[Federal Register: August 11, 2009 (Volume 74, Number 153)][Proposed Rules] [Page 40449-40455]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au09-39]
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Part V
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Part 1910
Revising Standards Referenced in the Acetylene Standard; Proposed Rule
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. OSHA-2008-0034]
RIN 1218-AC08
Revising Standards Referenced in the Acetylene Standard
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In this Notice of Proposed Rulemaking (NPRM), the Agency is
proposing to revise its Acetylene Standard for general industry by
updating references to standards published by standards developing
organizations (i.e., "SDO standards"). OSHA also is publishing a
direct final rule in today's Federal Register taking these same
actions. This NPRM is the companion document to the direct final rule.
This rulemaking is a continuation of OSHA's ongoing effort to update
references to SDO standards used throughout its rules.
DATES: Submit comments to this NPRM (including comments to the
information-collection (paperwork) determination described under the
section titled Procedural Determinations), hearing requests, and other
information by September 10, 2009. All submissions must bear a postmark
or provide other evidence of the submission date. (The following
section titled ADDRESSES describes methods available for making
submissions.)
ADDRESSES: Submit comments and hearing requests as follows:
Electronic. Submit comments electronically to http://
www.regulations.gov, which is the Federal eRulemaking Portal. Follow
the instructions online for submitting comments.
Facsimile. OSHA allows facsimile transmission of comments
and hearing requests that are 10 pages or fewer in length (including
attachments). Send these documents to the OSHA Docket Office at (202)
693-1648; OSHA does not require hard copies of these documents. Instead
of transmitting facsimile copies of attachments that supplement these
documents (e.g., studies, journal articles), commenters must submit
these attachments, in triplicate hard copy, to the OSHA Docket Office,
Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200
Constitution Ave., NW., Washington, DC 20210. These attachments must
clearly identify the sender's name, date, subject, and docket number
(i.e., OSHA-2008-0034) so that the Agency can attach them to the
appropriate document.
Regular mail, express delivery, hand (courier) delivery,
and messenger service. Submit three copies of comments and any
additional material (e.g., studies, journal articles) to the OSHA
Docket Office, Docket No. OSHA-2008-0034 or RIN No. 1218-AC08,
Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200
Constitution Ave., NW., Washington, DC 20210; telephone: (202) 693-
2350. (OSHA's TTY number is (877) 889-5627.) Note that security-related
procedures may result in significant delays in receiving comments and
other written materials by regular mail. Please contact the OSHA Docket
Office for information about security procedures concerning delivery of
materials by express delivery, hand delivery, and messenger service.
The hours of operation for the OSHA Docket Office are 8:15 a.m. to 4:45
p.m., E.T.
Instructions. All submissions must include the Agency name
and the OSHA docket number (i.e., OSHA Docket No. OSHA-2008-0034).
Comments and other material, including any personal information, are
placed in the public docket without revision, and will be available
online at http://www.regulations.gov. Therefore, the Agency cautions
commenters about submitting statements they do not want made available
to the public, or submitting comments that contain personal information
(either about themselves or others) such as Social Security numbers,
birth dates, and medical data.
OSHA requests comments on all issues related to this NPRM. It also
welcomes comments on its findings that this NPRM would have no negative
economic, paperwork, or other regulatory impacts on the regulated
community. This NPRM is the companion document to a direct final rule
also published in today's Federal Register. If OSHA receives no
significant adverse comment on the companion direct final rule, it will
publish a Federal Register document confirming the effective date of
the direct final rule and withdrawing this NPRM. The confirmation may
include minor stylistic or technical corrections to the document. For
the purpose of judicial review, OSHA considers the date that it
confirms the effective date of the direct final rule to be the date of
issuance. However, if OSHA receives significant adverse comment on the
direct final rule, it will publish a timely withdrawal of the direct
final rule and proceed with this proposal, which addresses the same
revisions to the Acetylene Standard.
Docket. The electronic docket for this proposal
established at http://www.regulations.gov lists most of the documents
in the docket. However, some information (e.g., copyrighted material)
is not publicly available to read or download through this Web site.
All submissions, including copyrighted material, are available for
inspection and copying at the OSHA Docket Office. Contact the OSHA
Docket Office for assistance in locating docket submissions.
FOR FURTHER INFORMATION CONTACT: Press inquiries. Contact Jennifer
Ashley, OSHA Office of Communications, Room N-3647, U.S. Department of
Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone:
(202) 693-1999.
General and technical information. Contact Ted Twardowski, Office
of Safety Systems, Directorate of Standards and Guidance, Room N-3609,
OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210; telephone: (202) 693-2255; fax: (202) 693-1663.
SUPPLEMENTARY INFORMATION: Copies of this Federal Register notice.
Electronic copies are available at http://www.regulations.gov. This
Federal Register notice, as well as news releases and other relevant
information, also are available at OSHA's Web page at http://
www.osha.gov.
Table of Contents
I. Background
II. Direct Final Rulemaking
III. Summary and Explanation of Revisions to the Acetylene Standard
IV. Procedural Determinations
A. Legal Considerations
B. Preliminary Economic Analysis and Regulatory Flexibility Act
Certification
C. OMB Review Under the Paperwork Reduction Act of 1995
D. Federalism
E. State-Plan States
F. Unfunded Mandates Reform Act of 1995
G. Public Participation
V. Authority and Signature
I. Background
This action is part of a rulemaking project instituted by the
Occupational Safety and Health Administration ("OSHA" or "the
Agency") to update OSHA standards that reference or include language
from outdated standards published by standards developing organizations
("SDO standards") (69 FR 68283). The SDO standards referenced in OSHA's
Acetylene Standard (29 CFR 1910.102) are among the SDO standards that the
Agency identified for revision.
OSHA adopted the Acetylene Standard in 1974 pursuant to Section
6(a) of the Occupational Safety and Health Act of 1970 (OSH Act; 29
U.S.C. 651, 655). This section allowed OSHA, during the first two years
after passage of the OSH Act, to adopt existing Federal and national
consensus standards as OSHA safety and health standards, including the
current Acetylene Standard.
After OSHA announced the SDO rulemaking project, the Agency met
with the Compressed Gas Association ("CGA") about the rulemaking
project. CGA, a private standard organization, provided detailed
recommendations on updating SDO standards referenced in OSHA standards,
including the Acetylene Standard (Ex. OSHA-2008-0034-0003). Thereafter,
the U.S. Chemical Safety and Hazard Investigation Board ("Chemical
Safety Board") also recommended that OSHA update the SDO standards
referenced in the Acetylene Standard (Ex. OSHA-2008-0034-0004).
II. Direct Final Rulemaking
In a direct final rulemaking ("DFR"), an agency publishes a DFR
in the Federal Register along with a statement that the rule will
become effective unless the agency receives significant adverse comment
within a specified period. The agency also publishes concurrently an
identical proposed rule. If the agency receives no significant adverse
comment, the DFR goes into effect. If, however, the agency receives
significant adverse comment, the agency withdraws the DFR and treats
the comments as submissions on the proposed rule.
OSHA uses DFRs in the SDO rulemaking project because it expects the
rules to: be noncontroversial; provide protection to employees that is
at least equivalent to the protection afforded to them by the outdated
SDO standard; and impose no significant new compliance costs on
employers (69 FR 68283, 68285). OSHA is using DFRs to update or, when
appropriate, revoke references to outdated national SDO standards in
OSHA rules (see, e.g., 69 FR 68283, 70 FR 76979, and 71 FR 80843).
For purposes of the DFR, a significant adverse comment is one that
explains why the rule would be inappropriate, including challenges to
the rule's underlying premise or approach. In determining whether a
comment necessitates withdrawal of the DFR, OSHA will consider whether
the comment raises an issue serious enough to warrant a substantive
response in a notice-and-comment process. OSHA will not consider a
comment recommending additional revisions to a rule to be a significant
adverse comment unless the comment states why the DFR would be
ineffective without the revisions. If OSHA receives a timely
significant adverse comment, the Agency will publish a Federal Register
notice withdrawing the DFR no later than 90 days after the publication
date of the notice.
OSHA believes that the proposed revisions to the Acetylene Standard
would not compromise the safety of employees, and instead would enhance
employee protection. For example, the updated Acetylene Standard would
include mandatory requirements for acetylene piping systems, have
special requirements for high-pressure piping systems, and prohibit
storage of acetylene cylinders in confined spaces--requirements that
are not included in the current SDO standards. The updated SDO
standards also provide employers with new and more extensive
information than the current standards, which should facilitate
compliance. Replacing the unenforceable SDO standard in Sec.
1910.102(b) (i.e., Compressed Gas Association Pamphlet G-1.3-1959; see
discussion below under Section III.A ("Sec. 1910.102(c)--Generators
and filling cylinders")) will clarify employers' compliance
obligations and prevent inappropriate enforcement action, while also
increasing employee protection.
The Agency preliminarily determined that updating and replacing the
SDO standards in the Acetylene Standard is appropriate for direct final
rulemaking. As described below, the proposed revisions will make the
requirements of OSHA's Acetylene Standard consistent with current
industry practices, thereby eliminating confusion and clarifying
employer obligations. Eliminating confusion and clarifying employer
obligations should increase employee safety while reducing compliance
costs.
III. Summary and Explanation of Revisions to the Acetylene Standard
This NPRM would update the SDO standards referenced in the three
paragraphs that comprise the Acetylene Standard. The Compressed Gas
Association (CGA) published several editions of these SDO standards
after OSHA adopted them in 1974, and one of these standards (i.e.,
Compressed Gas Association Pamphlet G-1.4-1966), is no longer available
for purchase from CGA. Therefore, to ensure that employers have access
to the latest safety requirements for managing acetylene, OSHA is
proposing in this rulemaking to adopt the requirements specified in the
most recent versions of the SDO standards. The following discussion
provides a summary of the revisions OSHA is proposing for paragraphs
(a), (b), and (c) of the Acetylene Standard.
A. Sec. 1910.102(a)--Cylinders.
For paragraph (a) of Sec. 1910.102, the NPRM proposes to replace
the reference to the 1966 edition of CGA Pamphlet G-1 ("Acetylene")
(Ex. OSHA-2008-0034-0005) with the most recent (i.e., 2003) edition of
that standard (also entitled "Acetylene") ((Ex. OSHA-2008-0034-0006).
According to CGA, the 2003 edition is the fifth revision of the
standard since OSHA adopted the 1966 edition in 1974 (Ex. OSHA-2008-
0034-0003).
In reviewing CGA-1-2003, OSHA identified two provisions in that
standard that appear to be substantive revisions from the 1966 edition.
First, the last provision of paragraph 5.2 in the 2003 edition
prohibits storing acetylene cylinders in confined spaces such as
drawers, closets, unventilated cabinets, automobile trunks, or
toolboxes. In addition, the document recommends that acetylene
cylinders should not be stored or transported in automobiles or any
enclosed vehicles. The 1966 edition contains neither the above
prohibition nor recommendation. Second, both editions recommend flow
rates that will minimize withdrawal of liquid solvent when releasing
acetylene from a cylinder; however, the recommended flow rates differ
between the two editions. Paragraph 5.3.3.13 of the 1966 edition
specifies that the flow rate should be one-seventh of the capacity of
the cylinder per hour regardless of the duration of use, while
paragraph 6.2 of the 2003 edition recommends a flow rate of one-tenth
of the cylinder capacity per hour during intermittent use, and one-
fifteenth of the cylinder capacity per hour during continuous use.\1\
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\1\ Note that both of these flow-rate provisions are advisory,
not mandatory.
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Other differences between the 1966 and 2003 editions of CGA G-1
include adding the following sentence to the provision warning
employers to avoid abnormal mechanical shocks that could damage
cylinders, valves, and pressure-relief devices: \2\ "This [avoiding
abnormal mechanical shocks] is especially important on those small
cylinders not equipped with protection caps." This sentence notifies
employers that the valves of small cylinders are especially susceptible
to damage (and possible release of acetylene) because protective caps or
guards do not cover the valves. Similarly, in the 2003 edition, CGA added
a provision to section 6.2 ("Withdrawing acetylene from cylinders") \3\
requiring employers to "[v]isually examine the CGA connection on the cylinder
and remove any visible contamination before connecting the regulator. Clean
out the contaminant using nitrogen, air, or a clean rag. Avoid opening an
acetylene cylinder valve without a suitable regulator and flow
restrictor such as a torch attached." This provision prevents the
following two hazards: (1) Acetylene-related explosions (by removing
contaminants that could serve as an ignition source), and (2) massive
releases of acetylene into the workplace (by notifying employers to use
suitable regulators and restrictors to control the rate at which
acetylene flows from a cylinder).
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\2\ See paragraph 5.2.1 of the 1966 edition, and the first
paragraph of section 6.1 of the 2003 edition.
\3\ Section 5.3 of the 1966 version regulates the withdrawal of
acetylene from cylinders.
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The remaining differences between the 1966 and 2003 editions
include: making plain-language revisions to the text; providing
measurements using the International System of Units; listing current
Department of Transportation specifications; presenting guidance in the
2003 edition on how to handle leaking cylinders; and noting in the 2003
edition that commercial acetylene generally is considered nontoxic. CGA
also added text to the 2003 edition that prohibits tightening leaking
fuseplugs or valves while the cylinder is under pressure, as well as
enhanced illustrations (Figure 1) of acetylene cylinder-shell
constructions.
OSHA believes that the provisions of CGA G-1-2003 are consistent
with the usual and customary practice of employers in the industry, and
preliminarily determines that incorporating CGA G-1-2003 into paragraph
(a) of Sec. 1910.102 would not add compliance burden for employers.
OSHA invites the public to comment on whether the revisions made to CGA
G-1-1966 in the 2003 edition of the standard represent current industry
practice.
B. Sec. 1910.102(b)--Piped systems.
CGA no longer publishes CGA Pamphlet G-1.3-1959 ("Acetylene
Transmission for Chemical Synthesis") (Ex. OSHA-2008-0034-0007). In
addition, both this standard and its recent replacement (i.e., Part 3
of CGA G-1.2-2006 ("Acetylene piping"), (Ex. OSHA-2008-0034-0008))
consist entirely of advisory provisions. Under existing law (see, e.g.,
Usery v. Kennecott Copper Corporation (577 F.2d 1113 (10th Cir. 1977)),
OSHA cannot enforce advisory provisions. Therefore, this NPRM proposes
to revise paragraph (b) of Sec. 1910.102 to refer instead to the
requirements for acetylene piping systems specified in Chapter 9
("Acetylene Piping") of NFPA 51A-2006 ("Standard for Acetylene
Charging Plants") (Ex. OSHA-2008-0034-0009) or Chapter 7 ("Acetylene
Piping") of NFPA 51A-2001 ("Standard for Acetylene Charging Plants")
(Ex. OSHA-2008-0034-0010). Whether employers use NFPA 51A-2006 or NFPA
51A-2001 would depend on when the facilities, equipment, structures, or
installations used to generate acetylene or to charge (fill) acetylene
cylinders were approved for construction or installation. (See
discussion of which NFPA standard applies in the Section III.C below
("Sec. 1910.102(c)--Generators and filling cylinders").)
The piping-system requirements specified in NFPA 51A-2006 or NFPA
51A-2001 are not as extensive as the requirements contained in either
CGA Pamphlet G-1.3-1959 or Part 3 of CGA G-1.2-2006. However, OSHA
believes that the piping-system requirements in the two NFPA standards
will provide employers with important information for installing and
maintaining piping systems used to transfer acetylene until a more
detailed (and enforceable) standard becomes available. In addition,
unlike CGA Pamphlet G-1.3-1959, the two NFPA standards have special
requirements for high-pressure acetylene piping systems, which likely
would increase employee protection. Meanwhile, paragraph (b)(iv) of
Sec. 1910.102 refers employers to Part 3 of CGA G-1.2-2006 for
additional information on acetylene piping systems.
OSHA believes that the revisions it is proposing to Sec.
1910.102(b) represent the usual and customary practice of the industry
today. Therefore, OSHA preliminarily concludes that making the proposed
revisions would not impose an additional compliance burden on
employers. Accordingly, OSHA requests public comment on the extent to
which the revisions proposed for Sec. 1910.102(b) represent current
industry practice.
C. Sec. 1910.102(c)--Generators and filling cylinders.
CGA no longer publishes the consensus standard referenced in
paragraph (c) of CGA G-1.4-1966 ("Standard for Acetylene Charging
Plants") (Ex. OSHA-2008-0034-0011). In 1970, the National Fire
Protection Association (NFPA) adopted this CGA standard as NFPA 51A
("Standard for Acetylene Charging Plants") (Ex. OSHA-2008-0034-0012).
NFPA manages revisions to this standard, the latest versions of which
it published in 2001 and 2006.
Section 1.4.1 of the 2006 standard excepts from the standard any
"facilities, equipment, structures, or installations that existed or
were approved for construction or installation prior to the effective
date of the standard." \4\ This section also states, "Where
specified, the provisions of this standard shall be retroactive." \5\
Therefore, this provision requires compliance with the entire standard
only when facilities, equipment, structures, or installations were
approved for construction or installation on or after February 16,
2006, the effective date of the 2006 standard. However, the 2001
edition of NFPA 51A (Ex. OSHA-2008-0034-0013) has no effective-date
provision, and applies retroactively to all facilities, equipment,
structures, or installations that existed (or were approved for
construction and installation) prior to February 16, 2006.
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\4\ OSHA interprets the phrase "were approved for construction
or installation prior to the effective date of the standard" to
mean that construction and installation occurred on or after the
effective date of the standard.
\5\ OSHA found no such provisions in the standard.
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OSHA is proposing in this NPRM that employers comply with NFPA 51A-
2001, provided they demonstrate that the installations, facilities,
equipment, or structures used to generate acetylene or to charge (fill)
acetylene cylinders existed, or were approved for construction or
installation, prior to February 16, 2006. Employers having
installations, facilities, equipment, or structures approved for
construction or installation on or after February 16, 2006, would have
to comply with NFPR 51A-2006.\6\ By removing the reference to an
outdated, unavailable standard from Sec. 1910.102(c), and updating the
referenced standards to be consistent with current industry practices,
OSHA believes that the proposed revisions to Sec. 1910.102(c) would
reduce regulatory confusion and ensure up-to-date employee protection.
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\6\ While not mandated, OSHA encourages employers covered NFPA
51A-2001 to comply with the requirements of NFPA 51A-2006.
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While many of the differences between CGA G-1.4-1966 and NFPA 51A-
2001 and -2006 involve minor revisions to the text, usually to update
the terminology or to improve the comprehensibility of the text, a number
of the differences are substantive. OSHA compiled lists of these substantive
differences, and is making these lists available in the docket at http://
www.regulations.gov (see Exs. OSHA-2008-0034-0014 and -0015).
OSHA believes that employers in the industry currently apply the
requirements of NFPA 51A-2001 to installations, facilities, equipment,
or structures constructed or installed prior to February 16, 2006, and
that they apply NFPA 51A-2006 to installations, facilities, equipment,
or structures approved for construction or installation on or after
February 16, 2006. Consequently, OSHA preliminarily determines that
this NPRM would impose no additional compliance burden on these
employers. OSHA invites the public to comment on the extent to which
employers involved in charging acetylene cylinders already comply with
NFPA 51A-2001 and -2006, as well as any additional burden these
employers would have if OSHA adopted the proposed standard.
IV. Procedural Determinations
A. Legal Considerations
The purpose of the Occupational Safety and Health Act of 1970 (29
U.S.C. 651 et seq.), is "to assure so far as possible every working
man and woman in the nation safe and healthful working conditions and
to preserve our human resources." 29 U.S.C. 651(b). To achieve this
goal, Congress authorized the Secretary of Labor to promulgate and
enforce occupational safety and health standards. 29 U.S.C. 655(b),
654(b). A safety or health standard is a standard "which requires
conditions, or the adoption or use of one or more practices, means,
methods, operations, or processes, reasonably necessary or appropriate
to provide safe or healthful employment or places of employment." 29
U.S.C. 652(8). A standard is reasonably necessary or appropriate within
the meaning of Section 652(8) when a significant risk of material harm
exists in the workplace and the standard would substantially reduce or
eliminate that workplace risk.
This proposed rule will not reduce the employee protections put
into place by the standards OSHA is updating under this rulemaking. In
fact, this rulemaking likely would enhance employee safety by adding
requirements, eliminating confusing requirements, and clarifying
employer obligations. Therefore, it is unnecessary to determine
significant risk, or the extent to which this rule would reduce that
risk, as typically is required by Industrial Union Department, AFL-CIO
v. American Petroleum Institute (448 U.S. 607 (1980)).
B. Preliminary Economic Analysis and Regulatory Flexibility Act
Certification
The proposed standard would not be "economically significant" as
specified by Executive Order 12866, or a "major rule" under Section
804 of the Small Business Regulatory Enforcement Fairness Act of 1996
("SBREFA"; 5 U.S.C. 804). The direct final rule does not impose
significant additional costs on any private- or public-sector entity,
and does not meet any of the criteria for an economically significant
or major rule specified by Executive Order 12866 and the relevant
statutes. (While not economically significant, as part of OSHA's
regulatory agenda, the proposed standard is a "significant regulatory
action" under Executive Order 12866.)
The NPRM simply proposes to update references to outdated SDO
standards in OSHA's Acetylene Standard. The Agency preliminarily
concludes that the proposed revisions would not impose any additional
costs on employers because it believes that the updated SDO standards
represent the usual and customary practice of employers in the
industry. Consequently, the proposal imposes no costs on employers.
Therefore, OSHA certifies that it would not have a significant impact
on a substantial number of small entities. Accordingly, the Agency is
not preparing a regulatory flexibility analysis under the SBREFA (5
U.S.C. 601 et seq.).
C. OMB Review Under the Paperwork Reduction Act of 1995
Neither the existing nor updated SDO standards addressed by this
NPRM contain collection-of-information requirements. Therefore, this
NPRM does not impose or remove any information-collection requirements
for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et
seq. and 5 CFR part 1320. Accordingly, the Agency does not have to
prepare an Information Collection Request in association with this
rulemaking.
Members of the public may respond to this paperwork determination
by sending their written comments to the Office of Information and
Regulatory Affairs, Attn: OSHA Desk Officer (RIN 1218-AC08), Office of
Management and Budget, Room 10235, 725 17th Street, NW., Washington, DC
20503. The Agency encourages commenters to submit these comments to the
rulemaking docket, along with their comments on other parts of the
direct final rule. For instructions on submitting these comments and
accessing the docket, see the sections of this Federal Register notice
titled DATES and ADDRESSES. However, OSHA will not consider any comment
received on this paperwork determination to be a "significant adverse
comment" as specified above under Section II ("Direct Final
Rulemaking").
To make inquiries, or to request other information, contact Mr.
Todd Owen, Directorate of Standards and Guidance, OSHA, Room N-3609,
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210; telephone (202) 693-2222.
D. Federalism
OSHA reviewed this NPRM in accordance with the Executive Order on
Federalism (Executive Order 13132, 64 FR 43255, August 10, 1999), which
requires that Federal agencies, to the extent possible, refrain from
limiting State policy options, consult with States prior to taking any
actions that would restrict State policy options, and take such actions
only when clear constitutional authority exists and the problem is
national in scope. Executive Order 13132 provides for preemption of
State law only with the expressed consent of Congress. Any such
preemption must be limited to the extent possible.
Under Section 18 of the Occupational Safety and Health Act of 1970
("OSH Act"; U.S.C. 651 et seq.), Congress expressly provides that
States may adopt, with Federal approval, a plan for the development and
enforcement of occupational safety and health standards; States that
obtain Federal approval for such a plan are referred to as "State-Plan
States." (29 U.S.C. 667.) Occupational safety and health standards
developed by State-Plan States must be at least as effective in
providing safe and healthful employment and places of employment as the
Federal standards. Subject to these requirements, State-Plan States are
free to develop and enforce their own requirements for occupational
safety and health standards.
While OSHA drafted this NPRM to protect employees in every State,
Section 18(c)(2) of the Act permits State-Plan States and Territories
to develop and enforce their own standards for acetylene operations
provided these requirements are at least as effective in providing safe
and healthful employment and places of employment as the final
requirements that result from this proposal.
In summary, this NPRM complies with Executive Order 13132. In
States without OSHA-approved State Plans, any standard developed from
this proposal would limit State policy options in the same manner as
every standard promulgated by OSHA. In States with OSHA-approved State
Plans, this rulemaking would not significantly limit State policy options.
E. State-Plan States
When Federal OSHA promulgates a new standard or a more stringent
amendment to an existing standard, the 26 States or U.S. Territories
with their own OSHA-approved occupational safety and health plans
("State-Plan States") must amend their standards to reflect the new
standard or amendment, or show OSHA why such action is unnecessary
(e.g., because an existing State standard covering this area is already
"at least as effective" as the new Federal standard or amendment. (29
CFR 1953.5(a).) The State standard must be at least as effective as the
final Federal rule, must be applicable to both the private and public
(State and local government employees) sectors, and must be completed
within six months of the publication date of the final Federal rule.
When OSHA promulgates a new standard or amendment that does not impose
additional or more stringent requirements than the existing standard,
State-Plan States are not required to amend their standards, although
OSHA may encourage them to do so.
OSHA preliminarily determined that the State-Plan States would have
to adopt provisions comparable to the provisions in this NPRM within
six months after the Agency publishes the final rule that results from
this proposal. OSHA believes that the provisions of this NPRM would
provide employers in State-Plan States and Territories with new and
critical information and methods necessary to protect their employees
from the hazards found in and around workplaces engaged in acetylene
operations. The 26 States and Territories with OSHA-approved State
Plans are: Alaska, Arizona, California, Connecticut, Hawaii, Indiana,
Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, New
Jersey, New York, North Carolina, Oregon, Puerto Rico, South Carolina,
Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington, and
Wyoming. Connecticut, New Jersey, New York, and the Virgin Islands have
OSHA-approved State Plans that apply to State and local government
employees only. Until a State-Plan State/Territory promulgates its own
comparable provisions based on the final rule developed from this NPRM,
Federal OSHA will provide the State/Territory with interim enforcement
assistance, as appropriate.
F. Unfunded Mandates Reform Act of 1995
OSHA reviewed this NPRM in accordance with the Unfunded Mandates
Reform Act of 1995 ("UMRA"; 2 U.S.C. 1501 et seq.) and Executive
Order 12875 (56 FR 58093). As discussed above in Section IV.B
("Preliminary Economic Analysis and Regulatory Flexibility Act
Certification") of this notice, the Agency determined preliminarily
that this NRPM would not impose additional costs on any private- or
public-sector entity. Accordingly, this NRPM would require no
additional expenditures by either public or private employers.
As noted above under Section IV.E ("State-Plan States") of this
notice, the Agency's standards do not apply to State and local
governments except in States that have elected voluntarily to adopt a
State Plan approved by the Agency. Consequently, this NPRM would not
meet the definition of a "Federal intergovernmental mandate" (see
Section 421(5) of the UMRA (2 U.S.C. 658(5))). Therefore, for the
purposes of the UMRA, the Agency certifies that this proposed rule does
not mandate that State, local, or tribal governments adopt new,
unfunded regulatory obligations, or increase expenditures by the
private sector of more than $100 million in any year.
G. Public Participation
OSHA requests comments on all issues concerning this NPRM. The
Agency also welcomes comments on its determination that this NPRM would
have no negative economic or other regulatory impacts on employers, and
will increase employee protection. If OSHA receives no significant
adverse comment, it will publish a Federal Register document confirming
the effective date contained in the companion direct final rule (DFR)
and withdrawing this NPRM. Such confirmation may include minor
stylistic or technical corrections to the document. A full discussion
of what constitutes a significant adverse comment is discussed above in
Section II ("Direct Final Rulemaking").
The Agency will withdraw the DFR if it receives significant adverse
comment on the amendments contained in the DFR, and proceed with this
NPRM by addressing the comment(s) and publishing a new final rule.
Should the Agency receive a significant adverse comment regarding some
actions taken in the DFRs, but not others, it may (1) finalize those
actions that did not receive significant adverse comment, and (2)
conduct further rulemaking under this NPRM for the actions that
received significant adverse comment. The comment period for this NPRM
runs concurrently with that of the DFR. Therefore, any comments
received under this NPRM will be treated as comments regarding the DFR.
Similarly, OSHA will consider a significant adverse comment submitted
to the DFR as a comment to this NPRM; the Agency will consider such a
comment in developing a subsequent final rule.
Comments received will be posted without revision to http://
www.regulations.gov, including any personal information provided.
Accordingly OSHA cautions commenters about submitting personal
information such as Social Security numbers and birth dates.
List of Subjects in 29 CFR Part 1910
Acetylene, General industry, Occupational safety and health,
Safety.
V. Authority and Signature
Jordan Barab, Acting Assistant Secretary of Labor for Occupational
Safety and Health, U.S. Department of Labor, 200 Constitution Avenue,
NW., Washington, DC 20210, directed the preparation of this proposed
standard. The Agency is issuing this proposed standard under Sections
4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29
U.S.C. 653, 655, 657), Secretary of Labor's Order 5-2007 (72 FR 31159),
and 29 CFR part 1911.
Signed at Washington, DC on July 30, 2009.
Jordan Barab,
Acting Assistant Secretary of Labor for Occupational Safety and
Health..
For the reasons stated above in the preamble, OSHA is proposing to
amend 29 CFR part 1910 as follows:
PART 1910--[AMENDED]
Subpart A--[Amended]
1. Revise the authority citation for subpart A of part 1910 to read
as follows:
Authority: Sections 4, 6, 8, Occupational Safety and Health Act
of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order
Numbers 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736),
1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002
(67 FR 65008), and 5-2007 (72 FR 31159), as applicable.
Sections 1910.7 and 1910.8 also issued under 29 CFR part 1911.
Section 1910.7(f) also issued under 31 U.S.C. 9701, 29 U.S.C. 9a, 5
U.S.C. 553; Pub. L. 106-113 (113 Stat. 1501A-222); and OMB Circular
A-25 (dated July 8, 1993) (58 FR 38142, July 15, 1993).
2. Amend Sec. 1910.6 as follows:
[[Page 40455]]
A. Revise paragraph (k)(3).
B. Remove paragraphs (k)(4) and (k)(5), and redesignate paragraphs
(k)(6) through (k)(15) as paragraphs (k)(4) through (k)(13).
C. Add new paragraphs (q)(34) and (q)(35).
The additions and revisions read as follows:
Sec. 1910.6 Incorporation by reference.
* * * * *
(k) * * *
(3) CGA G-1-2003 Acetylene, IBR approved for Sec. 1910.102(a).
Copies of CGA Pamphlet G-1-2003 are available for purchase from the:
Compressed Gas Association, Inc., 4221 Walney Road, 5th Floor,
Chantilly, VA 20151; telephone: 703-788-2700; fax: 703-961-1831; e-
mail: cga@cganet.com.
* * * * *
(q) * * *
(34) NFPA 51A (2001) Standard for Acetylene Cylinder Charging
Plants, IBR approved for Sec. 1910.102(b) and (c). Copies of NFPA 51A-
2001 are available for purchase from the: National Fire Protection
Association, 1 Batterymarch Park, Quincy, MA 02169-7471; telephone: 1-
800-344-3555; e-mail: custserv@nfpa.org.
(35) NFPA 51A (2006) Standard for Acetylene Cylinder Charging
Plants, IBR approved for Sec. 1910.102(b) and (c). Copies of NFPA 51A-
2006 are available for purchase from the: National Fire Protection
Association, 1 Batterymarch Park, Quincy, MA 02169-7471; telephone: 1-
800-344-3555; e-mail: custserv@nfpa.org.
* * * * *
Subpart H--[Amended]
3. Revise the authority citation for subpart H of part 1910 to read
as follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Orders Nos. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017),
5-2002 (67 FR 65008), or 5-2007 (72 FR 31159), as applicable; and 29
CFR part 11.
Sections 1910.103, 1910.106 through 1910.111, and 1910.119,
1910.120, and 1910.122 through 1910.126 also issued under 29 CFR
part 1911.
Section 1910.119 also issued under Section 304, Clean Air Act
Amendments of 1990 (Pub. L. 101-549), reprinted at 29 U.S.C. 655
Note.
Section 1910.120 also issued under Section 126, Superfund
Amendments and Reauthorization Act of 1986 as amended (29 U.S.C. 655
Note), and 5 U.S.C. 553.
4. Revise Sec. 1910.102 to read as follows:
Sec. 1910.102 Acetylene.
(a) Cylinders. Employers must ensure that the in-plant transfer,
handling, storage, and use of acetylene in cylinders comply with the
provisions of CGA Pamphlet G-1-2003 ("Acetylene") (Compressed Gas
Association, Inc., 11th ed., 2003).
(b) Piped systems. (1) Employers must comply with Chapter 9
("Acetylene Piping") of NFPA 51A-2006 ("Standard for Acetylene
Charging Plants") (National Fire Protection Association, 2006 ed.,
2006).
(2) When employers can demonstrate that the facilities, equipment,
structures, or installations used to generate acetylene or to charge
(fill) acetylene cylinders were installed prior to February 16, 2006,
these employers may comply with the provisions of Chapter 7
("Acetylene Piping") of NFPA 51A-2001 ("Standard for Acetylene
Charging Plants") (National Fire Protection Association, 2001 ed.,
2001).
(3) The provisions of Sec. 1910.102(b)(2) also apply when the
facilities, equipment, structures, or installations used to generate
acetylene or to charge (fill) acetylene cylinders were approved for
construction or installation prior to February 16, 2006, but
constructed and installed on or after that date.
(4) For additional information on acetylene piping systems, see CGA
G-1.2-2006, Part 3 ("Acetylene piping") (Compressed Gas Association,
Inc., 3rd ed., 2006).
(c) Generators and filling cylinders. (1) Employers must ensure
that facilities, equipment, structures, or installations used to
generate acetylene or to charge (fill) acetylene cylinders comply with
the provisions of NFPA 51A-2006 ("Standard for Acetylene Charging
Plants") (National Fire Protection Association, 2006 ed., 2006).
(2) When employers can demonstrate that the facilities, equipment,
structures, or installations used to generate acetylene or to charge
(fill) of acetylene cylinders were constructed or installed prior to
February 16, 2006, these employers may comply with the provisions of
NFPA 51A-2001 ("Standard for Acetylene Charging Plants") (National
Fire Protection Association, 2001 ed., 2001).
(3) The provisions of Sec. 1910.102(c)(2) also apply when the
facilities, equipment, structures, or installations were approved for
construction or installation prior to February 16, 2006, but
constructed and installed on or after that date.
[FR Doc. E9-18643 Filed 8-10-09; 8:45 am]
BILLING CODE 4510-26-P
