[Federal Register Volume 68, Number 105 (Monday, June 2, 2003)]
[Rules and Regulations]
[Pages 32637-32638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13678]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910


Powered Industrial Trucks

AGENCY: Occupational Safety and Health Administration (OSHA), 
Department of Labor.

ACTION: Final rule; technical amendment.

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SUMMARY: This technical amendment deletes a Powered Industrial Trucks 
Standard covering the use of powered industrial trucks to lift 
personnel. It is being deleted because it was invalidly promulgated 
from a non-mandatory provision of a national consensus standard.

DATES: This final rule becomes effective on July 2, 2003.

FOR FURTHER INFORMATION CONTACT: For general information and press 
contact Ms. Bonnie Friedman, Director, Office of Communications, OSHA, 
U.S. Department of Labor, Rm. N3637, 200 Constitution Avenue, NW., 
Washington, DC 20210, telephone (202) 693-1999, Fax (202) 693-1634. For 
technical information contact: David Wallis, Office of Engineering 
Safety, Room N3609, telephone (202) 693-2064, or Patrick Kapust, Office 
of General Industry Enforcement, Room N3107, telephone (202) 693-1854 
at the above address.

SUPPLEMENTARY INFORMATION: In section 6(a) of the Occupational Safety 
and Health Act of 1970, 84 Stat. 1593; 29 U.S.C. 655(a), Congress 
authorized OSHA to adopt national consensus standards and established 
Federal Standards without prior notice and public participation. On May 
29, 1971, at 36 FR 10466, OSHA published a final rule in the Federal 
Register adopting national consensus standards and established Federal 
standards as OSHA's initial occupational safety and health standards 
for general industry.
    The preamble to that final rule contained the following statement:

    I do hereby designate as national consensus standards those 
standards in Part 1910 which are standards adopted and promulgated 
by either the American National Standards Institute (ANSI) or the 
National Fire Protection Association (NFPA). The national consensus 
standards contain only mandatory provisions of the standards 
promulgated by those two organizations. The standards of ANSI and 
NFPA may also contain advisory provisions and recommendations the 
adoption of which by employers is encouraged, but they are not 
adopted in Part 1910. (36 FR 10466) (emphasis added).

Thus, the standards adopted on May 29, 1971, were intended to include 
only the mandatory provisions of the relevant ANSI and NFPA standards.
    The American National Standard for Powered Industrial Trucks, ANSI 
B56.1-1969, was one of the national consensus standards that the Agency 
adopted under section 6(a). That ANSI standard was the source standard 
for 29 CFR 1910.178(e) through (p), the relevant paragraphs of OSHA's 
Powered Industrial Trucks Standard.
    Paragraph (m)(12) of Sec.  1910.178, as it was published in May 
1971 and as it still appears today, reads as follows:

    Whenever a truck is equipped with vertical only, or vertical and 
horizontal controls elevatable with the lifting carriage or forks 
for lifting personnel, the following additional precautions shall be 
taken for the protection of personnel being elevated.
    (i) Use of a safety platform firmly secured to the lifting 
carriage and/or forks.
    (ii) Means shall be provided whereby personnel on the platform 
can shut off power to the truck.
    (iii) Such protection from falling objects as indicated 
necessary by the operating conditions shall be provided. [Emphasis 
added.]

The requirement thus appears as a mandatory provision of OSHA's Powered 
Industrial Truck Standard.
    The corresponding provision in the base standard, ANSI B56.1-1969, 
was contained in section 604L, which read as follows:

    Whenever a truck is equipped with vertical only, or vertical and 
horizontal travel controls elevatable with the lifting carriage or 
forks for lifting personnel, the following additional precautions 
should be taken for the protection of personnel being elevated.
    (a) Use of a safety platform firmly secured to the lifting 
carriage and/or forks.
    (b) Provide means whereby personnel on the platform can shut off 
power to the truck.
    (c) Provide such protection from falling objects as indicated 
necessary by the operating conditions. [Emphasis added.]

    Consequently, OSHA revised the language of this subparagraph in the 
ANSI standard and, in doing so, made it mandatory instead. If a 
provision was not mandatory (``should''), in the source consensus 
standard, the corresponding OSHA provision that was invalidly adopted 
as (``shall'') mandatory is not enforceable [see Usery v. Kennecott 
Copper Corporation, 577 F.2d 1113, 1117 (10th Cir. 1977)]. 
Consequently, Sec.  1910.178(m)(12) is unenforceable by OSHA.
    Because it is unenforceable, OSHA is removing that provision, 29 
CFR 1910.178(m)(12), from the Powered Industrial Trucks Standard. Note 
that OSHA is removing all of paragraph (m)(12), including its 
subordinate paragraphs (m)(12)(i) through (m)(12)(iii).
    This action does not indicate that the underlying hazard addressed 
by these provisions is not serious. Indeed, if proper equipment, 
procedures and training are not provided, the lifting of personnel with 
powered industrial trucks poses hazards likely to cause death or 
serious injury to employees. As noted in OSHA's 1998 amendment to the 
Powered Industrial Trucks Standard, a significant percentage (4 to 14% 
depending on the study) of the 100 deaths and 95,000 injuries per year 
that involve powered industrial trucks, result from falls from 
personnel lifting. (See 63 FR 66238, December 1, 1998). The American 
Society of Mechanical Engineers' (ASME) current standard for powered 
industrial trucks (ASME B56.1-2000) addresses these hazards. For 
example, operator-up highlift trucks (order pickers, etc.) are 
addressed by paragraphs 4.17.1, 4.17.2 and 7.36. Trucks with work 
platforms which do not fit that category are covered by paragraphs 
4.17.2, 4.17.3 and 7.36.3.
    Under the Voluntary Consensus Standards Project (RIN 1218-AC08), 
the Agency has asked various consensus standards organizations to 
review their standards, compare the latest versions of these standards 
to the ones currently adopted by OSHA, and to determine which ones are 
most important for OSHA to update. The organizations have provided 
considerable information on priorities and other related issues. OSHA 
is in the process of evaluating the information it has received from 
the consensus standards organizations and is now considering the 
possibility of initiating rulemaking to revise and update the Powered 
Industrial Truck Standard.

[[Page 32638]]

    Exemption From Notice-and-Comment Procedures: The Agency has 
determined that this rulemaking is exempt from the procedures for 
public notice and comment rulemaking specified under section 4 of the 
Administrative Procedure Act (5 U.S.C. 553) and section (6)(b) of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)) because 
this technical amendment is required by law to remove an unenforceable 
provision. Consequently it does not change any existing rights or 
obligations. Therefore, the Agency finds that public notice-and-comment 
procedures are unnecessary within the meaning of 5 U.S.C. 553(b)(3)(b) 
and 29 CFR 1911.5.

List of Subjects in 29 CFR Part 1910

    Motor vehicle safety, occupational safety and health, 
Transportation, Powered industrial trucks.

    Authority: This document was prepared under the authority of 
John L. Henshaw, Assistant Secretary of Labor for Occupational 
Safety and Health, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Washington, DC 20210.

    Accordingly, pursuant to section 6 of the Occupational Safety and 
Health Act of 1970 (29 U.S.C. 655), Section 4 of the Administrative 
Procedure Act (5 U.S.C. 553) and Secretary of Labor's Order No. 5-2002 
(67 FR 65008), OSHA is amending 29 CFR part 1910 as set forth below.

    Signed at Washington, DC this 23rd day of May, 2003.
John L. Henshaw,
Assistant Secretary of Labor.

PART 1910--[AMENDED]

Subpart N--Materials Handling and Storage--[Amended]

0
1.The authority citation for Subpart N of Part 1910 is revised to read 
as follows:

    Authority: Sec. 4, 6, 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. Section 1910.178 also amended under Section 4 
of the Administrative Procedure Act (5 U.S.C. 653). Sections 
1910.176, 1910.178, 1910.179, 1910.180, 1910.181, and 1910.184 also 
issued under 29 CFR part 1911.


Sec.  1910.178  [Amended]

0
2. Paragraph (m)(12) of Sec.  1910.178 is removed and reserved.

[FR Doc. 03-13678 Filed 5-30-03; 8:45 am]
BILLING CODE 4510-26-P