[Federal Register: December 21, 2006 (Volume 71, Number 245)][Proposed Rules]
[Page 76623-76630]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21de06-15]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1910, 1915, 1917, 1918, 1919 and 1926
[Docket No. S-778B]
RIN 1218-AC19
Standards Improvement Project, Phase III
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Advance Notice of Proposed Rulemaking (ANPRM).
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SUMMARY: OSHA routinely conducts reviews of its existing safety and
health standards to improve and update them. As part of this ongoing
process, OSHA is issuing this ANPRM to initiate Phase III of the
Standards Improvement Project (SIPs III). SIPs III is the third in a
series of rulemaking actions intended to improve and streamline OSHA
standards by removing or revising individual requirements within rules
that are confusing, outdated, duplicative, or inconsistent. These
revisions maintain or enhance employees' safety and health, while
reducing regulatory burdens where possible.
OSHA has already identified a number of provisions that are
potential candidates for inclusion in SIPs III. These candidates
include recommendations received from the public in other rulemakings.
The purpose of this notice is to invite comment on these
recommendations, as well as provide an opportunity for commenters to
suggest other candidates that might be appropriate for inclusion in
this rulemaking. OSHA will use the information received in response to
this notice to help determine the scope of SIPs III.
DATES: Comments must be submitted by the following dates:
Hardcopy: Your comments must be submitted (postmarked or sent) by
February 20, 2007.
Facsimile and electronic transmission: Your comments must be sent
by February 20, 2007.
ADDRESSES: You may submit comments and additional material, identified
by OSHA Docket No. S-778B, by any of the following methods:
Electronically: You may submit comments, and attachments
electronically via the Federal eRulemaking Portal at http://www.regulations.gov.
Follow the instructions online for making electronic submissions.
Facsimile (FAX): If your comments, including any attachments, are
10 pages or fewer, you may fax them to the OSHA Docket Office at (202)
693-1648.
Mail, hand delivery, express mail, and messenger or courier
service: You must submit three copies of your comments and attachments
to the OSHA Docket Office, Docket No. S-778B, 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).
OSHA Docket Office and Department of Labor hours of operations are 8:15
a.m. to 4:45 p.m., e.t.
Instructions: All submissions received must include the Agency name
and OSHA docket number (S-778B) for this rulemaking. Submissions,
including any personal information you provide, are placed in the
public docket without change and may be made available online at http://www.regulations.gov.
For further information on submitting comments plus 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 or download submissions,
comments, or other material, go to http://www.regulations.gov, or the
OSHA Docket Office at the address above. All documents in the docket
are listed in the http://www.regulations.gov index, however, some
information (e.g., copyrighted material) is not publicly available to
read or download through the Web site. All submissions, including
copyrighted material, are available for inspection and copying at the
OSHA Docket Office.
FOR FURTHER INFORMATION CONTACT: Press inquiries: Kevin Ropp, OSHA
Office of Communications, Room N-3647, U.S. Department of Labor, 200
Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 693-
1999. General and technical information: Michael Seymour, Office of
Physical Hazards, OSHA Directorate of Standards and Guidance, Room N-
3718, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210; telephone: (202) 693-1950.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Request for Information, Data, and Comments
A. Compliance with NFPA 101-2000, Life Safety Codes (Sec.
1910.35)
B. Subpart H--Hazardous Materials--Flammable and Combustible
Liquids (Sec. 1910.106) and Spray Finishing Using Flammable and
Combustible Materials (Sec. 1910.107)
C. Subpart I--Personal Protective Equipment (Sec. 1910.132 and
Sec. 1915.152)
D. Respiratory Protection (Sec. 1910.134)
E. Subpart J--General Environmental Controls--Sanitation
Standard (Sec. 1910.141)
F. Carcinogens (4-Nitrobiphenyl, etc.) (Sec. 1910.1003)
G. Lead (Sec. 1910.1025 and Sec. 1926.62)
H. 1,3-Butadiene (Sec. 1910.1051)
I. Asbestos (Sec. 1915.1001)
J. General Modifications to Medical Examinations and Industrial
Hygiene Sampling Provisions
K. General Modifications to Training Provisions
L. Miscellaneous Items Under Consideration
M. General Solicitation for Recommendations
III. Public Participation
IV. Authority and Signature
I. Background
OSHA wants to improve confusing, outdated, duplicative, or
inconsistent requirements in its standards. Improving OSHA standards
will help employers better understand their obligations, which will
lead to increased compliance, ensure greater safety and health for
employees, and reduce compliance costs. In addition, this action will
allow OSHA to recognize newer and more flexible ways of achieving the
intent of the standards.
OSHA's effort to improve standards began in the 1970s, not long
after the first set of standards was issued. In 1973, OSHA issued
proposals to clarify and update rules that had originally been adopted
by the Agency as ``initial'' standards. In 1978, OSHA published the
Selected General and Special (Cooperage and Laundry Machinery, and
Bakery Equipment) Industry Safety and Health Standards: Revocation (43
FR 9831). Commonly known as the Standards Deletion Project, this was a
comprehensive final rule revoking hundreds of unnecessary and
duplicative requirements in the General Industry Standards (part 1910).
Another rulemaking in 1984 titled the Revocation of Advisory and
Repetitive Standards (49 FR 5318) resulted in the removal of many
repetitive and unenforceable requirements. These rulemaking actions
were primarily directed at removing standards that were: (1) Not
relevant to employee safety; that is, the standards addressed public
safety issues; (2) duplicative of other standards found elsewhere in
the general industry standards; (3) otherwise considered a ``nuisance''
standard; that is, one having no merit or employee safety and health
benefits; or (4) unenforceable due to legal considerations.
In 1996, in response to a Presidential Memorandum on Improving
Government Regulations, OSHA began another series of rulemaking
improvement actions. Patterned after the earlier rulemaking actions,
the new effort was designed to identify and then revise or eliminate
standards that were confusing, outdated, duplicative, or inconsistent.
This effort also included standards that could be rewritten in plain
language. In the first action, Miscellaneous Changes to General
Industry and Construction Standards (61 FR 37849), otherwise known as
the Standards Improvement Project (SIPs I), OSHA focused on revising
standards that were out of date, duplicative, or inconsistent.
The final rule on SIPs I was published on June 18, 1998 (63 FR
33450). Changes made in SIPs I included reducing the frequency of a
medical testing requirement and eliminating an unnecessary or obsolete
medical test required in both the coke oven and inorganic arsenic
standards; changing the emergency-response provisions of the vinyl
chloride standard; eliminating the public safety provisions of the
temporary labor camp standard; and eliminating unnecessary cross-
references in the textile industry standards. All of these improvements
were made without reducing employee safety and health protection.
In 2002, OSHA published a proposed rule for Phase II of the
Standards Improvement Project (SIPs II) (67 FR 66494). In that notice,
OSHA proposed to revise a number of provisions in health and safety
standards that had been identified by commenters during SIPs I or that
the Agency had identified as standards in need of improvement.
In the final rule on SIPs II, published on January 5, 2005 (70 FR
1111), the Agency revised a number of health standards to reduce
regulatory burden, facilitate compliance, and eliminate unnecessary
paperwork without reducing health protections. The improvements made by
SIPs II addressed issues such as employee notification of the use of
chemicals in the workplace, frequency of exposure monitoring, and
medical surveillance.
In addition to the SIPs initiatives, OSHA has a related but
separate rulemaking process, the Consensus Update Project initiated on
November 24, 2004 (69 FR 68283), to update OSHA standards that are
based on, or reference national consensus standards. Many of OSHA's
rules were adopted under a two-year statutory authority that allowed
the new Agency to incorporate existing national consensus standards
into its body of regulations without notice and comment rulemaking.
National consensus standards are generally updated on a regular cycle,
and thus the rules initially adopted by OSHA are often out-of-date. To
update these rules based on the updated consensus standards requires
rulemaking. OSHA is using a number of different rulemaking approaches
to update as many of these rules as possible.
The rules that are addressed in SIPs rulemakings are not simply
consensus standards updates. Some of the suggestions that were received
in previous SIPs rulemakings are currently being addressed in either
specific rulemaking projects for updating of the rule involved (e.g., a
complete revision of the explosives standard is currently on the
regulatory agenda), or will be addressed in the consensus standards
update process. Therefore, it is likely that any comments or
suggestions related exclusively to consensus standards that are
submitted in response to this request will be considered under the
consensus standards update project rather than the SIPs rulemaking.
OSHA has identified numerous standards as potential candidates for
improvement in SIPs III based on the Agency's review of its standards,
suggestions and comments from the public, or recommendations from the
Office of Management and Budget (OMB). The OMB recommendations were
based on comments they received on Regulatory Reform of the U.S.
Manufacturing Sector (2005).\1\ Many commenters during the SIPs II
rulemaking process applauded the SIPs process and OSHA for its
``efforts to streamline and improve its health standards by removing or
revising requirements that are outdated, duplicative, or inconsistent''
(Ex. 3-5, 3-10, 3-11, and 3-13 to Docket S-778A).
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\1\ To view the full Regulatory Reform report, please visit:
http://www.whitehouse.gov/omb/inforeg/reports/manufacturing_initiative.pdf.
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Because the Agency has identified numerous candidate standards for
improvement and stakeholders have encouraged the Agency to continue
this effort, OSHA has determined to proceed with Phase III of SIPs. As
already noted, SIPs III will proceed at the same time that the Agency
updates consensus standards in a separate project. In SIPs III, OSHA's
objective is to modify individual provisions of standards by removing
or revising requirements of standards that are confusing, outdated,
duplicative, or inconsistent without reducing employees' safety and
health or imposing any additional economic burden. As in the earlier
rulemakings, the Agency seeks help from the public to identify
standards that are in need of improvement based on this objective.
While commenters may suggest extensive changes or major reorganization
of some standards, suggestions that require a large-scale revision of a
standard may not be appropriate for this rulemaking. The Agency will
determine whether such large-scale changes are addressed in SIPs III,
in the Consensus Update Project, or in a future rulemaking dedicated to
the specific issues raised by commenters.
II. Request for Information, Data, and Comments
OSHA requests the public to identify standards that are in need of
improvement because they are confusing, outdated, duplicative, or
inconsistent. In addition, the agency is considering the following
changes in SIPs III. When commenting on the issues below, OSHA requests
that you reference the issue number, explain your rationale, and
provide, if possible, data and information to support your comments.
A. Compliance with NFPA 101-2000, Life Safety Codes (Sec. 1910.35)
On May 19, 2004, OSHA received a petition from the International
Code Council (ICC) to revise Subpart E--Exit Routes. This standards
development organization proposed that OSHA consider allowing employers
to demonstrate compliance with the egress provisions of Subpart E by
following its International Building Code (IBC) and International Fire
Code (IFC), just as OSHA currently permits employers to demonstrate
compliance by following the egress provisions of the National Fire
Protection Association (NFPA) 101, Life Safety Code (2000 edition). The
IBC and IFC are not currently referenced by OSHA.
The preamble to OSHA's 2002 plain language update of Subpart E (67
FR 67949-67965) explains that OSHA declined to extend recognition to
the building codes \2\ at that time because there were three different
model building codes used in the country. That situation has changed
significantly. First, the three former building codes have evolved into
a single code, the IBC. Secondly, OSHA has made a preliminary
determination that the egress provisions of the IBC and IFC, when
applied together, offer employee protection equal to the Subpart E
provisions.
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\2\ Uniform, Southern, and BOCA Building Codes.
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Some jurisdictions in the country adopt the ICC codes for building
construction and fire prevention purposes, while NFPA codes are used in
other jurisdictions. OSHA believes employees, employers, the building
industry, and code officials may all benefit from OSHA allowing either
alternative. Therefore, OSHA is considering the recognition of the
combined egress provisions of the IBC and IFC as an alternative
equivalent to Subpart E.
1. Do the combined egress provisions of the IBC and IFC offer
equivalent protection to OSHA's Subpart E?
2. Are there other alternative national building codes that OSHA
should consider?
3. Would allowing the use of the IBC and IFC as an equivalent to
Subpart E help employers reduce cost?
B. Subpart H--Hazardous Materials--Flammable and Combustible Liquids
(Sec. 1910.106) and Spray Finishing Using Flammable or Combustible
Materials (Sec. 1910.107)
On December 1, 2001, the National Marine Manufacturers Association
petitioned OSHA to update Sec. 1910.107 to reference portions of the
1995 edition of NFPA 33-Standard for Spray Application Using Flammable
or Combustible Materials. This edition of NFPA 33 was the first to
include a composites manufacturing chapter. This chapter includes less
stringent provisions than previous editions of NFPA 33 that formed the
basis for Sec. 1910.107. These less stringent 1995 provisions presumed
a lower degree of hazard in the process of composites spraying.
Subsequently, OSHA staff witnessed field tests at the request of the
industry to demonstrate the hazard level; these tests were
inconclusive.
OSHA received a second petition on August 17, 2004, from the
American Composite Manufacturers Association (ACMA). ACMA petitioned
OSHA to adopt certain sections of the ``current'' versions of NFPA 33
as well as NFPA 30--Flammable and Combustible Liquids Code. At that
time, the current versions of those NFPA standards were the 2003
editions. NFPA 33 retained the specific provisions for composites
spraying through its 2003 edition. ACMA noted in their petition, that
the newer NFPA standards ``* * * reflect significant advances in
understanding the hazards presented by many of the covered
operations.'' They further noted ``* * * NFPA 33 now contains fire
protection standards specifically designed for composites manufacturing
operations which recognize the inherently lower degree of hazard
inherent in these operations.''
On June 17, 2004, ACMA testified on this issue to the Subcommittee
on Regulatory Reform and Oversight of the Small Business Committee,
U.S. House of Representatives. Additionally, the National Association
of Manufacturers and the National Marine Manufacturers Association
subsequently submitted a reform nomination \3\ to OMB. Both the
testimony and the reform nomination requested recognition of the more
``current'' NFPA 33 provisions, but did not request recognition of NFPA
30. The 2003 editions of NFPA 30 and 33 remain the most current,
however, NFPA is in the process of revising both these standards, with
the next anticipated editions being 2007.
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\3\ In OMB's draft 2004 Report to Congress on the Costs and
Benefits of Federal Regulation, OMB requested public nominations of
specific regulations, guidance documents and paperwork requirements
that, if reformed, could result in lower costs, greater
effectiveness, enhanced competitiveness, more regulatory certainty
and increased flexibility. See Reference Number 153 addressing
flammable liquids in the Regulatory Reform report at: http://www.whitehouse.gov/omb/inforeg/reports/manufacturing_initiative.pdf.
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OSHA is considering whether or not NFPA 30 and NFPA 33 are
equivalent to the existing provisions in Sec. 1910.106 and Sec.
1910.107. As mentioned above, OSHA had attended a presentation to
demonstrate that the new NFPA provisions were equivalent, however the
demonstration did not prove to be conclusive. In addition, there is a
lack of data that OSHA can rely on to draw conclusions. With this, OSHA
cannot conclude at this time that NFPA 30 and NFPA 33 provide
protection for employees equivalent to Sec. 1910.106 and Sec.
1910.107. OSHA hopes that commenters can provide data to help
the Agency determine what course of action to take.
As mentioned above, OSHA intends to update its standards that
reference outdated consensus standards. As part of that process, it is
anticipated that Sec. 1910.106 and Sec. 1910.107 will be updated in
their entirety sometime in the future. In this ANPRM, however, OSHA is
exploring the idea of amending Sec. 1910.106 and Sec. 1910.107, at
this time, to allow employers to comply with the 2003 editions of NFPA
30 and 33 until the more extensive revision is completed. Making this
change now, as part of the SIPs III effort, would allow employers
engaged in composites manufacturing operations to follow the newer
provisions of the NFPA 33. However, the Agency is concerned that the
new NFPA 33 may not provide employee protection equivalent to the
existing standard. OSHA believes additional information regarding the
equivalency of the employee protection afforded by the newer
requirements for composite spraying is needed. While OSHA's de minimis
policy would allow employers to comply with the more current versions
of consensus standards applicable to their work, employers must be able
to demonstrate that complying with the consensus standard is as
protective as following the OSHA standard. In the case of composite
sprayings, ACMA noted that they were aware of the de minimis policy but
that, in their experience, they have had problems demonstrating that
the newer standard provides equivalent protection. ACMA stated that ``*
* * some of our member companies have been able to successfully appeal
citations to OSHA supervisors, but such appeals are time consuming and
expensive, and are often intimidating to small business owners'' [ACMA
2004 petition]. Updating the OSHA standard to reference the newer NFPA
standards would eliminate any confusion or inconsistency as to the
employer's obligation. OSHA is particularly interested in comment on
the following:
4. Are the provisions in the 2003 edition of NFPA 30 as protective
or more protective of employees' safety and health than the equivalent
provisions in Sec. 1910.106? Should OSHA revise Sec. 1910.106 to be
consistent with these provisions? Please submit specific available
information or data supporting your comments.
5. Are the provisions in the 2003 edition of NFPA 33 as protective
or more protective of employees' safety and health than the equivalent
provisions in Sec. 1910.107? Should OSHA revise Sec. 1910.107 to be
more consistent with these provisions? Please submit specific available
information or data supporting your comments.
C. Subpart I--Personal Protective Equipment--General Requirements
(Sec. 1910.132 and Sec. 1915.152)
In 1994, OSHA revised the general industry safety standards
regarding personal protective equipment (PPE) ``to be more consistent
with the current consensus regarding good industry practices, as
reflected by the latest editions of the pertinent American National
Standards Institute (ANSI) standards'' (59 FR 16334). The revision
includes a requirement for employers to perform a hazard assessment
that would provide the information necessary for the employer to select
the appropriate PPE for employees and to verify compliance by way of a
written certification. As part of this revision the Agency added
paragraphs Sec. 1910.132(d), (e), and (f) as well as non-mandatory
appendices A and B to Subpart I--Personal Protective Equipment.
Appendix A contains a list of references and is provided for
information purposes. Appendix B--Guidelines for Hazard Assessment and
Personal Protective Equipment Selection was added to the subpart to
provide specific guidance to employers and employees regarding eye,
face, head, foot, and hand hazards.
In the final rule, OSHA determined that it was not necessary for
employers to prepare and retain a formal written hazard assessment.
However, in order to verify compliance the employer is required to
prepare a written certification that would include the following: The
person certifying that the evaluation had been performed; the dates of
the hazard assessment; and a statement identifying the document as the
certification of the hazard assessment required by the standard.
The ship repair, shipbuilding, and shipbreaking (i.e. shipyards)
standard requires a similar hazard assessment. The final rule for
Shipyards Sec. 1915.152, published in 1996 (61 FR 26321), revised the
PPE section requiring employers to do a hazard assessment, equipment
(PPE) selection, and to verify the required assessment through a
``document,'' rather than a certification as required for general
industry employees in Sec. 1910.132. The document must contain the
date of the hazard assessment and the name of the person performing the
hazard assessment. The comments from the Shipyard industry argued
against a written certification, stating that it would create a burden.
OSHA agreed and changed the word from ``certification'' to
``document'', which OSHA judged to be an equally effective way to
verify compliance.
OSHA is concerned that the hazard assessment provisions in Sec.
1910.132(d) and Sec. 1915.152 lack specific documentation of the
hazard assessment required to be performed by the employer, and are
thus not sufficiently protective of employees' safety and health.
Currently, employers in both industries are not required to document or
post the results of the hazard assessment. Employers are only required
to include the name of the person certifying, the date(s) of the hazard
assessment, and in the General Industry standard Sec. 1910.132, a
statement that the document is a certification that the hazard
assessment has been performed.
The Agency is interested in making the hazard assessment process
more effective. One method the Agency is considering is to require
employers to include the results of the hazard assessment (the hazards
identified and the PPE needed to address those hazards) in a
certification and to post the certification for review by employees.
Another method being considered to increase effectiveness of the hazard
assessment in Sec. 1910.132 and Sec. 1915.152 is to revise the
respective Appendices and make them mandatory, adding a requirement to
post the results of the assessment.
OSHA believes that all industries could benefit from doing a hazard
assessment and in the interest of making rules consistent across all
industries, we have included some questions on Construction (part
1926), Marine Terminals (part 1917), and Longshoring (part 1918)
standards where there is no explicit requirement for a written PPE
hazard assessment. There may be ways to revise these standards, such as
a performance-based assessment, that are both feasible and not overly
burdensome. OSHA is seeking answers to these questions and suggestions
for effective alternatives.
OSHA is seeking comments on other options that the Agency should
consider that would assure that employers conduct thorough hazard
assessments and select the appropriate equipment to protect employees.
6. OSHA has identified posting requirements in many other standards
to ensure employee notification. Are there other methods to inform
employees of the hazard assessment results, such as additional training
to inform employees of the findings, that are equally as effective or
more effective?
7. Would adding a posting requirement to Sec. 1910.132 and Sec.
1915.152 be more or less protective than the protection currently provided?
Please provide any rationale or data to support your answer.
8. Are there other approaches to conducting hazard assessments for
PPE that are more effective than Appendix B in Sec. 1910.132 and
Appendix A in Sec. 1915.152?
9. Should similar revisions be considered for Construction (Part
1926), Marine Terminals (Part 1917), and Longshoring (Part 1918)
standards?
D. Respiratory Protection (Sec. 1910.134)
Paragraph (o)(2) of this standard states ``Appendix D of this
section is non-mandatory;'' however, paragraph (k)(6) of the standard
specifies that the ``basic advisory information on respirators, as
presented in Appendix D of this section, shall be provided by the
employer * * * to employees who wear respirators when such use is not
required by this section or by the employer''. [Emphasis added.] The
phrase ``shall be provided'' in paragraph (k)(6) mandates the employer
to provide the ``basic advisory information'' in the appendix to the
designated employees. Appendix D is also marked as ``Mandatory'' in the
standard. Therefore, OSHA is considering removing paragraph (o)(2) from
the standard and revising the preceding paragraph (o)(1) to include
Appendix D among the list of mandatory appendices, which was OSHA's
original intent.
10. Have employers understood that the requirement to provide
Appendix D information to employees who voluntarily use respirators is
a mandatory requirement?
11. Is the information contained in Appendix D appropriate for
alerting employees to considerations related to voluntary respirator
use?
12. To what extent, if any, would deleting paragraph (o)(2) and
clarifying that Appendix D is mandatory increase the burden on
employers?
E. Subpart J--General Environmental Controls--Sanitation Standard
(Sec. 1910.141)
The definition of potable drinking water in OSHA's current
sanitation standard, Sec. 1910.141, makes reference to U.S. Public
Health Service Drinking Water Standards published in 42 CFR part 72.
There are other agencies that have provisions relating to safe drinking
water, such as the Food and Drug Administration (FDA) at Title 21 of
the CFR, referring to the Environmental Protection Agency (EPA) at
Title 40, specifically the Office of Water.
13. What is the appropriate updated reference that would provide an
adequate definition for potable water? Are there other references or
definitions for drinking water from other agencies or authoritative
sources that OSHA should consider?
14. Are there other instances where a citation to another Federal
Standard referenced in an OSHA standard is no longer correct?
F. Carcinogens (4-Nitrobiphenyl, etc.) (Sec. 1910.1003)
In 1996, OSHA consolidated 13 similar standards for regulating
carcinogenic chemicals into a single standard, Sec. 1910.1003 (See 61
FR 9228, March 7, 1996). OSHA did not intend to make substantive
changes to any of the 13 standards under that action. Where language
among the 13 standards differed, the Agency attempted to design the
regulatory text of the single rule to maintain the same substantive
requirements of each standard. Four of these 13 standards, covering
employee exposures to methyl chloromethyl ether, bis-chloromethyl
ether, ethyleneimine, and beta-propiolactone, had a provision in former
paragraph (c)(4)(iv) of each standard that provided respirator
requirements that differed from those provided in the other nine
standards. Specifically, this provision required employers to ensure
that employees involved in handling any of these four carcinogenic
chemicals wear full-facepiece, supplied-air respirators of the
continuous-flow or pressure-demand type rather than half-mask
respirators permitted under the other nine standards. The Agency
inadvertently omitted this provision from the consolidated standard,
thereby appearing to change the respirator requirement for those four
substances. That was not intended; therefore, OSHA is considering
reinstating the former respirator-use requirement in paragraph
(c)(4)(iv) of Sec. 1910.1003 for the four substances.
15. What types of respirators are currently being used to protect
employees from exposure to these four chemicals?
16. If OSHA reinstates the requirements for full-facepiece air-
supplied respirators, does the respirator-use requirement conflict with
OSHA's Respiratory Protection Standard (Sec. 1910.134)?
17. Would the reinstated respirator use requirement be more or less
protective than the protection offered by OSHA's Respiratory Protection
Standard? Please provide any data or rationale to support your answer.
18. How would reinstating the respirator use requirement change the
economic or paperwork burden?
G. Lead (Sec. 1910.1025 and Sec. 1926.62)
The Agency's substance-specific standards usually require that
employers initiate or implement protective actions, including exposure
monitoring, medical surveillance, and exposure controls, at specific
airborne concentrations of a toxic substance.
In several provisions of the lead standards (Sec. 1910.1025 and
Sec. 1926.62), the airborne concentrations at which protective actions
must occur vary slightly. A number of provisions in the lead standards
trigger actions at airborne concentrations, which are ``above the AL,''
and ``at or above the PEL.'' The terminology in the lead standards for
these airborne concentrations is inconsistent and can be confusing. For
example, Sec. 1910.1025(d)(6)(iii) currently states that ``[t]he
employer shall continue monitoring at the required frequency until at
least two consecutive measurements, taken at least 7 days apart, are
below the PEL but at or above the action level[.]'' OSHA is considering
revising this to state ``[t]he employer shall continue monitoring at
the required frequency until at least two consecutive measurements,
taken at least 7 days apart, are at or below the PEL but at or above
the action level[.]'' [Emphasis added.]
Similar issues arise with respect to the blood lead levels that
trigger medical removal protection or return to work in the lead
standards. OSHA is considering changing these terminologies in the lead
standard(s) to make these internally consistent and consistent with
each other. Table 1 describes the revisions being considered.
Table 1.--Recommended Revisions to the AL, PEL, and Numerical-Criteria Provisions of the Lead Standards
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Provision Existing language Revised language
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Sec. 1910.1025 (Lead in General
Industry):
(d)(6)(ii)............................ ``at or above the action level but ``at or above the action level but
below the permissible exposure at or below the permissible
limit''. exposure limit''
[[Page 76628]]
(d)(6)(iii)........................... ``are below the PEL but at or above ``are at or below the PEL but at or
the action level''. above the action level''
(d)(8)(ii)............................ ``exceeds the permissible exposure ``is above the permissible exposure
limit''. limit''
(j)(1)(i)............................. ``above the action level''......... ``at or above the action level''
(j)(2)(ii)............................ ``exceeds the numerical criterion'' ``is at or above the numerical
criterion''
(j)(2)(iv)............................ ``exceeds 40 [mu]g/100 g'' and ``is at or above 40 [mu]g/100 g''
``exceeds the numerical and ``is at or above the numerical
criterion''. criterion''
(k)(1)(i)(B).......................... ``at or below 40 [mu]g/100 g''..... ``below 40 [mu]g/100 g''
(k)(1)(iii)(A)(1)..................... ``at or below 40 [mu]g/100 g''..... ``below 40 [mu]g/100 g''
Sec. 1926.62 (Lead in Construction):
(d)(8)(ii)............................ ``at or above the PEL'' and ``at or ``above the PEL'' and ``above that
above that level''. level''
(j)(2)(ii)............................ ``exceeds the numerical criterion'' ``is at or above the numerical
criterion''
(j)(2)(iv)(B)......................... ``exceeds 40 [mu]g/dl''............ ``is at or above 40 [mu]g/dl''
(k)(1)(iii)(A)(1)..................... ``at or below 40 [mu]g/dl''........ ``below 40 [mu]g/dl''
----------------------------------------------------------------------------------------------------------------
19. Would making the provisions of the lead standards more
consistent with each other assist employers in complying with these
standards?
20. Are there any increases to the economic or paperwork burden as
a result of making the suggested changes? If increases are identified,
please explain the impact.
21. Are there similar changes needed in other standards that would
increase their consistency? Please explain the rationale for your
suggestions.
H. 1,3-Butadiene (Sec. 1910.1051)
Paragraph (m)(3) of the 1,3-butadiene standard (Sec. 1910.1051)
for general industry requires employers to establish and maintain fit-
testing records for employees who use respirators to reduce toxic
exposures. However, paragraph (h)(2)(i) states that ``employers must
implement a respiratory protection program in accordance with OSHA's
respiratory-protection standard Sec. 1910.134 (b) through (d) * * *
and (f) through (m).'' The requirements to establish and maintain fit-
testing records specified in paragraph (m)(2) of the respiratory-
protection standard are essentially the same as the applicable
recordkeeping requirements in paragraph (m)(3) of the 1,3-butadiene
standard.
The Agency inadvertently failed to delete the recordkeeping
provision in the 1,3-butadiene standard when it replaced many of the
respiratory-protection requirements of health standards with the
reference to the respiratory-protection standard in Sec. 1910.134 (see
63 FR 1293-1294). OSHA believes that having two similar recordkeeping
provisions is redundant and confusing. Therefore, the Agency is
considering removing paragraph (m)(3) from the 1,3-butadiene standard
for general industry.
22. To what extent, in any, does removing paragraph (m)(3) from
1,3-butadiene standard reduce protection?
23. Does removing this paragraph reduce employers' and employees'
understanding of their obligations to keep respirator fit-test records?
24. Are there similar changes that can be made in other standards
that would increase their consistency? Please explain the rationale for
your suggestions.
I. Asbestos (Sec. 1915.1001)
The introductory paragraph to OSHA's respiratory-protection
standard (Sec. 1910.134) specifies that the standard applies to ship
repair, shipbuilding, and ship breaking (i.e. shipyards) (Part 1915),
general industry (Part 1910), marine terminals (Part 1917), longshoring
(Part 1918), and construction (Part 1926). Three of these parts,
general industry, shipyards, and construction, contain standards
regulating employee exposure to asbestos, with each of these standards
having a paragraph entitled ``Respirator program.'' These paragraphs
specify the requirements for an employer's respirator program with
respect to asbestos exposure. In the final rulemaking for the
respiratory-protection standard, the Agency updated these paragraphs in
the asbestos standards for general industry and construction \4\ so
that the program requirements would be consistent with the provisions
of the newly revised respiratory-protection standard (see 63 FR 1285
and 1298). However, the Agency inadvertently omitted revising the
respirator program requirements specified in paragraph (h)(3)(i) of the
asbestos standard for shipyards (Sec. 1915.1001). OSHA is considering
correcting this oversight and revising paragraph (h)(3)(i) of the
asbestos standard for shipyards to read the same as paragraphs
(g)(2)(i) of the asbestos standard for general industry (Sec.
1910.1001) and (h)(2)(i) of the asbestos standard for construction
(Sec. 1926.1101) which state ``[t]he employer must implement a
respiratory protection program in accordance with Sec. 1910.134 (b)
through (d) (except (d)(1)(iii)), and (f) through (m).''
---------------------------------------------------------------------------
\4\ Paragraphs (g)(2)(i) and (h)(2)(i) of the asbestos standard
for general industry (Sec. 1910.1001) and the asbestos standard for
construction (Sec. 1926.1101), respectively, specify the provisions
of the updated respiratory-protection standard that apply to
employers covered by these standards.
---------------------------------------------------------------------------
Similarly, the Agency is considering removing paragraphs
(h)(3)(ii), (h)(3)(iii), and the entirety of paragraph (h)(4) from the
shipyard standard, which address filter changes, washing faces and
facepieces to prevent skin irritation, and fit testing, respectively.
OSHA believes this is appropriate because the continuing-use provisions
specified in paragraph (g)(2)(ii) duplicate paragraphs (h)(3)(ii) and
(h)(3)(iii) of the asbestos standard for shipyards. Also, the fit-
testing requirements provided in paragraph (f) of the respiratory-
protection standard either meet or exceed the provisions specified in
(h)(4) of the shipyard asbestos standard except that the frequency of
fit-testing is different. The current Shipyard asbestos standard at
Sec. 1915.1001 (4)(i) requires quantitative and qualitative fit-
testing be performed initially and at least every six months
thereafter. The Respirator standard at Sec. 1910.134 (f)(2) requires
employees wearing a tight-fitting respirator be fit-tested prior to
initial use, whenever a different facepiece is used and at least
annually thereafter.
By adding the reference to Sec. 1910.134 (respirator standard) in
Sec. 1915.1001(h)(3)(i) of the shipyard asbestos standard, OSHA would
incorporate the fit testing requirements of Sec. 1910.134(f), which
include the requirement to use the OSHA-accepted qualitative fit testing
and quantitative fit testing protocols and procedures contained in Appendix A.
Accordingly, the fit testing requirements of Sec. 1915.1001, Appendix C
would be duplicative. Therefore, OSHA is considering deleting this Appendix.
25. Would revising Sec. 1915.1001(h)(3)(i) to be consistent with
similar provisions in the asbestos standard for general industry and
construction create additional compliance requirements?
26. Does this change maintain the same level of employee
protection? Would making the recommended changes increase the economic
or paperwork burden?
27. Besides altering the frequency of fit testing, how would making
the recommended change to delete paragraphs (h)(3)(ii) through
(h)(4)(ii) affect the requirements of the standard?
J. General Modifications to Medical Examinations and Industrial Hygiene
Sampling Provisions
Many of OSHA's health standards are over 20 years old. Since their
promulgation, there have been many technological advances, including
changes in medical testing and industrial hygiene sampling. The Agency
is interested in determining whether any of these new medical tests or
industrial hygiene sampling technologies should be permitted for use in
its health standards. The Agency is also interested in determining
whether these tests or technologies would accomplish the identified
task required by the standard as well as or better than the
technologies identified in the current medical and sampling
requirements.
28. Are there newer medical tests that would provide equivalent or
better diagnostic results than the tests contained in OSHA's standards?
For example, are there updated medical tests that could replace chest
x-rays for diagnosing asbestos related diseases or Beta-2 microglobulin
in urine for diagnosing kidney disease related to cadmium exposure?
29. Are there newer methods to determine personal exposures to
hazards? For example, are there newer methods using passive sampling
for different chemical exposures or an updated method to determine
exposure to cotton dust better than the vertical elutriator cotton dust
sampler?
K. General Modifications to Training Provisions
Training is an essential part of every employer's safety and health
program for protecting employees from injury and illness. Many OSHA
standards specifically require that employers train employees in the
safety and health aspects of their jobs. Other OSHA standards establish
employers' responsibility to limit certain job assignments to employees
who are ``competent'' or ``qualified,'' meaning that they have had
specialized training.
In SIPs II, OSHA changed the notification and timing requirements
in some health standards to make them more consistent across different
health standards (67 FR 66493). OSHA did this to reduce regulatory
confusion and facilitate compliance but without diminishing employee
protection. Similarly, the Agency believes bringing consistency to its
training requirements would achieve the same goals.
30. How could the Agency modify the training requirements in
various OSHA safety and health standards to promote compliance with the
training requirements?
31. How should training content and frequency of retraining be
addressed to improve employees' safety and health? Please identify
changes that could be made to improve the training process.
32. Would making training requirements uniform among various
standards facilitate employers' compliance with OSHA regulations?
Please explain.
33. To what extent, if any, do other agencies' training
requirements overlap with OSHA's?
L. Miscellaneous Items Under Consideration
a. Recordkeeping Requirements--Commercial Diving Operations (Sec.
1910.440)
The original Commercial Diving Operations standard included a
requirement in paragraph Sec. 1910.411 that employers provide medical
exams to dive team members. This paragraph was removed by a 1979 court
decision [Taylor Diving and Salvage vs. U.S. Department of Labor (599
F.2d 622)(5th Cir., 1979)]. However, the current standard still
includes a reference to paragraph Sec. 1910.411 in paragraph (b)(3)(i)
of Sec. 1910.440, which requires employers to keep dive team medical
records for five years. Since there is no longer a requirement for team
medical exams, the requirement to keep such records for five years
makes no sense. Therefore, OSHA intends to propose removing paragraph
(b)(3)(i) of Sec. 1910.440.
34. Is there any reason why this paragraph should not be deleted?
Please explain.
35. Are there references in other standards that need to be
updated?
b. Definitions (Sec. Sec. 1917.2, 1918.2, and 1919.2)
Hazardous Ships' Stores (46 CFR 147) contains the following
definition for ships' stores:
Materials which are aboard a vessel for the upkeep, maintenance,
safety, operation, or navigation of the vessel, or for the safety or
comfort of the vessel's passengers or crew.
A definition of ships' stores is not contained in Marine Terminals
(29 CFR 1917.2), Safety and Health Regulations for Longshoring (29 CFR
1918.2), and Gear Certification (29 CFR 1919.2), even though these OSHA
standards contain the term. OSHA is considering adding the definition
of ships' stores in 47 CFR 147 to these OSHA standards.
36. Is there any reason why this definition should not be added to
the OSHA standards listed? If so, please explain your rationale for why
this definition should not be added. Is there an alternative definition
that OSHA should consider?
37. Are there other definitions that could be added to these or
other standards to improve consistency?
M. General Solicitation for Recommendations
In addition to solicitation of comment on the specific
recommendations noted above, OSHA invites comment on other standards
that are in need of improvement because they are confusing, outdated,
duplicative, or inconsistent with similar standards. It would be
helpful if you could provide information supporting your recommended
changes. Please describe the reasons why you believe these regulations
are confusing, outdated, duplicative or inconsistent and provide
specific language that you believe will improve the standard.
38. Are there any standards that can be updated to make them more
protective of employees' safety or health and at the same time reduce
the compliance burden on employers?
39. Are there any standards that can be updated to be more
protective of employees' safety or health without imposing any
additional compliance burden on the employer?
40. Are there any other standards that need to be changed to reduce
or eliminate inconsistencies between standards?
III. Public Participation
Submission of Comments and Access to the Docket
OSHA invites comments on all aspects of this advance notice of
proposed rulemaking (ANPRM). Throughout this document, OSHA has invited
comment on specific issues and requested information and data about
practices at your establishment and in your industry. OSHA will
carefully review and evaluate these comments, information and data, as
well as all other information in the rulemaking record, to determine
how to proceed.
You may submit comments and additional materials (1) electronically
at http://www.regulations.gov, which is the Federal eRulemaking Portal;
(2) by facsimile (FAX); or (3) by hard copy. All submissions must
identify the Agency name and the OSHA docket number for this rulemaking
(S-778B). You may supplement electronic submissions by uploading
document attachments and files electronically. If, instead, you wish to
mail additional materials in reference to an electronic or fax
submission, you must submit three copies to the OSHA Docket Office (see
ADDRESSES section). The additional materials must clearly identify your
electronic submissions by name, date, and docket number so OSHA can
attach them to your submissions.
Because of security-related procedures, the use of regular mail may
cause a significant delay in the receipt of submissions. For
information about security procedures concerning the delivery of
materials by hand, express delivery, messenger or courier service,
please contact the OSHA Docket Office at (202) 693-2350 (TTY (877) 889-
5627).
Submissions are posted without change at: http://www.regulations.gov.
Therefore, OSHA cautions commenters about submitting personal information
such as social security numbers and dates of birth. Although all submissions
are listed in the http://www.regulations.gov index, some information (e.g., copyrighted
material) is not publicly available to read or download through http://www.regulations.gov.
All submissions, including copyrighted material, are available for inspection
and copying at the OSHA Docket Office. Information on using the
http://www.regulations.gov Web site to submit
comments, and attachments, and to access the docket, is available at
the Web site's User Tips link. Contact the OSHA Docket Office for
information about materials not available through the Web site and for
assistance in using the Internet to locate docket submissions.
Electronic copies of this Federal Register document are available
at http://www.regulations.gov. This document, as well as news releases
and other relevant information, also is available at OSHA's Webpage at:
http://www.osha.gov.
IV. Authority and Signature
This document was prepared under the direction of Edwin G. Foulke,
Jr., Assistant Secretary 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),
29 CFR 1911, and Secretary's Order 5-2002 (67 FR 65008).
Edwin G. Foulke, Jr.,
Assistant Secretary of Labor.
[FR Doc. E6-21799 Filed 12-20-06; 8:45 am]
BILLING CODE 4510-26-P
