910.243(e)(1) that describe the types of 

mowers for which the specifications in 

ANSI B71.1–1968 do not apply. OSHA 

is making these changes to simplify and 

clarify the scope and coverage of 29 CFR 

1910.243. Deleting the reference and 

replacing it with a reference to 29 CFR 

1910.212 will both retain the existing 

degree of employee protection, and 

remove a continuing source of 

confusion as to the scope of the 

referenced standard. 

ANSI B71.1–1968 provides safety 

specifications for certain power 

lawnmowers ‘‘designed for sale to the 

general public.’’ Lawnmowers designed 

for commercial use must comply with 

the guarding requirements of 29 CFR 

1910.212(a)(1) and (a)(3)(ii). See 

Memorandum from John Miles to 

Regional Administrators, 

‘‘Misapplication of Power Lawnmower 

Standard 29 CFR 1910.243(e),’’ 1986. It 

is difficult for employers to determine 

which lawnmowers are designed for 

sale to the general public, and which are 

designed for commercial use, and the 

distinction is not particularly relevant to 

protecting employees from the hazards 

associated with operating power 

lawnmowers. 

Furthermore, virtually all of the 

specific provisions contained in ANSI 

B71.1–1968 are included in the text of 

29 CFR 1910.243(e). OSHA considered 

updating the 1968 ANSI reference to the 

1998 version of ANSI B71.1, but 

determined that doing so would not 

clarify the standard because the scope of 

the 1998 version would raise additional 

issues for compliance that are not 

encountered under the existing OSHA 

standard. 

29 CFR 1910.254(d)(1): OSHA is 

revoking from its arc welding and 

cutting standard a recommendation that 

employers be acquainted with the 

American Welding Society’s 

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

OSHA is revoking the reference for 

several reasons. The hazard information 

included in AWS A6.1–1966 is 

extremely outdated, particularly 

compared to the information that 

employers are already required to 

provide to employees under OSHA’s 

Hazard Communication Standard, 29 

CFR 1910.1200. Second, virtually all of 

the recommendations contained in AWS 

A6.1–1966 are covered elsewhere in 

OSHA’s welding standards. For 

example, paragraph 1910.254(d)(1) also 

requires employees performing arc 

welding to be ‘‘acquainted with’’

1910.252(a), (b), and (c). These three 

paragraphs specifically address many of 

the safety-related practices discussed in 

AWS A6.1–1966. Third, other 

applicable OSHA standards protect 

employees performing gas-shielded arc 

welding from many of the underlying 

hazards discussed in AWS A6.1–1966. 

See, e.g., 29 CFR part 1910, subpart Z 

(Toxic and Hazardous Substances). 

29 CFR 1910.265(c)(31)(i): OSHA is 

revoking a provision from its standard 

on Sawmills which suggests that 

employers use ‘‘appropriate traffic 

control devices,’’ as set forth in 

American National Standard D8.1–1967 

for Railroad Highway Grade Crossing 

Protection (ANSI D8.1–1967). ANSI 

withdrew the standard in 1981 and did 

not replace it. OSHA is revoking this 

reference for two main reasons. First, 

referencing a withdrawn 37-year-old 

consensus standard that was intended to 

address railroad and highway grade 

crossings—not crossings specifically in 

sawmills—adds little value to 

employers and employees in the 

sawmill industry. Second, the reference 

uses advisory ‘‘should’’ language and is 

thus unenforceable. See 49 FR 5318, 

February 10, 1984; cf. Marshall, 584 

F.2d at 643–644. Removing such 

provisions clarifies employer 

obligations and enhances OSHA 

enforcement capabilities. See 47 FR 

23477, May 28, 1982; 49 FR 5321, 

February 10, 1984. Because OSHA is 

retaining the mandatory provision in 

paragraph 1910.265(c)(3)(i) that 

employers plainly post railroad tracks 

and other hazardous crossings, 

employees will continue to be alerted to 

potential hazards at these dangerous 

areas. 

Comments Received 

The majority of comments received 

expressed support for this rulemaking. 

For example, the National Automobile 

Dealer’s Association (NADA) stated that 

‘‘without question, OSHA should 

appropriately update or revoke 

references to or language from 

consensus standards that are outdated 

or no longer relevant.’’ (Ex. 4–3). The 

International Brotherhood of Teamsters 

(IBT) stated that it supports OSHA’s first 

rulemaking action associated with the 

update project, and that ‘‘revoking these 

references will not reduce employee 

Federal Register / Vol. 70, No. 176 / Tuesday, September 13, 2005 / Rules and Regulations 53927 

protections provided by each affected 

OSHA standard.’’ (Ex. 4–2). Similarly, 

the National Lumber and Building 

Material Dealer’s Association 

(NLBMDA) stated that it ‘‘supports 

OSHA’s current efforts to update their 

regulations.’’ (Ex. 4–4). 

One commenter recommended that 

OSHA establish a policy to review and 

update consensus standards on a regular 

basis. (Ex. 4–2). As explained in this 

preamble, this rulemaking is the first 

step in the Agency’s overall effort to 

deal with the problem of outdated 

national consensus and industry 

standards in OSHA’s rules. OSHA will 

continue to explore available strategies 

and approaches to update its standards. 

Two commenters representing small 

business employers, NADA and 

NLBMDA, expressed concern about the 

costs and burdens associated with 

obtaining updated versions of national 

consensus and industry standards from 

the issuing SDOs. (Exs. 4–3, 4–4). One 

recommended that OSHA make the 

standards readily available to the 

regulated community by publishing 

referenced consensus standards in full 

in the relevant docket and on the OSHA 

Web site. (Ex. 4–3). 

The Agency recognizes the 

commenters’ concerns regarding the 

availability and cost of consensus and 

industry standards. OSHA will continue 

to explore ways to inform employers 

and employees of their compliance 

obligations at little or no cost. OSHA 

notes that this final rule will not result 

in any cost to employers because it is 

deleting references to consensus and 

industry standards. In addition, all 

national consensus and industry 

standards which are incorporated by 

reference in the OSHA standards are 

available for public inspection at the 

OSHA Docket Office, OSHA’s regional 

offices, and the U.S. National Archives 

and Records Administration. 

The IBT encouraged OSHA to ensure 

that the national consensus and 

industry standards OSHA considers 

adopting in its regulations were 

developed in a fair and participatory 

manner. (Ex. 4–2). The Agency believes 

that the rulemaking process will address 

the IBT’s concerns. When OSHA 

attempts a substantive update to its 

regulations, it will provide an 

opportunity for notice and comment. 

OSHA will only use direct final 

rulemaking or technical amendments for 

non-controversial updates, and will rely 

on notice and comment rulemaking for 

controversial or potentially 

controversial updates and those which 

involve substantive changes. Moreover, 

if a direct final rule results in significant 

adverse comment, OSHA will withdraw 

the direct final rule and proceed with 

notice and comment rulemaking. 

Consequently, stakeholders will always 

have an opportunity to share with 

OSHA concerns about the standards 

development process. 

OSHA received one comment 

opposed to the Agency’s underlying 

approach to this rulemaking. The U.S. 

Chamber of Commerce (Chamber) stated 

that ‘‘because the kind of changes 

announced by OSHA can affect the 

compliance options available to 

employers, they can represent 

substantive changes with potentially 

significant impact,’’ and is therefore 

ordinarily inappropriate for direct final 

rulemaking. (Ex. 3–1). The Chamber also 

recommended that OSHA retain the 

current references at issue in this final 

rule as compliance options. (Ex. 3–1). 

While OSHA appreciates the 

Chamber’s concerns, in this instance 

OSHA believes that retaining these 

extremely outdated references as 

compliance options will only confuse 

employers and employees. As the 

NLBMDA said, ‘‘Updating or removing 

references to outdated national 

consensus standards is the correct 

course of action to make the regulations 

more understandable and consistent. 

The referencing of old or discontinued 

consensus standards creates confusion, 

misinterpretation, and ultimately leads 

to poor compliance.’’ (Ex. 4–4). 

The need to remove references to out 

of date consensus standards is 

particularly acute with regard to 

extremely outdated standards, such as 

API 12A, ANSI Z4.2–1942, and ANSI 

D8.1–1967. These standards are so 

outdated that they were withdrawn by 

their issuing SDOs 20 to 30 years ago 

and never replaced. Some of the 

consensus standards revoked in this 

rule are not even available through the 

issuing SDO. OSHA does not want to 

encourage the design or construction of 

equipment to comply with standards 

that do not reflect current technology 

and thus may not set an appropriate 

level of safety. In future phases of the 

update project, it may be appropriate to 

continue to reference older standards for 

certain maintenance and use 

specifications. However, OSHA 

maintains that it will rarely be 

appropriate to retain as compliance 

options standards issued 40 or 50 years 

ago to guide the design and construction 

of today’s equipment. 

Furthermore, OSHA does not agree 

with the Chamber that this action is not 

appropriate for direct final rulemaking. 

Several of the standards at issue in this 

rulemaking are unenforceable because 

they use advisory ‘‘should’’ language. 

Some of the standards have been 

withdrawn by the issuing SDO and not 

replaced, or are no longer available to 

the public through the issuing SDO. 

None of the standards reflect current 

technology. Deletion of these references 

neither restricts meaningful compliance 

options for employers nor reduces 

employee protections. In such 

situations, direct final rulemaking is an 

appropriate course of action for the 

Agency to pursue to update its 

standards. 

The IBT made a suggestion regarding 

OSHA’s removal of ANSI Z4.2–1942, 

the standard for drinking fountains, 

from OSHA’s standard for temporary 

labor camps, 29 CFR 1910.142. (Ex. 4–

2). IBT stated that in the absence of an 

OSHA, industry, or consensus standard 

that governs the construction of 

drinking fountains, and to avoid the use 

of hoses or alternative devices for 

drinking, it ‘‘might be helpful if OSHA 

would include’’ in the standard a 

definition of what constitutes a 

‘‘drinking fountain.’’

OSHA appreciates the IBT’s 

suggestion, but believes including a 

definition of what constitutes a drinking 

fountain is beyond the scope of this 

rulemaking. The Agency, however, may 

re-examine the need to provide 

definitions of this and other terms in 

future rulemakings. OSHA reiterates 

that revoking the reference to ANSI 

Z4.2–1942 will not adversely affect the 

safety and health of employees at 

temporary labor camps. As explained 

above, ANSI Z4.2–1942 uses advisory 

‘‘should’’ language and thus contains no 

compliance obligations. See 49 FR 5318, 

February 10, 1984; cf. Marshall, 584 

F.2d at 643–644. Further, referencing a 

60-year-old ANSI standard for drinking 

fountains that reflects outdated 

engineering practices and technology 

does not enhance employee safety. 

Finally, OSHA notes that other 

provisions in its temporary labor camp 

standard, including 29 CFR 

1910.142(c)(1), (c)(2), and (c)(3), as well 

as other OSHA standards, offer 

additional protection for workers in 

temporary labor camps. 

IBT also stated that it supported 

OSHA’s revocation of ANSI B71.1–1968, 

safety specifications for power 

lawnmowers, so long as OSHA 

thoroughly reviewed ANSI B71.1–1998 

and determined that it does not contain 

provisions that would serve to improve 

the existing OSHA standard, 29 CFR 

1910.243. OSHA assures IBT that it has 

conducted a thorough review of ANSI 

B71.1–1998, and, for reasons discussed 

above, determined that referencing it 

would not improve the existing OSHA 

standard. 69 FR 68706, 68712. 

53928 Federal Register / Vol. 70, No. 176 / Tuesday, September 13, 2005 / Rules and Regulations 

Legal Considerations 

The purpose of the Occupational 

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

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

possible every working man and woman 

in the nation safe and healthful working 

conditions and to preserve our human 

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

this goal Congress authorized the 

Secretary of Labor to promulgate and 

enforce occupational safety and health 

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

safety or health standard is a standard 

‘‘which requires conditions, or the 

adoption or use of one or more 

practices, means, methods, operations, 

or processes, reasonably necessary or 

appropriate to provide safe or healthful 

employment or places of employment.’’

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

reasonably necessary or appropriate 

within the meaning of Section 652(8) if, 

among other things, a significant risk of 

material harm exists in the workplace 

and the proposed standard would 

substantially reduce or eliminate that 

workplace risk. 

This final rule will not reduce the 

employee protections put into place by 

the standards being revised. The intent 

of this final rule is to revoke references 

to consensus standards that are 

outdated, no longer represent the state 

of the art in workplace safety, and are 

confusing to employers and employees. 

It is therefore unnecessary to determine 

significant risk, or the extent to which 

the final rule would reduce that risk, as 

would typically be required by 

Industrial Union Department, AFL–CIO 

v. American Petroleum Institute, 448 

U.S. 607 (1980). 

Final Economic Analysis and 

Regulatory Flexibility Act Certification 

This rule is not economically 

significant within the context of 

Executive Order 12866, or a ‘‘major 

rule’’ under the Unfunded Mandates 

Reform Act or Section 801 of the Small 

Business Regulatory Enforcement 

Fairness Act. The rule would impose no 

additional costs on any private or public 

sector entity, and does not meet any of 

the criteria for an economically 

significant or major rule specified by the 

Executive Order or relevant statutes. 

The rule simply deletes or revises a 

number of provisions in OSHA 

standards that are outdated. The Agency 

concludes that the final rule would not 

impose any additional costs on these 

employers. Consequently, the rule 

requires no final economic analysis. 

Furthermore, because the rule imposes 

no costs on employers, OSHA certifies 

that it would not have a significant 

impact on a substantial number of small 

entities. Accordingly, the Agency need 

not prepare a final regulatory flexibility 

analysis under the Regulatory 

Flexibility Act, 5 U.S.C. 601 et seq. 

Paperwork Reduction Act 

This rule does not impose or remove 

any information collection requirements 

for purposes of the Paperwork 

Reduction Act of 1995, 44 U.S.C. 3501–

30. 

Federalism 

OSHA has reviewed this final rule in 

accordance with the Executive Order on 

Federalism (E.O. 13132, 64 FR 43255, 

August 10, 1999), which requires that 

agencies, to the extent possible, refrain 

from limiting State policy options, 

consult with States prior to taking any 

actions that would restrict State policy 

options, and take such actions only 

when there is clear constitutional 

authority and the presence of a problem 

of national scope. E.O. 13132 provides 

for preemption of State law only if there 

is a clear congressional intent for the 

Agency to do so. Any such preemption 

is to be limited to the extent possible. 

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

651 et seq., expresses Congress’ intent to 

preempt State laws where OSHA has 

promulgated occupational safety and 

health standards. Under the OSH Act, a 

State can avoid preemption on issues 

covered by Federal standards only if it 

submits, and obtains Federal approval 

of, a plan for the development of such 

standards and their enforcement. 29 

U.S.C. 667. Occupational safety and 

health standards developed by such 

States with State Plans must, among 

other things, be at least as effective in 

providing safe and healthful 

employment and places of employment 

as the Federal standards. Subject to 

these requirements, States with State 

Plans are free to develop and enforce 

their own requirements for safety and 

health standards under State law. 

This final rule complies with E.O. 

13132. As Congress has expressed a 

clear intent for OSHA standards to 

preempt State job safety and health 

rules in areas addressed by OSHA 

standards in States without OSHAapproved State Plans, this rule limits 

State policy options in the same manner 

as all OSHA standards. In States with 

OSHA-approved State Plans, this action 

does not significantly limit State policy 

options. 

State Plans 

When Federal OSHA promulgates a 

new standard or more stringent 

amendment to an existing standard, the 

26 States or U.S. Territories with their 

own OSHA-approved occupational 

safety and health plans must revise their 

standards to reflect the new standard or 

amendment, or show OSHA why there 

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

existing State standard covering this 

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

the new Federal standard or 

amendment. 29 CFR 1953.5(a). The 

State standard must be at least as 

effective as the final Federal rule, must 

be applicable to both the private and 

public (State and local government 

employees) sectors, and must be 

completed within six months of the 

publication date of the final Federal 

rule. When OSHA promulgates a new 

standard or standards amendment 

which does not impose additional or 

more stringent requirements than an 

existing standard, States are not 

required to revise their standards, 

although OSHA may encourage them to 

do so. The 26 States and territories with 

OSHA-approved State Plans are: Alaska, 

Arizona, California, Connecticut (plan 

covers only State and local government 

employees), Hawaii, Indiana, Iowa, 

Kentucky, Maryland, Michigan, 

Minnesota, Nevada, New Mexico, New 

Jersey (plan covers only State and local 

government employees), New York 

(plan covers only State and local 

government employees), North Carolina, 

Oregon, Puerto Rico, South Carolina, 

Tennessee, Utah, Vermont, Virginia, 

Virgin Islands (plan covers only State 

and local government employees), 

Washington, and Wyoming. 

Unfunded Mandates Reform Act 

This final rule has been reviewed in 

accordance with the Unfunded 

Mandates Reform Act of 1995 (UMRA), 

2 U.S.C. 1501 et seq. For the purposes 

of the UMRA, the Agency certifies that 

this final rule does not impose any 

Federal mandate that may result in 

increased expenditures by State, local, 

or tribal governments, or increased 

expenditures by the private sector, of 

more than $100 million in any year. 

List of Subjects in 29 CFR Part 1910 

Consensus standards, Incorporation 

by reference, Occupational safety and 

health. 

Authority and Signature 

This document was prepared under 

the direction of Mr. Jonathan L. Snare, 

Deputy Assistant Secretary of Labor for 

Occupational Safety and Health, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Washington, DC 20210. It 

is issued pursuant to sections 4, 6, and 

8 of the Occupational Safety and Health 

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

Secretary of Labor’s Order 5–2002 (67 

FR 65008), and 29 CFR part 1911. 

Federal Register / Vol. 70, No. 176 / Tuesday, September 13, 2005 / Rules and Regulations 53929 

Signed at Washington, DC this 31st day of 

August, 2005. 

Jonathan L. Snare, 

Deputy Assistant Secretary of Labor. 

Amendments to Standards 

■ Part 1910 of Title 29 of the Code of 

Federal Regulations is hereby amended 

as set forth below: 

PART 1910—OCCUPATIONAL SAFETY 

AND HEALTH STANDARDS 

Subpart A—General 

■ 1. The authority citation for subpart A 

of part 1910 is revised to read as 

follows: 

Authority: Secs. 4, 6, 8, Occupational 

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

655, 657); Secretary of Labor’s Order 

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

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

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

65008), as applicable. 

Sections 1910.7 and 1910.8 also issued 

under 29 CFR part 1911. Section 1910.7(f) 

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

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

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

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

§ 1910.6 [Amended] 

■ 2. Section 1910.6 is amended by 

removing and reserving paragraphs 

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

Subpart H—Hazardous Materials 

■ 3. The authority citation for subpart H 

of part 1910 is revised to read as 

follows: 

Authority: Sections 4, 6, and 8 of the 

Occupational Safety and Health Act of 1970 

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

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

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

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

50017), or 5–2002 (67 FR 65008), as 

applicable; and 29 CFR part 1911. 

Sections 1910.103, 1910.106 through 

1910.111, and 1910.119, 1910.120, and 

1910.122 through 126 also issued under 29 

CFR part 1911. 

Section 1910.119 also issued under section 

304, Clean Air Act Amendments of 1990 

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

Note. 

Section 1910.120 also issued under section 

126, Superfund Amendments and 

Reauthorization Act of 1986 as amended (29 

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

■ 4. Paragraph (b)(1)(iii)(a)(2) of 

§ 1910.106 is revised to read as follows: 

§ 1910.106 Flammable and combustible 

liquids. 

* * * * * 

(b) * * * 

(1) * * * 

(iii) * * * 

(a) * * * 

(2) American Petroleum Institute 

Standards No. 650, Welded Steel Tanks 

for Oil Storage, Third Edition, 1966. 

* * * * * 

Subpart J—General Environmental 

Controls 

■ 5. The authority citation for subpart J 

of part 1910 is revised to read as 

follows: 

Authority: Secs. 4, 6, and 8, Occupational 

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

655, 657); Secretary of Labor’s Order No. 12–

71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 

(48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 

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

FR 65008), as applicable. 

Sections 1910.141, 1910.142, 1910.145, 

1910.146, and 1910.147 also issued under 29 

CFR part 1911. 

■ 6. Paragraph (c)(4) of § 1910.142 is 

revised to read as follows: 

§ 1910.142 Temporary labor camps. 

* * * * * 

(c) * * * 

(4) Where water under pressure is 

available, one or more drinking 

fountains shall be provided for each 100 

occupants or fraction thereof. Common 

drinking cups are prohibited. 

* * * * * 

Subpart P—Hand and Portable 

Powered Tools and Other Hand-Held 

Equipment 

■ 7. The authority citation for subpart P 

of part 1910 is revised to read as 

follows: 

Authority: Sections 4, 6, and 8 of the 

Occupational Safety and Health Act of 1970 

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

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

25059), 9–83 (48 FR 35736),–90 (55 FR 9033), 

or 5–2002 (67 FR 65008), as applicable; 29 

CFR part 1911. 

Section 1910.243 also issued under 29 CFR 

part 1910. 

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

revised to read as follows: 

§ 1910.243 Guarding of portable powered 

tools. 

* * * * * 

(e) * * * 

(1) * * * 

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

lawnmowers shall be guarded in 

accordance with the machine guarding 

requirements in 29 CFR 1910.212, 

General requirements for all machines. 

* * * * * 

Subpart Q—Welding, Cutting and 

Brazing 

■ 9. The authority citation for subpart Q 

of part 1910 is revised to read as 

follows: 

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

Occupational Safety and Health Act of 1970 

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

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

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

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

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

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

revised to read as follows: 

§ 1910.254 Arc welding and cutting. 

* * * * * 

(d) * * * 

(1) General. Workers assigned to 

operate or maintain arc welding 

equipment shall be acquainted with the 

requirements of this section and with 

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

* * * * * 

Subpart R—Special Industries 

■ 11. The authority citation for subpart 

R of part 1910 is revised to read as 

follows: 

Authority: Sections 4, 6, and 8 of the 

Occupational Safety and Health Act of 1970 

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

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

25059), 9–83 (48 FR 35736), 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. 

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

is revised to read as follows: 

§ 1910.265 Sawmills. 

* * * * * 

(c) * * * 

(31) * * * 

(i) Hazardous crossings. Railroad 

tracks and other hazardous crossings 

shall be plainly posted. 

* * * * * 

[FR Doc. 05–17688 Filed 9–12–05; 8:45 am] 

BILLING CODE 4510–26–P