[Federal Register Volume 69, Number 226 (Wednesday, November 24, 2004)]
[Proposed Rules]
[Pages 68706-68711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26046]



[[Page 68705]]

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Part VII





Department of Labor





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Occupational Safety and Health Administration



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29 CFR Part 1910



Updating OSHA Standards Based on National Consensus Standards; General, 
Incorporation by Reference; Hazardous Materials, Flammable and 
Combustible Liquids; General Environmental Controls, Temporary Labor 
Camps; Hand and Portable Powered Tools and Other Hand Held Equipment, 
Guarding of Portable Powered Tools; Welding, Cutting, and Brazing, Arc 
Welding and Cutting; Special Industries, Sawmills; Proposed Rule and 
Direct Final Rule

  Federal Register / Vol. 69 , No. 226 / Wednesday, November 24, 2004 / 
Proposed Rules  

[[Page 68706]]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. S-023A]
RIN 1218-AC08


Updating OSHA Standards Based on National Consensus Standards; 
General, Incorporation by Reference; Hazardous Materials, Flammable and 
Combustible Liquids; General Environmental Controls, Temporary Labor 
Camps; Hand and Portable Powered Tools and Other Hand Held Equipment, 
Guarding of Portable Powered Tools; Welding, Cutting, and Brazing, Arc 
Welding and Cutting; Special Industries, Sawmills

AGENCY: Occupational Safety and Health Administration (OSHA); Labor.

ACTION: Notice of proposed rulemaking.

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SUMMARY: OSHA is issuing this notice of proposed rulemaking to delete 
three references to national consensus standards and two references to 
industry standards that are outdated. Deleting these references will 
not reduce employee protections. By eliminating the outdated 
references, however, OSHA will clarify employer obligations under the 
applicable OSHA standards and reduce administrative burdens on 
employers and OSHA. These revisions are part of an overall effort--also 
explained in today's Federal Register--to update OSHA standards that 
reference, or that include language taken directly from, outdated 
consensus standards.

DATES: Comments and requests for an informal public hearing must be 
submitted by the following dates:
     Hard copy: Your comments or hearing requests must be 
submitted (postmarked or sent) by December 27, 2004.
     Electronic transmission and facsimile: Your comments or 
hearing requests must be sent by December 27, 2004.

ADDRESSES: You may submit written comments or hearing requests to this 
proposed rule--identified by docket number S-023A or RIN number 1218-
AC08--by any of the following methods:
     Federal eRulemaking Portal: http://www. regulations. gov. 
Follow the instructions for submitting comments.
     OSHA Web site: http://ecomments.osha.gov. Follow the 
instructions for submitting comments on OSHA's web page.
     Fax: If your written comments are 10 pages or fewer, you 
may fax them to the OSHA Docket Office at (202) 693-1648.
     Regular mail, express delivery, hand delivery and courier 
service: Submit three copies to the OSHA Docket Office, Docket No. S-
023A, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-
2625, Washington, DC 20210; telephone (202) 693-2350. (OSHA's TTY 
number is (877) 889-5627). OSHA Docket Office hours of operation are 
8:15 a.m. to 4:45 p.m., EST.
    Instructions: All comments received will be posted without change 
to http://dockets.osha.gov, including any personal information 
provided. OSHA cautions you about submitting personal information such 
as social security numbers and birth dates.
    OSHA requests comments on all issues related to this action. OSHA 
also welcomes comments on the Agency's findings that there are not 
negative economic or other regulatory impacts of this action on the 
regulated community. If OSHA receives no significant adverse comment on 
the direct final rule, OSHA will publish a Federal Register document 
confirming its effective date and withdrawing this proposal. Such 
confirmation may include minor stylistic or technical changes to the 
revisions. For the purpose of judicial review, OSHA views the date of 
confirmation of the effective date of the direct final rule as the date 
of issuance. If OSHA receives significant adverse comment on the direct 
final rule, it will withdraw that rule and proceed with this proposed 
rule.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dockets.osha.gov. Contact the OSHA 
Docket Office for information about materials not available through the 
OSHA webpage and for assistance in using the webpage to locate docket 
submissions.

FOR FURTHER INFORMATION CONTACT: For general information and press 
inquiries contact George Shaw, Acting Director, OSHA Office of 
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Washington, DC 20210; telephone: (202) 693-1999. For 
technical inquiries, contact Ted Twardowski, Directorate of Standards 
and Guidance, Room N-3609, OSHA, U.S. Department of Labor, 200 
Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 693-
2070 or fax (202) 693-1663. Copies of this Federal Register notice are 
available from the OSHA Office of Publications, Room N-3101, U.S. 
Department of Labor, 200 Constitution Avenue, N.W., Washington, DC 
20210; telephone: (202) 693-1888. Electronic copies of this Federal 
Register notice, as well as news releases and other relevant documents, 
are available at OSHA's webpage at http://www.osha.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Direct Final Rulemaking
II. Discussion of Revocations
III.Legal Considerations
IV. Preliminary Economic Analysis and Regulatory Flexibility Act 
Certification
V. Paperwork Reduction Act
VI. Federalism
VII. State Plan States
VIII. Unfunded Mandates Reform Act
IX. Authority and Signature

I. Direct Final Rulemaking

    This notice of proposed rulemaking is being published on the same 
day as a companion direct final rule, which is essentially identical to 
this proposal. In direct final rulemaking, an agency publishes a final 
rule in the Federal Register with a statement that, unless a 
significant adverse comment is received within a specified period of 
time, the rule will go into effect. An identical proposed rule is often 
published at the same time. If any significant adverse comments are 
received, the agency withdraws the direct final rule and treats the 
comments as responses to the proposed rule. Direct final rulemaking is 
used where an agency anticipates that a rule will be non-controversial. 
Examples include minor substantive changes to regulations and direct 
incorporations of mandates from new legislation.
    For purposes of this direct final rulemaking, a significant adverse 
comment is one that explains why the revocations would be 
inappropriate, including challenges to OSHA's underlying premise or 
approach. In determining whether a comment necessitates withdrawal of 
the direct final rule, OSHA will consider whether the comment raises an 
issue serious enough to warrant a substantive response in a notice-and-
comment process. A comment recommending additional changes will not be 
considered a significant adverse comment unless the comment states why 
the direct final rule would be ineffective without the addition. If 
timely significant adverse comments are received, the Agency will 
publish a notice of significant adverse comment in the Federal Register 
withdrawing the direct final rule no later than February 22, 2005.
    In the event the direct final rule is withdrawn because of 
significant adverse comment, OSHA intends to proceed with the 
rulemaking by

[[Page 68707]]

addressing the comment and publishing a new final rule. If a 
significant adverse comment is received regarding certain revocations 
included in the direct final rule, but not others, OSHA may (1) 
finalize those revocations that did not receive significant adverse 
comment, and (2) conduct further rulemaking under the proposed rule for 
the proposed revocations that did receive significant adverse comment. 
The comment period for the proposed rule runs concurrently with that of 
the direct final rule. Any significant adverse comment received under 
the companion direct final rule will be treated as comments regarding 
the proposed rule.
    OSHA has determined that the subject of this rulemaking is suitable 
for direct final rulemaking. First, OSHA's changes do not compromise 
the safety of employees. As described below, OSHA's changes will 
eliminate confusion and clarify employer obligations; as such, they 
will enhance employee safety. Second, OSHA's changes will result in no 
additional costs to employers, and may even produce cost savings. 
Third, OSHA's changes are non-controversial. By revoking the references 
to the outdated consensus/industry standards, OSHA is updating its 
requirements in a manner that is consistent with current safety 
practices and does not reduce the safety of employees.

II. Discussion of Revocations

    As explained elsewhere in today's Federal Register, OSHA is 
undertaking a series of regulatory projects to update its standards to 
reflect the current versions of consensus standards. These regulatory 
projects will include updating or revoking consensus standards 
incorporated by reference, and updating regulatory text of current OSHA 
rules that were adopted directly from the language of outdated 
consensus standards. This direct final rulemaking is just the first 
step in OSHA's long-term effort to update or revoke references to 
outdated consensus standards.
    In this document OSHA is proposing to revoke references to three 
national consensus standards and two industry standards.\1\ All of the 
references are to standards issued over 35 years ago, and in one case 
over 60 years ago. Some are no longer available to the public through 
the issuing Standards Development Organization (SDO). Three of the 
references have been withdrawn by their issuing SDOs and not replaced. 
The reasons for OSHA's decision to revoke each of these references are 
set forth below.
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    \1\ The two industry standards OSHA is proposing to revoke--
American Petroleum Institute Standards No. 12A, Specification for 
Oil Storage Tanks with Riveted Shells, Seventh Edition, September 
1951 and Recommended Safe Practices for Gas-Shielded Arc Welding, 
A6.1-1966, American Welding Society--are incorporated by reference 
in OSHA standards on Flammable and Combustible Liquids and Welding, 
Cutting, and Brazing, respectively. These two industry standards 
were adopted by the Agency because they were cited in two national 
consensus standards (NFPA 30-1969 and ANSI Z-49.1-1967) that served 
as sources for the OSHA standards.
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    The Agency has determined that revoking these references will not 
reduce employee protection. OSHA has made sure that employee 
protections are maintained with respect to each OSHA standard affected.

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

    OSHA's standard for Flammable and Combustible Liquids, 29 CFR 
1910.106, incorporates by reference an industry standard that has been 
withdrawn by the issuing SDO and is no longer available to the public 
through the issuing SDO. Existing 1910.106(b)(1)(iii)(a) reads in 
pertinent part as follows:

    (iii) Atmospheric tanks. (a) Atmospheric tanks shall be built in 
accordance with acceptable good standards of design. Atmospheric 
tanks may be built in accordance with the following consensus 
standards that are incorporated by reference as specified in Sec.  
1910.6:
* * * * *
    (2) American Petroleum Institute Standards No. 12A, 
Specification for Oil Storage Tanks with Riveted Shells, Seventh 
Edition, September 1951, or No. 650, Welded Steel Tanks for Oil 
Storage, Third Edition, 1966.

    OSHA is proposing to delete the reference to American Petroleum 
Institute Standard No. 12A, Specification for Oil Storage Tanks with 
Riveted Shells, Seventh Edition, September 1951 (API 12A) in 
1910.106(b)(1)(iii)(a)(2).
    API 12A includes design specifications for tanks with riveted 
shells used for oil storage. OSHA incorporated API 12A into 29 CFR 
1910.106 because it was referenced in NFPA 30-1969, which served as one 
of the sources for the standard. API 12A was withdrawn in 1974. The 
issuing SDO has not replaced it and has not incorporated its provisions 
into another consensus standard. Further, API 12A is no longer publicly 
available through the American Petroleum Institute.
    API 12A was included in 1910.106(b)(1)(iii)(a) to provide employers 
with one means of complying with the general requirement for 
atmospheric tanks to be ``built in accordance with acceptable good 
standards of design.'' The use of API 12A was not required by the 
standard. OSHA's revocation of the 1951 standard does not change an 
employer's responsibility for constructing properly designed 
atmospheric tanks under 1910.106(b)(1)(iii)(a).
    The other standards referenced in Sec.  1910.106 have been updated 
by their respective organizations in recent years. OSHA intends to 
review these standards and update its references to them, as 
appropriate, in the future. In this limited rulemaking, however, OSHA 
is proposing to revise 1910.106(b)(1)(iii)(a)(2) to read as follows:

    American Petroleum Institute Standard No. 650, Welded Steel 
Tanks for Oil Storage, Third Edition, 1966.

2. 29 CFR 1910.142(c)(4)

    The OSHA standard for Temporary Labor Camps, 29 CFR 1910.142, 
incorporates by reference a national consensus standard that was issued 
60 years ago. This referenced standard was withdrawn by the issuing SDO 
in 1972 and has not been replaced. Existing 1910.142(c)(4) reads:

    Where water under pressure is available, one or more drinking 
fountains shall be provided for each 100 occupants or fraction 
thereof. The construction of drinking fountains shall comply with 
ANSI Standard Specifications for Drinking Fountains, Z4.2-1942, 
which is incorporated by reference as specified in Sec.  1910.6. 
Common drinking cups are prohibited.

OSHA is proposing to delete from this provision the requirement that 
drinking fountains comply with ANSI Z4.2-1942.
    ANSI Z4.2-1942 was issued in 1942. It provides guidance concerning 
the construction of drinking fountains based on the technology and 
construction practices that existed in 1942. ANSI Z4.2-1942 contains 
ten specific recommendations regarding the construction of drinking 
fountains. All of these recommendations use advisory ``should'' 
language. Because the provisions are advisory only, they are 
unenforceable. See 49 FR 5318, February 10, 1984; cf. Marshall v. 
Pittsburgh-Des Moines Steel Company, 584 F.2d 638, 643-44 (3d. Cir. 
1978).
    OSHA has concluded that the reference to ANSI Z4.2-1942 should be 
removed for two primary reasons. First, as stated above, because the 
specific recommendations in ANSI Z4.2-1942 use advisory language, they 
are unenforceable.
    Second, referencing recommendations issued over 60 years ago for 
the construction of drinking fountains does not enhance the safety and 
health of employees. The technology for constructing drinking fountains 
has changed significantly since the 1940's. Since 1942, a number of 
drinking

[[Page 68708]]

fountain units have become available to employers that, while not 
strictly manufactured in accordance with ANSI Z4.2-1942, are 
constructed pursuant to good engineering practices and are safe to use 
at temporary labor camps. It does not serve employers or employees to 
reference construction specifications that do not consider this new 
technology.
    For these reasons, OSHA is proposing to revise paragraph 
1910.142(c)(4) to read:

    Where water under pressure is available, one or more drinking 
fountains shall be provided for each 100 occupants or fraction 
thereof. Common drinking cups are prohibited.

3. 29 CFR 1910.243(e)(1)(i)

    Paragraph (e)(1)(i) of the OSHA standard for the Guarding of 
Portable Power Tools, 29 CFR 1910.243, incorporates a 1968 national 
consensus standard for power lawnmowers:

    Power lawnmowers of the walk-behind, riding-rotary, and reel 
power lawnmowers designed for sale to the general public shall meet 
the design specifications in ``American National Standard Safety 
Specifications for Power Lawnmowers'' ANSI B71.1-X1968, which is 
incorporated by reference as specified in Sec.  1910.6. These 
specifications do not apply to a walk-behind mower which has been 
converted to a riding mower by the addition of a sulky. Also, these 
specifications do not apply to flail mowers, sicklebar mowers, or 
mowers designed for commercial use.

OSHA is proposing to revoke the reference to American National Standard 
Safety Specifications for Power Lawnmowers ANSI B71.1-X1968 (ANSI 
B71.1-1968) in this provision and replace it with a reference to the 
general machine guarding requirements contained in 29 CFR 1910.212. 
OSHA is also proposing to remove the sentences that describe the types 
of mowers for which the specifications in ANSI B71.1-1968 do not apply.
    ANSI B71.1-1968 provides safety specifications for walk-behind and 
riding rotary motors, and walk-behind and rotary reel mowers ``designed 
for sale to the general public.'' ANSI B71.1-1968 states that it is not 
intended to cover sulky-type mowers, flail mowers, sicklebar mowers, or 
mowers designed for commercial use. ANSI B71.1-1968, p. 7.
    ANSI has updated and expanded the scope of B71.1 significantly 
several times since 1968. Whereas the 1968 version was approximately 10 
pages long, the 1998 edition is approximately 60 pages long. The 1998 
edition contains specifications for a number of different walk-behind 
and ride-on mowers, including: (1) Reel and rotary walk-behind power 
lawn mowers, (2) reel and rotary ride-on power lawn mowers, (3) ride-on 
power lawn tractors with mower attachments, (4) ride-on power lawn and 
garden tractors with mower attachments, and (5) lever steer ride-on 
mowers. In addition, while the 1968 version was not intended to apply 
to sulky-type, flail, and sicklebar mowers, as well as mowers designed 
for commercial use, the 1998 version is ``intended to apply to products 
specifically intended as consumer products for the personal use of a 
consumer around a house.'' Its requirements ``are not intended to apply 
to commercial products customarily used by hired operators. * * *'' 
ANSI B71.1-1998, p. 1.
    When OSHA promulgated 1910.243(e), it incorporated many of the 
specifications contained in ANSI B71.1-1968 directly into the 
regulatory text. In fact, the vast majority of the requirements for 
walk-behind and riding rotary mowers found in ANSI B71.1-1968 are 
included in 1910.243(e). The only requirements not included directly in 
1910.243(e) are those dealing with the testing of certain mowers and a 
handful of provisions concerning reel mowers. OSHA also incorporated 
the scope section of ANSI B71.1-1968 into paragraph 1910.243(e)(1)(i). 
Paragraph 1910.243(e)(1)(i) thus requires power lawnmowers designed for 
sale ``to the general public'' to follow ANSI B71.1-1968, but not power 
lawnmowers designed ``for commercial use''; power lawnmowers designed 
for commercial use must follow the guarding requirements of 29 CFR 
1910.212(a)(1) and (a)(3)(ii). See Memorandum from John Miles to 
Regional Administrators, ``Misapplication of Power Lawnmower Standard 
29 CFR 1910.243(e),'' 1986 (Ex. 2-1).
    In order to simplify and clarify the scope and coverage of Sec.  
1910.243, OSHA is proposing to delete the reference to ANSI B71.1-1968 
and the final two sentences of paragraph 1910.243(e)(1). The reference 
to ANSI B71.1-1968 in paragraph 1910.243(e)(1) is particularly 
confusing, given the limitations of the scope of the consensus 
standard. It is difficult for employers to determine which lawnmowers 
are designed for sale to ``the general public'' (covered by ANSI B71.1-
1968) and which are designed ``for commercial use'' (not covered by 
ANSI B71.1-1968). This distinction is also not particularly relevant to 
protecting employees from the hazards associated with operating power 
lawnmowers.
    OSHA is proposing to replace the reference to ANSI B71.1-1968 with 
a requirement for employers to ensure that all power lawnmowers meet 
the minimum guarding requirements of 29 CFR 1910.212. This change does 
not significantly alter the existing requirements for power lawnmowers 
``designed for commercial use,'' which, as stated above, are already 
required to comply with paragraphs 1910.212(a)(1) and (a)(3)(ii). In 
addition, it does not markedly alter any existing requirements for 
power lawnmowers ``designed for sale to the general public.'' Employers 
must still ensure that power lawnmowers comply with the requirements 
contained in 1910.243(e), which as stated above, includes the vast 
majority of the provisions from ANSI B71.1-1968. Ensuring that power 
lawnmowers are in compliance with 1910.243(e) and the guarding 
provisions of 29 CFR 1910.212, will adequately protect employees from 
the hazards associated with operating this machinery. In addition, we 
are aware that under Consumer Products Safety Commission standards 
issued in 1979, manufacturers of certain power lawnmowers that are 
``consumer products'' must meet specific design requirements for such 
lawnmowers, including guarding requirements. These standards provide an 
additional set of protections for employees who use such products on 
the job.
    Finally, OSHA considered updating the 1968 ANSI reference to the 
1998 version of ANSI B71.1, but determined that doing so would not 
clarify the standard. As stated above, the 1998 version applies ``to 
products specifically intended as consumer products for the personal 
use of a consumer around a house,'' and not to products ``customarily 
used by hired operators.'' For OSHA purposes, this scope would raise 
additional issues for compliance that are not encountered under the 
existing OSHA standard. OSHA believes that deleting the reference and 
replacing it with a reference to 29 CFR 1910.212 will both retain the 
existing degree of employee protection, and remove a continuing source 
of confusion as to the scope of the referenced standard.
    Accordingly, OSHA is proposing to revise 1910.243(e)(1)(i) to read 
as follows:

    Power lawnmowers of the walk-behind, riding rotary, and reel 
power lawnmowers shall be guarded in accordance with the machine 
guarding requirements in 29 CFR 1910.212, General requirements for 
all machines.

4. 29 CFR 1910.254(d)(1)

    The existing OSHA standard for Arc Welding and Cutting, 29 CFR 
1910.254, incorporates by reference a 38-year old

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industry standard that has been merged with a more recent national 
consensus standard. Existing 1910.254(d)(1) reads as follows:

    General. Workmen assigned to operate or maintain arc welding 
equipment shall be acquainted with the requirements of this section 
and with 1910.252 (a), (b), and (c) of this part; if doing gas-
shielded arc welding, also Recommended Safe Practices for Gas-
Shielded Arc Welding, A6.1-1966, American Welding Society, which is 
incorporated by reference as specified in Sec.  1910.6.

For reasons discussed below, OSHA is proposing to delete the reference 
to Recommended Safe Practices for Gas-Shielded Arc Welding, A6.1-1966, 
American Welding Society (AWS A6.1-1966).
    AWS A6.1-1966 discusses the potential hazards associated with gas-
shielded arc welding and gives recommendations (non-mandatory) on 
personal protective equipment (PPE) and engineering controls to protect 
employees against such hazards. Compliance with AWS A6.1-1966 was 
required by ANSI Z49.1-1967, which OSHA used as a source for its 
welding standards in 29 CFR 1910.254. In 1973, AWS A6.1-1966 was 
formally merged into ANSI Z49.1 by the consensus standard developers.
    OSHA is proposing to revoke the reference to AWS A6.1-1966 because 
that industry standard is outdated and because virtually all of its 
coverage is provided elsewhere in OSHA's welding standards. For 
example, many of the safety-related practices discussed in AWS A6.1-
1966 are specifically addressed in 1910.252(a), (b), and (c). While AWS 
A6.1-1966 gives recommendations for eye protection and protective 
clothing for employees performing gas-shielded arc welding, 1910.252(b) 
mandates the specific types of personal protective equipment (PPE) that 
welders must use. Similarly, AWS A6.1-1966 includes a general 
recommendation that metal fumes ``can'' be controlled by general 
ventilation and local exhaust ventilation. Section 1910.252(c), by 
contrast, provides detailed requirements on ventilation and other means 
of protecting welders from inhalation hazards. Further, while AWS A6.1-
1966 discusses briefly the danger associated with trichloroethylene and 
perchloroethylene decomposition, 1910.252(c) also discusses the need to 
keep trichloroethylene and perchloroethylene out of atmospheres 
``penetrated by the ultraviolet radiation of gas-shielded welding 
operations.'' 29 CFR 1910.252(c)(11)(ii).
    Paragraph 1910.254(d)(1) requires employees performing arc welding 
to be ``acquainted with'' 1910.252(a), (b), and (c). These three 
paragraphs cover virtually all of the recommendations that are found in 
AWS A6.1-1966 and actually go beyond most of them. In light of this, 
OSHA does not believe it is necessary to continue to reference the AWS 
standard in Sec.  1910.254(d)(1).
    OSHA also notes that employees performing gas-shielded arc welding 
are protected from many of the underlying hazards discussed in AWS 
A6.1-1966 through other applicable OSHA standards. For example, 
exposures to virtually all of the toxic or hazardous substances that 
are discussed in AWS A6.1-1966 are regulated by Subpart Z (Toxic and 
Hazardous Substances) of Part 1910.
    Finally, the hazard information included in AWS A6.1-1966 is 
outdated, particularly compared to the information that employers are 
already required to provide to employees under OSHA's hazard 
communication standard, 29 CFR 1910.1200.
    For these reasons, OSHA is proposing to revise paragraph 
1910.254(d)(1) to read:

    General. Workmen assigned to operate or maintain arc welding 
equipment shall be acquainted with the requirements of this section 
and with 1910.252 (a), (b), and (c) of this part.

5. 29 CFR 1910.265(c)(31)(i)

    The existing OSHA standard for Sawmills, 29 CFR 1910.265, 
incorporated by reference a consensus standard that is over 35 years 
old, has been withdrawn by the issuing SDO, and is included in an 
unenforceable provision. Existing 1910.265(c)(31)(i) reads:

    Hazardous crossings. Railroad tracks and other hazardous 
crossings shall be plainly posted and appropriate traffic control 
devices (American National Standard D8.1-1967 for Railroad-Highway 
Grade Crossing Protection, which is incorporated by reference as 
specified in Sec.  1910.6) should be utilized.

OSHA is proposing to delete the provision that employers ``should'' use 
``appropriate traffic control devices,'' as set forth in ANSI D8.1-
1967.
    ANSI D8.1-1967 provides recommendations for signaling, marking, and 
controlling access to railroad-highway crossings. It does not address 
hazards specifically associated with crossings in sawmills or other 
special industries. Rather, the recommendations ``are in the interest 
of establishing uniformity in traffic control and safety devices at 
railroad-highway grade crossings.'' ANSI D8.1-1967, p. 4. ANSI withdrew 
the standard on January 20, 1981 and did not replace it.
    OSHA references ANSI D8.1-1967 in an advisory provision; as stated 
earlier, advisory provisions in mandatory standards are unenforceable. 
As OSHA found during an earlier rulemaking to delete ``should'' 
provisions (47 FR 23477, May 28, 1982; 49 FR 5321, February 10, 1984), 
removing such provisions clarifies employer obligations and enhances 
OSHA enforcement capabilities. In addition, in the present situation, 
referencing a 37-year old consensus standard that was intended to 
address railroad and highway grade crossings--not crossings 
specifically in sawmills--adds little value to employers and employees 
in the sawmill industry. At the same time, because OSHA is retaining 
the mandatory provision in paragraph 1910.265(c)(3)(i) that employers 
plainly post railroad tracks and other hazardous crossings, employees 
will continue to be alerted to potential hazards at these dangerous 
areas.
    OSHA is thus proposing to revise the provision to read:

    Hazardous crossings. Railroad tracks and other hazardous 
crossings shall be plainly posted.

III. Legal Considerations

    The purpose of the Occupational Safety and Health Act of 1970, 29 
U.S.C. 651 et seq., is ``to assure so far as possible every working man 
and woman in the nation safe and healthful working conditions and to 
preserve our human resources.'' 29 U.S.C. 651(b). To achieve this goal 
Congress authorized the Secretary of Labor to promulgate and enforce 
occupational safety and health standards. 29 U.S.C. 655(b), 654(b). A 
safety or health standard is a standard ``which requires conditions, or 
the adoption or use of one or more practices, means, methods, 
operations, or processes, reasonably necessary or appropriate to 
provide safe or healthful employment or places of employment.'' 29 
U.S.C. 652(8). A standard is reasonably necessary or appropriate within 
the meaning of Section 652(8) if, among other things, a significant 
risk of material harm exists in the workplace and the proposed standard 
would substantially reduce or eliminate that workplace risk.
    This proposed rule will not reduce the employee protections put 
into place by the standards being revised; the intent of this proposed 
rule is to revoke references to consensus standards that are outdated, 
no longer represent the state-of-the-art in workplace safety, and are 
confusing to employers and employees. It is therefore unnecessary to 
determine significant risk, or the extent to which the proposed rule 
would

[[Page 68710]]

reduce that risk, as would typically be required by Industrial Union 
Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 
(1980).

IV. Preliminary Economic Analysis and Regulatory Flexibility Act 
Certification

    This action is not economically significant within the context of 
Executive Order 12866, or a ``major rule'' under the Unfunded Mandates 
Reform Act or Section 801 of the Small Business Regulatory Enforcement 
Fairness Act. The rulemaking would impose no additional costs on any 
private or public sector entity, and does not meet any of the criteria 
for an economically significant or major rule specified by the 
Executive Order or relevant statutes.
    This action simply deletes or revises a number of provisions in 
OSHA standards that are outdated. Therefore, the Agency concludes that 
the proposed rule would not impose any additional costs on these 
employers; consequently, the proposal requires no preliminary economic 
analysis. Furthermore, because the proposed rule imposes no costs on 
employers, OSHA certifies that it would not have a significant impact 
on a substantial number of small entities; accordingly, the Agency need 
not prepare an initial regulatory flexibility analysis under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

V. Paperwork Reduction Act

    This action does not impose new information collection requirements 
for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-30.

VI. Federalism

    OSHA has reviewed this proposed rule in accordance with the 
Executive Order on Federalism (Executive Order 13132, 64 FR 43255, 
August 10, 1999), which requires that agencies, to the extent possible, 
refrain from limiting State policy options, consult with States prior 
to taking any actions that would restrict State policy options, and 
take such actions only when there is clear constitutional authority and 
the presence of a problem of national scope. Executive Order 13132 
provides for preemption of State law only if there is a clear 
congressional intent for the Agency to do so. Any such preemption is to 
be limited to the extent possible.
    Section 18 of the OSH Act (29 U.S.C. 651 et seq.) expresses 
Congress' intent to preempt State laws where OSHA has promulgated 
occupational safety and health standards. Under the OSH Act, a State 
can avoid preemption on issues covered by Federal standards only if it 
submits, and obtains Federal approval of, a plan for the development of 
such standards and their enforcement (State-Plan State). 29 U.S.C. 667. 
Occupational safety and health standards developed by such State-Plan 
States must, among other things, be at least as effective in providing 
safe and healthful employment and places of employment as the Federal 
standards. Subject to these requirements, State-Plan States are free to 
develop and enforce under State law their own requirements for safety 
and health standards.
    This proposed rule complies with Executive Order 13132. As Congress 
has expressed a clear intent for OSHA standards to preempt State job 
safety and health rules in areas addressed by OSHA standards in States 
without OSHA-approved State Plans, this action limits State policy 
options in the same manner as all OSHA standards. In State with OSHA-
approved State Plans, this action does not significantly limit State 
policy options.

VII. State Plan States

    When Federal OSHA promulgates a new standard or more stringent 
amendment to an existing standard, the 26 States or U.S. Territories 
with their own OSHA-approved occupational safety and health plans must 
revise their standards to reflect the new standard or amendment, or 
show OSHA why there is no need for action, e.g., because an existing 
State standard covering this area is already ``at least as effective'' 
as the new Federal standard or amendment. 29 CFR 1953.5(a). The State 
standard must be at least as effective as the final Federal rule, must 
be applicable to both the private and public (State and local 
government employees) sectors, and must be completed within six months 
of the publication date of the final Federal rule. These 26 States and 
territories are: Alaska, Arizona, California, Connecticut (plan covers 
only State and local government employees), Hawaii, Indiana, Iowa, 
Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, New Jersey 
(plan covers only State and local government employees), New York (plan 
covers only State and local government employees), North Carolina, 
Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, 
Virginia, Virgin Islands (plan covers only territorial and local 
government employees), Washington, and Wyoming.

VIII. Unfunded Mandates Reform Act

    This proposed rule, which amends subpart A--General (29 CFR 
1910.6), subpart H--Hazardous Materials (29 CFR 1910.106), subpart J--
General Environmental Controls (29 CFR 1910.142), subpart P--Hand and 
Portable Powered Tools and Other Hand-Held Equipment (29 CFR 1910.243), 
subpart Q--Welding, Cutting and Brazing (29 CFR 1910.254), and subpart 
R--Special Industries (29 CFR 1910.265), has been reviewed in 
accordance with the Unfunded Mandates Reform Act of 1995 (UMRA). 2 
U.S.C. 1501 et seq.
    For the purposes of the UMRA, the Agency certifies that this 
proposed rule does not impose any Federal mandate that may result in 
increased expenditures by State, local, or tribal governments, or 
increased expenditures by the private sector, of more than $100 million 
in any year.

List of Subjects in Part 1910

    Flammable materials, Hazardous substances, Occupational safety and 
health, Signs and symbols.

IX. Authority and Signature

    This document was prepared under the direction 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. It is issued pursuant to sections 4, 6, and 8 of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), 
Secretary of Labor's Order 5-2002 (67 FR 65008), and 29 CFR Part 1911.

    Signed at Washington, DC, this 17th day of November, 2004.
John L. Henshaw,
Assistant Secretary of Labor.

Proposed Amendments to Standards

    The Occupational Safety and Health Administration is proposing to 
amend part 1910 of title 29 of the Code of Federal Regulations as set 
forth below:

PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS

Subpart A--General

    1. The authority citation for subpart A of part 1910 is revised to 
read as follows:

    Authority: Secs. 4, 6, 8, Occupational Safety and Health Act of 
1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order Numbers 
12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 
FR 9033), 6-96 (62 FR 111), or 5-2002 (67 FR 65008), as applicable.
    Sections 1910.7 and 1910.8 also issued under 29 CFR part 1911. 
Section 1910.7(f) also issued under 31 U.S.C. 9701, 29 U.S.C. 9a, 5 
U.S.C. 553; Pub. L. 106-113 (113 Stat. 1501A-222); and OMB Circular 
A-25 (dated July 8, 1993) (58 FR 38142, July 15, 1993).

[[Page 68711]]

Sec.  1910.6  [Amended]

    2. Section 1910.6 is amended by removing and reserving paragraphs 
(e)(31); (e)(35); (e)(48); (f)(1); and (i)(2).

Subpart H--Hazardous Materials

    3. The authority citation for subpart H of part 1910 is revised to 
read as follows:

    Authority: Sections 4, 6, and 8 of the Occupational Safety and 
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's 
Orders Nos. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 
35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 
or 5-2002 (67 FR 65008), as applicable; and 29 CFR part 1911.
    Sections 1910.103, 1910.106 through 1910.111, and 1910.119, 
1910.120, and 1910.122 through 126 also issued under 29 CFR part 
1911.
    Section 1910.119 also issued under section 304, Clean Air Act 
Amendments of 1990 (Pub. L. 101-549), reprinted at 29 U.S.C. 655 
Note.
    Section 1910.120 also issued under section 126, Superfund 
Amendments and Reauthorization Act of 1986 as amended (29 U.S.C. 655 
Note), and 5 U.S.C. 553.

    4. Paragraph (b)(1)(iii)(a)(2) of Sec.  1910.106 is revised to read 
as follows:


Sec.  1910.106  Flammable and combustible liquids.

* * * * *
    (b) * * *
    (1) * * *
    (iii) * * *
    (a) * * *
    (2) American Petroleum Institute Standards No. 650, Welded Steel 
Tanks for Oil Storage, Third Edition, 1966.
* * * * *

Subpart J--General Environmental Controls

    5. The authority citation for subpart J of part 1910 is revised to 
read as follows:

    Authority: Secs. 4, 6, and 8, Occupational Safety and Health Act 
of 1970, 29 U.S.C. 653, 655, 657; Secretary of Labor's Order No. 12-
71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 
9033), 6-96 (62 FR 111), or 5-2002 (67 FR 65008), as applicable.
    Sections 1910.141, 1910.142, 1910.145, 1910.146, and 1910.147 
also issued under 29 CFR part 1911.

    6. Paragraph (c)(4) of Sec.  1910.142 is revised to read as 
follows:


Sec.  1910.142  Temporary labor camps.

* * * * *
    (c) * * *
    (4) Where water under pressure is available, one or more drinking 
fountains shall be provided for each 100 occupants or fraction thereof. 
Common drinking cups are prohibited.
* * * * *

Subpart P--Hand and Portable Powered Tools and Other Hand Held 
Equipment

    7. The authority citation for Subpart P of Part 1910 is revised to 
read as follows:

    Authority: Sections 4, 6, and 8 of the Occupational Safety and 
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's 
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 
35736), 1-90 (55 FR 9033), or 5-2002 (67 FR 65008), as applicable; 
29 CFR part 1911.
    Section 1910.243 also issued under 29 CFR part 1910.

    8. Paragraph (e)(1)(i) of Sec.  1910.243 is revised to read as 
follows:


Sec.  1910.243  Guarding of portable power tools.

* * * * *
    (e) * * *
    (1) * * *
    (i) Power lawnmowers of the walk-behind, riding-rotary, and reel 
power lawnmowers shall be guarded in accordance with the machine 
guarding requirements in 29 CFR 1910.212, General requirements for all 
machines.
* * * * *

Subpart Q--Welding, Cutting, and Brazing

    9. The authority citation for Subpart Q of Part 1910 is revised to 
read as follows:

    Authority: Secs. 4, 6, and 8 of the Occupational Safety and 
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's 
Orders 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 
1-90 (55 FR 9033), 6-96 (62 FR 111), or 5-2002 (67 FR 65008), as 
applicable; and 29 CFR part 1911.

    10. Paragraph (d)(1) of Sec.  1910.254 is revised to read as 
follows:


Sec.  1910.254  Arc welding and cutting.

* * * * *
    (d) * * *
    (1) General. Workmen assigned to operate or maintain arc welding 
equipment shall be acquainted with the requirements of this section and 
with 1910.252(a), (b), and (c) of this part.
* * * * *

Subpart R--Special Industries

    11. The authority citation for Subpart R of Part 1910 is revised to 
read as follows:

    Authority: Sections 4, 6, and 8 of the Occupational Safety and 
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's 
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 
35736), 6-96 (62 FR 111), 3-2000 (65 FR 50017), or 5-2002 (67 FR 
65008), as applicable; and 29 CFR part 1911.

    12. Paragraph (c)(31)(i) of Sec.  1910.265 is revised to read as 
follows:


Sec.  1910.265  Sawmills.

* * * * *
    (c) * * *
    (31) * * *
    (i) Hazardous crossings. Railroad tracks and other hazardous 
crossings shall be plainly posted.
* * * * *
[FR Doc. 04-26046 Filed 11-23-04; 8:45 am]
BILLING CODE 4510-26-P