[Federal Register Volume 71, Number 209 (Monday, October 30, 2006)]
[Rules and Regulations]
[Pages 63238-63245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-8971]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. H054A]
RIN 1218-AB45


Occupational Exposure to Hexavalent Chromium

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

ACTION: Final rule.

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SUMMARY: The Occupational Safety and Health Administration (OSHA) is 
making a minor amendment to its final rule governing occupational 
exposure to hexavalent chromium in general industry, which was 
promulgated on February 28, 2006. This amendment implements a 
settlement agreement (Agreement) entered into among OSHA, the Surface 
Finishing Industry Council (SFIC), Public Citizen Health Research Group 
(HRG), and the United Steel, Paper and Forestry, Rubber, Manufacturing, 
Energy, Allied Industrial and Service Workers International Union 
(Steelworkers) on October 25, 2006, to resolve SFIC's legal challenge 
to the standard.

[[Page 63239]]


DATES: The amendment in this document will be effective November 29, 
2006. Declarations of Party Status must be received by OSHA or 
postmarked on or before November 30, 2006.

ADDRESSES: In accordance with the instructions in Section IV of this 
notice, Declarations of Party Status must be submitted to Richard 
Fairfax, Director of Enforcement Programs, Occupational Safety and 
Health Administration, 200 Constitution Ave., NW., Room N3119, 
Washington, DC 20210; Fax: (202) 693-1681.

FOR FURTHER INFORMATION CONTACT: Richard Fairfax, Director of 
Enforcement Programs, Occupational Safety and Health Administration, 
200 Constitution Ave., NW., Room N3119, Washington, DC 20210; telephone 
(202) 693-2190.

SUPPLEMENTARY INFORMATION:

I. Background

    OSHA promulgated its final rule governing occupational exposure to 
hexavalent chromium (also written as chromium (VI) or Cr(VI)) in 
general industry (the standard) on February 28, 2006. See 71 FR 10100-
385. The standard requires employers to use feasible engineering and 
work practice controls to reduce and maintain employee exposures to 
Cr(VI) at or below the permissible exposure limit (PEL) of 5 micrograms 
per cubic meter of air (5 [mu]g/m3), calculated as an 8-hour 
time-weighted average (TWA). If an employer can demonstrate that 
feasible engineering and work practice controls are not sufficient to 
reduce exposures to or below the PEL, it must use those controls to 
attain the lowest levels achievable and then provide affected employees 
with supplemental respiratory protection. 29 CFR 1910.1026(f). The 
standard also requires employers to provide respiratory protection for 
employees during periods when feasible engineering and work practice 
controls are being installed, during emergencies, and in certain other 
situations. 29 CFR 1910.1026(g)(1). Although employers have until May 
31, 2010, to implement feasible engineering controls, they must begin 
to comply with respirator requirements by November 27, 2006 (for 
employers with 20 or more employees) and May 30, 2007 (for employers 
with 19 or fewer employees). 29 CFR 1910.1026(n).
    SFIC, a trade association whose members are primarily surface- and 
metal-finishing (electroplating) job shops, filed a timely petition for 
review of the standard in the United States Court of Appeals for the 
Eleventh Circuit. SFIC's petition was consolidated with other petitions 
for review of the standard, including one filed jointly by HRG and the 
Steelworkers on behalf of workers affected by the standard, in the 
United States Court of Appeals for the Third Circuit.
    SFIC, OSHA, HRG and the Steelworkers engaged in settlement 
negotiations to resolve SFIC's challenge to the standard. The 
negotiations resulted in OSHA, SFIC, HRG, and the Steelworkers agreeing 
to the settlement being attached to the standard as Appendix A. 
Eligible SFIC members and other metal- and surface-finishing job shop 
facilities may become parties to this Agreement by following the 
instructions in Section IV of this notice.
    The Agreement creates an optional, alternative compliance timetable 
for metal- and surface-finishing operations at eligible worksites. 
Facilities that elect to participate must implement engineering 
controls on an expedited schedule (by December 31, 2008), but will have 
relief from certain respirator requirements in the interim. (See 
Section II below for a detailed summary of the Agreement.) This is not 
a material change to the substantive requirements of the standard, and 
therefore the amendment does not require a new finding of significant 
risk. See Industrial Union Department, AFL-CIO v. American Petroleum 
Institute, 448 U.S. 607 (1980). See also 71 FR at 10221-25. Moreover, 
this Agreement is conceptually consistent with findings OSHA made 
during the original rulemaking--namely that engineering controls are 
preferable to respiratory protection and that electroplating job shops 
will face unique economic feasibility issues in complying with the PEL 
of 5 [mu]g/m\3\ using either respirators or engineering controls.
    In the preamble to the final standard, OSHA explained its 
longstanding preference for engineering and work practice controls over 
respiratory protection. The agency concluded that respirators do not 
``provide the same degree of protection'' as other types of controls. 
71 FR at 10335. OSHA stated that the ``use of respirators in the 
workplace presents a number of independent safety and health 
concerns.'' Id. Those concerns include the impairment of vision and 
communication, the physiological burdens associated with the weight of 
the respirator, and the increased breathing resistance experienced 
during respirator use. Id. OSHA also concluded that ``respirators are 
inherently less reliable than engineering and work practice controls'' 
insofar as the effectiveness of respirators depends on appropriate 
selection and fit, proper use, and proper maintenance--all conditions 
that ``can be difficult to attain, and are subject to human error.'' 
Id. In contrast, OSHA found that ``[e]ngineering controls are reliable, 
provide consistent levels of protection to a large number of workers, 
can be monitored, allow for predictable performance levels, and can 
efficiently remove a toxic substance from the workplace.'' 71 FR at 
10345.
    In its economic feasibility analysis, OSHA concluded that the 
record did not support a finding that the proposed PEL of 1 [mu]g/m\3\ 
was economically feasible for electroplating job shops. Based upon the 
evidence in the record, OSHA found that the cost of compliance with the 
proposed PEL of 1 [mu]g/m\3\ could jeopardize the competitive structure 
of the industry. Although OSHA ultimately concluded that the final PEL 
of 5 [mu]g/m\3\ is economically feasible for electroplating job shops, 
the agency also found that the cost of compliance will have a very 
significant adverse economic impact on this industry. 71 FR at 10301. 
OSHA considered whether permitting the use of respirators in lieu of 
engineering controls would alleviate any of the economic burden on this 
industry, but concluded that for these facilities ``respirator use 
would be almost as expensive as using engineering controls.'' 71 FR at 
10310. See also 71 FR at 10301.
    In light of the aforementioned findings, OSHA considers it 
reasonable to provide eligible facilities with the option of devoting 
their resources to implementing engineering controls on an expedited 
basis instead of to interim respirator requirements. OSHA believes that 
the Agreement and corresponding amendment to the standard will have the 
positive result of expediting the installation of engineering controls 
for a narrow group of employers with unique economic feasibility 
concerns. Although the Agreement will provide participating 
electroplating facilities with temporary, limited relief from short-
term respirator requirements, provisions in the Agreement (discussed 
more fully in Section II of this notice) ensure that those facilities 
will still provide respirators in certain situations, e.g., for certain 
metal-finishing tasks when exposures exceed the PEL and for any other 
employees who request respiratory protection.
    In entering into the Agreement and adopting this amendment, OSHA 
did not make and is not presently making any representations regarding 
its enforcement of the hexavalent chromium standard in facilities that 
are not parties to the Agreement. Moreover,

[[Page 63240]]

neither the Agreement nor the corresponding amendment to the standard 
have any relationship to OSHA's enforcement of any other occupational 
safety or health standards.

II. Explanation of the Agreement

Amendment to the Compliance Date Provisions

    OSHA is amending the hexavalent chromium standard for general 
industry (29 CFR 1910.1026) as follows:
    (1) Existing paragraph 1910.1026(n)(3) is being amended to clarify 
that facilities that are parties to the Agreement are covered by the 
compliance deadline in new paragraph (n)(4) instead of the otherwise 
applicable May 31, 2010, compliance deadline for engineering controls;
    (2) A new paragraph, 1910.1026(n)(4), is being added to the 
standard to provide that facilities that are parties to the Agreement 
must implement feasible engineering controls by December 31, 2008; and
    (3) The Agreement between OSHA, SFIC, HRG, and the Steelworkers is 
being attached to the standard as Appendix A.
    Facilities that become parties to the Agreement must comply with 
all provisions of the standard in accordance with the compliance dates 
set forth in 29 CFR 1910.1026(n), as amended, except that in certain 
circumstances (described below) OSHA will not enforce respirator 
requirements in those facilities prior to December 31, 2008.

Accelerated Implementation of Engineering Controls

    Facilities that become parties to the Agreement must implement 
those feasible engineering controls necessary to reduce hexavalent 
chromium levels at their facilities to or below the 5 [mu]g/m\3\ PEL, 
in accordance with 29 CFR 1910.1026(f)(1), by December 31, 2008. In 
fulfilling this obligation, the facilities may select from the 
engineering and work practice controls listed in Exhibit A to this 
Agreement or adopt any other controls.

Respirator Enforcement

    With the exception of the six classes of employees described below, 
OSHA has agreed not to enforce the respirator protection provisions at 
29 CFR 1910.1026(f) and (g) prior to December 31, 2008, for metal- and 
surface-finishing operations in facilities that are parties to, and are 
complying with, the Agreement. The six classes of employees for which 
OSHA will enforce all of the standard's respiratory protection 
provisions are as follows:
    (1) Employees who are exposed to Cr(VI) in excess of the PEL while 
performing tasks described in Exhibit B to the Agreement. These tasks, 
as described more completely in Exhibit B, include Cr(VI) chemical 
additions, Cr(VI) preparation and mixing, Cr(VI) tank cleaning, and 
Cr(VI) painting operations.
    (2) Through November 30, 2007, employees whose exposures to Cr(VI) 
exceed an interim ``respirator threshold'' of 20 [mu]g/m\3\ (measured 
as an 8-hour time-weighted average).
    (3) Beginning December 1, 2007, employees whose exposures to Cr(VI) 
exceed an interim ``respirator threshold'' of 12.5 [mu]g/m\3\ (measured 
as an 8-hour time-weighted average).
    (4) Employees who are exposed to Cr(VI) and request a respirator.
    (5) Any other employees who are required by their employers to wear 
a respirator.
    (6) Employees with exposures for which respirators were required 
under the previous Cr(VI) standard at 29 CFR 1910.1000, and any other 
employees covered by respirator programs in effect on May 30, 2006.

Compliance Plan and Monitoring

    The standard requires all employers, including facilities that are 
parties to the Agreement, to make an initial exposure determination for 
each employee exposed to Cr(VI). Facilities that are parties to the 
Agreement may do this using either the monitoring option described at 
29 CFR 1910.1026(d)(2)(i) (which involves taking a sufficient number of 
personal breathing zone air samples to accurately characterize full 
shift exposure on each shift, for each job classification, in each work 
area) or the performance-oriented option described at 29 CFR 
1910.1026(d)(3) (which involves using any combination of air monitoring 
data, historical monitoring data, or objective data sufficient to 
accurately characterize employee exposures).
    Thereafter, each facility that is a party to the Agreement must 
conduct periodic monitoring in accordance with the Scheduled Monitoring 
Option provision at 29 CFR 1910.1026(d)(2). Under this provision, if 
monitoring reveals employee exposures to be above the PEL, the employer 
shall perform periodic monitoring at least every three months. If 
monitoring reveals employee exposures to be at or above the action 
level of 2.5 [mu]g/m\3\ (as an 8-hour TWA), the employer shall perform 
periodic monitoring at least every six months. If monitoring indicates 
that employee exposures are below the action level, the employer may 
discontinue monitoring for those employees whose exposures are 
represented by such monitoring.
    The standard requires employers to notify employees whenever an 
exposure determination indicates exposures above the PEL. This 
notification must be in writing and must describe the corrective 
actions being taken to reduce employee exposures to or below the PEL. 
29 CFR 1910.1026(d)(4). In accordance with this requirement, facilities 
that are parties to the Agreement must prepare a written compliance 
plan that sets forth the specific control steps being taken to reduce 
exposures to or below the PEL and must update that plan each time 
monitoring reveals exposures above the PEL.
    Upon request, compliance plans and monitoring results must be 
provided to OSHA, affected employees and employee representatives.

Training

    In addition to training employees as required by Section 1026(l)(2) 
of the standard, facilities that are parties to the Agreement must 
train their employees in the provisions of the Agreement within sixty 
(60) days of the Opt-in Date (see Section IV). This training must be 
provided in a manner and language the employees can understand.

Facilities That Are Not Parties to the Agreement

    The terms of the Agreement and the amendment being made to Section 
(n) of the standard have no impact on the compliance requirements 
applicable to facilities that are not eligible to or do not elect to 
become parties to the Agreement. Facilities that are not parties to the 
Agreement must comply with all respirator requirements beginning on the 
applicable compliance date (November 27, 2006 for employers with 20 or 
more employees and May 30, 2007 for employers with 19 or fewer 
employees) and will have until May 31, 2010 to implement feasible 
engineering controls.

III. Eligibility Criteria

    An employer's facility is eligible to become a party to the 
Agreement if (1) The employer is a member of SFIC or the facility is a 
surface-finishing or metal-finishing job shop that sells plating or 
anodizing services to other companies; and (2) the facility is within 
the jurisdiction of Federal OSHA. The terms of the Agreement apply only 
to surface- and metal-finishing operations in those facilities.

[[Page 63241]]

IV. Instructions for Eligible Facilities

    Employers can make their eligible facilities parties to the 
Agreement by completing a Declaration of Party Status. Declarations are 
available on OSHA's Web site at http://www.osha.gov/SLTC/hexavalentchromium/hexchrom_settlement.html. A separate declaration 
must be completed for each facility. Questions about eligibility and 
other inquires about becoming a party to the Agreement can be directed 
to OSHA's Office of Health Enforcement at (202) 693-2190
    Completed declarations must be mailed or sent by facsimile to: 
Richard Fairfax, Director of Enforcement Programs, Occupational Safety 
and Health Administration, 200 Constitution Ave., NW., Room N3119, 
Washington, DC 20210; Fax: (202) 693-1681.
    Declarations of Party Status must be received by OSHA or postmarked 
on or before November 30, 2006. For purposes of the Settlement 
Agreement, this deadline is known as the ``Opt-in Date.''

V. Instructions for Facilities in State Plan Jurisdictions

    SFIC members and other electroplating job shop facilities within 
the jurisdiction of OSHA-approved State occupational safety and health 
plans may contact their State plan agencies to determine if their State 
programs will honor and implement the terms of this Federal Agreement, 
including the amendment to the standard, or take an alternative 
position, which may include entering into separate arrangements with 
surface- and metal-finishing job shop facilities or their 
representatives. The 22 State plans covering the private sector are in 
Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, 
Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto 
Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, 
and Wyoming. Contact information for these State plans is available on 
OSHA's Web site at http://www.osha.gov/fso/osp/index.html.

VI. Pertinent Legal Authority

    This amendment is published under authority of the Occupational 
Safety and Health Act and the Administrative Procedure Act (APA). See 
29 U.S.C. 651(b), 655, and 5 U.S.C. 553. OSHA promulgated the Cr(VI) 
standard in February 2006, after extensive notice-and-comment 
rulemaking proceedings. For the reasons set forth below, additional 
public notice and comment for the amendment described in this notice is 
not required.
    The amendment described in this notice applies only to surface-
finishing and metal-finishing (electroplating) operations in eligible 
facilities that voluntarily elect to participate in the alternative 
timetable for compliance. It follows that the only entities and persons 
affected by this amendment are (1) Employers who operate those 
facilities and (2) employees who work in those facilities. To a 
significant extent, employers and employees had actual notice of, and 
ample opportunity to comment on, this amendment by virtue of the 
participation of representatives (SFIC for employers, and HRG and the 
Steelworkers for employees) in the settlement negotiations preceding 
publication of this notice.
    Under the APA, the agency may make a ``good cause'' finding that 
notice and comment would be impracticable, unnecessary, or contrary to 
the public interest. 5 U.S.C. 553(b)(B). In this instance, OSHA finds 
that public notice and comment for this minor amendment is both 
unnecessary and impracticable. OSHA's determination that good cause 
exists for proceeding without additional notice and comment is based on 
the following factors:
    (1) This amendment is a minor, non-substantive, and industry-
specific change to the compliance date provisions of the standard. The 
vast majority of industries and facilities covered by the standard will 
be unaffected by the amendment, and even at affected worksites, the 
substantive requirements of the standard remain unchanged.
    (2) The amendment simply adds an additional compliance option to 
the standard. Given the voluntary nature of the new compliance date 
provision, no affected employer can be prejudiced by the amendment. The 
terms of the Agreement and the new compliance date provision apply only 
to facilities that voluntarily file a Declaration of Party Status with 
OSHA. Any facility wishing to adhere to the standard as originally 
promulgated may do so.
    (3) No employees are adversely affected as a result of the 
Agreement or the amendment to the standard. Even at facilities that are 
parties to the Agreement, where OSHA will not be enforcing all interim 
respirator requirements, each employee who wishes to wear a respirator 
has a right to request and receive one under the terms of the 
Agreement, and any employee who makes such a request and is exposed 
above the PEL will be protected by the full respirator program provided 
under the standard. In addition, employees currently covered by 
existing respirator programs will continue to receive respiratory 
protection. Moreover, OSHA has concluded that employees at 
participating facilities--including those who request respirators in 
the interim--will benefit from the expedited implementation of 
engineering controls.
    (4) As described more fully in Section I of this notice, this 
amendment is consistent with, and an outgrowth of, findings OSHA made 
based on the record that was developed, with extensive public input, 
during the chromium rulemaking. No new or additional findings are 
required to support the amendment.
    (5) This amendment arises out of the unique context of settlement 
negotiations conducted during litigation over the validity of the 
chromium standard. The new compliance date provision is the result of 
extensive negotiations between OSHA, SFIC, HRG, and the Steelworkers, 
and it resolves SFIC's challenge to the rule.
    (6) Time-consuming notice and comment on this technical amendment 
to the standard is impracticable given that the benefits the parties 
expect to realize from the Agreement depend on immediate or virtually 
immediate implementation of the terms of the settlement. Any lengthy 
delay associated with additional rulemaking could undermine the 
essential (and time sensitive) premise of the Agreement, namely that 
participating facilities will implement engineering controls earlier 
than otherwise required in exchange for some interim relief from short-
term respirator requirements. In addition, OSHA's enforcement personnel 
need to know promptly which facilities are parties to the Agreement. 
Only facilities that become parties to the Agreement are eligible for 
any relief from the respiratory protection requirements of the 
standard.

VII. Economic Analysis and Regulatory Flexibility Act Certification

    In promulgating the final hexavalent chromium standard in February 
2006, OSHA found that the rule was economically and technologically 
feasible for all affected industries. See 71 FR at 10256-302. The 
amendment described in this notice is a minor change to the compliance 
date provision of the standard and applies, on a voluntary basis, to a 
very small percentage of all facilities covered by the rule. OSHA has 
concluded that this amendment does not affect its economic or 
technological feasibility findings. Furthermore, in accordance with the 
Regulatory Flexibility Act, OSHA certifies that this amendment will not

[[Page 63242]]

have a significant economic impact on a substantial number of small 
entities. In fact, this action will increase compliance flexibility for 
affected small businesses by offering them an additional compliance 
schedule option. The addition of such an option may decrease costs for 
some affected employers, and will increase costs for none.

VIII. Environmental Impacts, Unfunded Mandates, Federalism, and 
Environmental Health and Safety Risks for Children

    In the final hexavalent chromium standard, OSHA also reviewed 
environmental impacts, unfunded mandates, and federalism issues, and 
considered the impact of the rule on the environmental health and 
safety of children. See 71 FR at 10326 (federalism and unfunded 
mandates); 71 FR at 10326-27 (protecting children from environmental 
health and safety risks); 71 FR at 10327 (environmental impact). For 
the reasons noted in section VII above, OSHA finds that the amendment 
does not alter the findings or determinations rendered in these 
analyses.

IX. Paperwork Reduction Act

    On February 27, 2006, OSHA submitted the information collection 
request for the final hexavalent chromium standard to the Office of 
Management and Budget (OMB) for approval in accordance with the 
Paperwork Reduction Act of 1995. On March 28, 2006, OMB approved the 
collections of information contained in the final chromium standard and 
assigned them OMB Control Number 1218-0252. The amendment described in 
this notice does not change the burden associated with the preparation, 
maintenance or disclosure of information as calculated and described by 
OSHA at the time the final standard was originally promulgated. See 71 
FR at 10325-26.

X. State Plans

    In accordance with Section 18(c)(2) of the Occupational Safety and 
Health Act (29 U.S.C. 667(c)(2)), when Federal OSHA promulgates a new 
standard or a more stringent amendment to an existing standard, the 26 
States or U.S. territories with OSHA-approved occupational safety and 
health plans must revise their standards to reflect the new standard or 
amendment. 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 an amendment to a standard, 
which does not impose additional or more stringent requirements than an 
existing standard, States are encouraged but not required to take 
parallel action. In addition, State plans operate under authority of 
State law, and agreements reached by Federal OSHA are not binding on 
the States unless they become parties to the agreements or otherwise 
specifically agree to their terms.
    The State plans were required to adopt OSHA's hexavalent chromium 
standard within six months of the Federal promulgation, i.e., by August 
28, 2006. The Federal settlement and the corresponding amendment to 
OSHA's hexavalent chromium standard provide SFIC members and other 
surface- and metal-finishing job shops under Federal OSHA's 
jurisdiction with an optional alternative to the compliance timetable 
described in Section (n) of the standard as originally promulgated. 
This action does not impose additional or more stringent requirements. 
Further, the 22 States with OSHA-approved State plans covering private 
sector employment were not parties to the negotiations that resulted in 
this amendment. Accordingly, State plans are not bound by the Agreement 
or obligated to adopt OSHA's amendment to its standard. Nevertheless, 
OSHA encourages the 22 State plans that cover both the private and 
public (State and local government) sectors (see list in Section V of 
this notice) to honor and implement the terms of the Agreement, 
including adopting a corresponding amendment to their State standard, 
or to take an alternative position, which could include entering into 
separate arrangements with surface- and metal-finishing job shops (or 
their representatives) in their jurisdiction.

List of Subjects in 29 CFR Part 1910

    Cancer, Chemicals, Hazardous substances, Health, Occupational 
safety and health.

XI. Authority and Signature

    This document was prepared under the direction of Edwin G. Foulke, 
Jr., Assistant Secretary of Labor for Occupational Safety and Health, 
U.S. Department of Labor, 200 Constitution Ave., NW., Washington, DC 
20210. The Agency issues the final sections under the following 
authorities: 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. 
5-2002 (67 FR 65008); and 29 CFR Part 1911.

    Signed at Washington, DC on October 25, 2006.
Edwin G. Foulke, Jr.,
Assistant Secretary of Labor.

Amendment to the Final Standard

0
Chapter XVII of Title 29 of the Code of Federal Regulations is to be 
amended as follows:

PART 1910--[AMENDED]

Subpart Z--[Amended]

0
1. The authority citation for Subpart Z of Part 1910 continues to read 
as follows:

    Authority: Sections 4, 6, 8 of the Occupational Safety and 
Health Act of 1970 (29 U.S.C. 653, 655, 657: Secretary of Labor's 
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 
35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 
or 5-2002 (67 FR 65008), as applicable; and 29 CFR part 1911.
    All of subpart Z issued under section 6(b) of the Occupational 
Safety and Health Act, except those substances that have exposure 
limits listed in Tables Z-1, Z-2, and Z-3 of 29 CFR 1910.1000. The 
latter were issued under section 6(a) (29 U.S.C. 655(a)).
    Section 1910.1000, Tables Z-1, Z-2, and Z-3 also issued under 5 
U.S.C. 553, Section 1910.1000 Tables Z-1, Z-2, and Z-3 but not under 
29 CFR part 1911 except for the arsenic (organic compounds), 
benzene, cotton dust, and chromium (VI) listings.
    Section 1910.1001 also issued under section 107 of the Contract 
Work Hours and Safety Standards Act (40 U.S.C. 3704) and 5 U.S.C. 
553.
    Section 1910.1002 also issued under 5 U.S.C. 553 but not under 
29 U.S.C. 655 or 29 CFR part 1911.
    Sections 1910.1018, 1910.1029 and 1910.1200 also issued under 29 
U.S.C. 653.
    Section 1910.1030 also issued under Pub. L. 106-430, 114 Stat. 
1901.


0
2. In Sec.  1910.1026:
0
a. Paragraph (n)(3) is revised.
0
b. Paragraph (n)(4) is added.
0
c. Appendix A to Sec.  1910.1026 is added.
    The revisions and additions read as follows:


Sec.  1910.1026  Chromium (VI).

* * * * *
    (n) Dates * * *
    (3) Except as provided in (n)(4), for all employers, engineering 
controls required by paragraph (f) of this section shall be implemented 
no later than May 31, 2010.
    (4) In facilities that become parties to the settlement agreement 
included in Appendix A, engineering controls required by paragraph (f) 
of this section shall be implemented no later than December 31, 2008.

[[Page 63243]]

Appendix A to Sec.  1910.1026

In the United States Court of Appeals for the Third Circuit

Surface Finishing Industry Council et al., Petitioners, v. U.S. 
Occupational Safety and Health Administration, Respondent.

[Docket No. 06-2272 and consolidated cases]

Public Citizen Health Research Group et al., Petitioners, v. 
Occupational Safety and Health Administration, United States 
Department of Labor, Respondent.

[Docket No. 06-1818]

Settlement Agreement

    The parties to this Settlement Agreement (``Agreement'') are the 
Occupational Safety and Health Administration, United States 
Department of Labor (``OSHA''), the Surface Finishing Industry 
Council or its successors (``SFIC''), surface-finishing and metal-
finishing facilities which have opted into this Agreement pursuant 
to paragraph 7 (``Company'' or ``Companies''), Public Citizen Health 
Research Group (``HRG''), and the United Steel, Paper and Forestry, 
Rubber, Manufacturing, Energy, Allied Industrial and Service Workers 
International Union (``Steelworkers'').
    Whereas, On February 28, 2006, OSHA promulgated a revised 
hexavalent chromium standard for general industry (``the Standard'') 
that includes a permissible exposure limit (``PEL'') for hexavalent 
chromium of 5 micrograms per cubic meter (``[mu]g/m\3\'') measured 
as an 8-hour time-weighted average (``TWA''), and a deadline of May 
31, 2010, for employers to come into compliance with this PEL 
through the implementation of engineering controls. The deadline for 
compliance with the remaining provisions of the Standard, including 
those requiring the use of respiratory protection to comply with the 
PEL, is November 27, 2006, for employers with twenty (20) or more 
employees, and May 30, 2007, for employers with nineteen (19) or 
fewer employees. 29 CFR 1910.1026, 71 FR 10100 (Feb. 28, 2006);
    Whereas, SFIC filed a Petition for Review of the Standard in the 
Eleventh Circuit that was consolidated with other Petitions in the 
Third Circuit (Case No. 06-2272);
    Whereas, SFIC filed a Motion for Leave to Intervene in the 
matter of HRG's Petition for Review in the Third Circuit (Case No. 
06-1818), which has been granted;
    Now, therefore, the parties to this Agreement do hereby agree to 
the following terms:
    1. Term of this Agreement. This Agreement will be effective upon 
execution and will expire on May 31, 2010.
    2. Accelerated implementation of engineering controls. The 
Companies agree that in accordance with 29 CFR 1910.1026(f)(1) they 
will implement those feasible engineering controls necessary to 
reduce hexavalent chromium levels at their facilities by December 
31, 2008, to or below the 5 [mu]g/m\3\ PEL. In fulfilling this 
obligation, the Companies may select from the engineering and work 
practice controls listed in Exhibit A to this Agreement or adopt any 
other controls.
    3. Compliance plan and monitoring. In accordance with 29 CFR 
1910.1026(d)(4)(ii), each Company will prepare, and update as 
required, a written plan setting forth the specific control steps 
being taken to reduce employee exposure to or below the PEL by 
December 31, 2008. In addition, Companies will make an initial 
exposure determination as required by 29 CFR 1910.1026(d)(1) using 
either the procedures for personal breathing zone air samples 
described in 29 CFR 1910.1026(d)(2) or the performance-oriented 
option described at 29 CFR 1910.1026(d)(3). Thereafter, Companies 
will conduct periodic monitoring in accordance with the ``Scheduled 
Monitoring Option'' provisions at 29 CFR 1910.1026(d)(2) and related 
provisions at 29 CFR 1910.1026(d)(4)-(6). The Companies agree that 
upon request compliance plans prepared in accordance with this 
paragraph, as well as all monitoring results obtained in compliance 
with this paragraph, will be provided to OSHA, affected employees 
and employee representatives.
    4. Respirator use. The respiratory protection provisions at 29 
CFR 1910.1026(f) and (g) will apply to the Companies in accordance 
with the terms and dates set forth in the Standard, except that 
prior to December 31, 2008, for Companies that are in compliance 
with this Agreement, OSHA will enforce those respiratory protection 
provisions only with respect to employees who fall into one of the 
following six (6) categories: (1) Employees who are exposed to 
hexavalent chromium in excess of the PEL while performing tasks 
described in Exhibit B to this Agreement; (2) through November 30, 
2007, employees whose exposures to hexavalent chromium exceed a 
``respirator threshold'' of 20 [mu]g/m\3\ (measured as an 8-hour 
TWA); (3) beginning December 1, 2007, employees whose exposures to 
hexavalent chromium exceed a ``respirator threshold'' of 12.5 [mu]g/
m\3\ (measured as an 8-hour TWA); (4) employees who are exposed to 
hexavalent chromium and request a respirator; (5) any other 
employees who are required by the Companies to wear a respirator; 
and (6) employees with exposures for which respirators were required 
under the previous hexavalent chromium standard (1910.1000) and any 
other employees covered by respirator programs in effect on May 30, 
2006.
    5. Employee information and training. Company employees will be 
trained pursuant to the provisions of 29 CFR 1910.1026(l)(2). In 
addition, the Companies agree to train employees in the provisions 
of this Agreement within sixty (60) days of the Opt-In Date (defined 
in paragraph 7 of this Agreement). The training regarding this 
Agreement shall be provided in language the employees can 
understand.
    6. Enforcement. Within thirty (30) days of the execution of this 
Agreement, OSHA will publish a notice in the Federal Register 
amending 29 CFR 1910.1026 as follows: (1) A copy of this Agreement 
will be attached to the Standard as Appendix A; (2) a new paragraph, 
1910.1026(n)(4), will be added to the Standard, and will read: ``In 
facilities that become parties to the settlement agreement included 
in Appendix A, engineering controls required by paragraph (f) of 
this section shall be implemented no later than December 31, 2008''; 
and (3) existing paragraph 1910.1026(n)(3) will be amended to read: 
``Except as provided in (n)(4), for all employers, engineering 
controls required by paragraph (f) of this section shall be 
implemented no later than May 31, 2010.''
    7. Opt-In Date for Companies to become parties to this 
Agreement. The Federal Register notice described in paragraph 6 of 
this Agreement will provide notice of the provisions of this 
Agreement, and of the revisions to the Standard described in 
paragraph 6, and will provide until November 30, 2006, for eligible 
facilities to become parties to this Agreement, and be subject to 
all of the duties, obligations, and rights herein. The last date for 
signing by facilities shall be referred to as the Opt-In Date. The 
opt in option will be available on a facility by facility basis and 
only to SFIC members and other surface-finishing and metal-finishing 
job shop facilities within the jurisdiction of Federal OSHA. (For 
purposes of this Agreement, a ``job shop'' is defined as a facility 
that sells plating or anodizing services to other companies.) 
Moreover, the terms of this Agreement apply only with respect to the 
performance of surface-finishing and metal-finishing operations in 
those facilities. Although this Agreement applies only to facilities 
within the jurisdiction of Federal OSHA, OSHA will encourage States 
with OSHA-approved State occupational safety and health plans to 
either honor and implement the terms of this Agreement, including 
the amendments to the standard described in paragraph 6, or to take 
an alternative position, which may include entering into separate 
arrangements with surface- and metal-finishing job shop facilities 
(or their representatives) in their jurisdiction.
    8. Effect on third parties. Nothing in this Agreement 
constitutes an admission by SFIC or the Companies that a significant 
risk of material health impairment exists for hexavalent chromium 
justifying a reduction of the PEL to 5 [mu]g/m\3\. Nor does anything 
in this Agreement constitute any other admission by SFIC or the 
Companies for purposes of this litigation or future litigation or 
standards-setting. This Agreement is not intended to give any rights 
to any third party except as expressly provided herein.
    9. OSHA inspections. OSHA may do monitoring inspections to 
assess compliance with and progress under this Agreement and the 
Standard, and nothing in this Agreement limits OSHA's right to 
conduct inspections at Companies'' facilities in accordance with the 
Occupational Safety and Health Act.
    10. Scope of Agreement. The terms of this Agreement apply only 
in the circumstances and to the Companies specified herein. In 
entering into this Agreement, OSHA is not making any representations 
regarding its enforcement policy with respect to either (1) The 
hexavalent chromium standard as applied to employers who are not 
parties to this Agreement or (2) any other occupational safety or 
health standards.
    11. Effect of invalidation of the Standard. If the Standard is 
invalidated, nothing in this Agreement shall prevent the application 
to SFIC or the Companies of any PEL that is promulgated by OSHA on 
remand. This

[[Page 63244]]

Agreement would not foreclose SFIC or the Companies from 
participating in rulemaking proceedings or otherwise challenging any 
new PEL promulgated by OSHA on remand.
    12. Withdrawal of Petitions and Interventions. SFIC agrees to 
move to withdraw its Petition for Review in the above-captioned 
case, Case No. 06-2272, within five (5) working days of the 
execution of this Agreement. SFIC further will move to dismiss its 
motion to intervene in Case No. 06-1818 and all other challenges 
simultaneously with its motion to withdraw in Case No. 06-2272 as 
Petitioner.
    13. Attorneys' fees. Each party agrees to bear its own 
attorneys' fees, costs, and other expenses that have been incurred 
in connection with SFIC's Petition for Review, SFIC's intervention 
in HRG's Petition for Review, and the negotiation of this Agreement 
up to and including filing of the motions to dismiss.
    14. Support of Agreement. In the event that all or any portion 
of this Agreement is challenged in any forum, the signatories below 
agree to move to intervene in support of this Agreement.
    Agreed to this 25th day of October, 2006.

Baruch A. Fellner,

Counsel for SFIC, Gibson, Dunn & Crutcher LLP, 1050 Connecticut 
Avenue, NW., Washington, DC 20036, (202) 955-8500.

Lauren S. Goodman,

Counsel for OSHA, United States Department of Labor, Office of the 
Solicitor, 200 Constitution Avenue, NW., Washington, DC 20210, (202) 
693-5445.

Scott L. Nelson,

Counsel for HRG and the Steelworkers, Public Citizen Litigation 
Group, 1600 20th Street, NW., Washington, DC 20009, (202) 588-7724.

Exhibit A

Available Engineering and Work Practice Controls

    The Companies agree that work towards the implementation of 
these available engineering and work practice controls should not be 
delayed to accommodate their completion by December 31, 2008. The 
Companies are encouraged to implement from among these controls as 
soon as practicable.

1. Parts Transfer Practices

     Minimize droplet formation. Instruments akin to garden 
hoses are used to rinse off parts coming out of chemical baths. This 
causes many small droplets to form, which are easily atomized or 
vaporized and contribute to airborne chromium concentration. The 
industry is currently developing ways to minimize the formation of 
small droplets, dripping, or splashing, possibly by reducing hose 
pressure.
     Minimize air current flow. Strong air currents across 
these droplets may contribute to their vaporization, and therefore 
minimizing air current flow across the droplets may reduce airborne 
hexavalent chromium levels.
     Slow part speeds as feasible. The speed at which parts 
are pulled out of a chemical tank causes splashing, which adds to 
chromium vaporization. By slowing the speed at which parts are taken 
out of tanks, splashing and vaporization can be minimized. The 
feasibility of this control must be evaluated in light of the 
negative effect on productivity.

2. Plating Bath Surface Tension Management and Fume Suppression

     Lower surface tension. Lower surface tension in 
chemical baths leads to fewer drops forming. Chromium baths 
currently have a surface tension of 35 dynes per centimeter. As a 
comparison, water has a surface tension of 72 dynes per centimeter. 
Lowering surface tension further would lead to reduced airborne 
hexavalent chromium levels.
     Fume suppressants. Fume suppressants create a physical 
barrier between the chemical bath and the air, which prevents 
vaporization. Some suppressants, however, may cause pitting or other 
metal damage, and therefore their use is not always possible.

3. Facility Air Disturbance Monitoring

     Improvement of local exhaust ventilation (LEV) capture 
efficiency. The majority of electroplating facilities are not air-
conditioned. As a result, doors are kept open to let in cool air, 
but this causes air currents that prevent the LEVs from performing 
efficiently. The use of fans has a similar effect. Industry is 
researching how to minimize these air currents so that LEVs can 
perform as designed. Such methods may include the use of partitions 
to degrade air current flow, or checklists that may include location 
and positioning of cross drafts, fans, doors, windows, partitions 
and process equipment that Companies can use to audit their 
workplaces in order to improve their capture efficiency.

4. Technology Enhancements In Lieu of LEV Retrofitting

     Eductors. Many chemical baths are currently mixed via 
air agitation: Air pipes bubble air into the tank to keep the 
chemicals mixed and to prevent them from settling. An adverse effect 
of this agitation is that air bubbles escape at the surface of the 
tank, resulting in some chromium vaporization. By using eductors 
(horn-shaped nozzles) in tanks, the chemicals flow from a pump to 
create solution movement below the surface without the use of air 
bubbles, and the amount of chromium vaporization can be 
significantly reduced.

5. Different Means of Chromium Additions

     Liquid Chromium. Dry hexavalent chromium flakes are 
occasionally added to tanks, which can generate airborne 
particulates of hexavalent chromium. Adding liquid chromium at or 
near the surface of a tank would lower airborne chromium levels and 
reduce splashing from tanks.
     Hydration of flakes before addition. To add liquid 
chromium to tanks, the dry flakes must be hydrated. Whether this 
process is performed by chemical suppliers that provide plating 
solutions to metal finishing companies or by metal finishing 
companies that have the necessary experience and equipment, 
appropriate work practices such as mixing techniques must be 
implemented to minimize the potential airborne levels of hexavalent 
chromium.

6. Dust Control

     Better housekeeping. Chrome dust that comes off 
products that are polished or grinded is actually elemental 
chromium, not hexavalent chromium, so polishing and grinding 
contribute little to airborne hexavalent chromium levels. However, 
Companies should use good housekeeping practices, including wet 
mopping, and wet wipedowns, to reduce the amount of dust present.

7. Improvement and Maintenance of Existing LEVs

     Improvement and maintenance of existing LEVs. Companies 
may repair and maintain their current LEVs. Because the final rule 
indicates that at least 75 percent of the industry is in compliance 
with the PEL with LEVs working at 40% of capacity, increasing LEV 
function can materially affect compliance.

8. Other Controls

     Other methods. Companies are constantly determining 
best work practices and technological controls through laboratory 
research and practical experience. Companies will implement other 
engineering and work practice controls as necessary and as 
practicable to reduce potential hexavalent chromium workplace 
exposures.

Exhibit B

Workplace Tasks Requiring Respirators Where PEL Is Exceeded

    Some well-known and relatively few, discrete tasks related to 
metal finishing activities result in potentially higher workplace 
exposures of hexavalent chromium. Where the applicable PEL for 
hexavalent chromium is exceeded, respirators shall be worn to 
conduct the following activities:
    (1) Hexavalent chromium chemical additions. In order to have the 
metal deposited onto the part, hexavalent chromium must be added to 
the plating tank periodically. This is a discrete activity that 
involves the addition of either a dry flake of hexavalent chromium 
chemicals or a liquid solution of hexavalent chromium into the 
plating tank. Respirators shall be worn during the period it takes 
to add the hexavalent chromium chemical to the tank.
    (2) Hexavalent chromium preparation and mixing. Different 
mixtures of hexavalent chromium chemicals are needed for different 
types of chromium plating processes. For example, hard chromium 
plating can require higher concentrations of hexavalent chromium 
because a thicker coating and longer plating process may be needed 
for the critical product quality and performance. Similarly, 
different types of decorative chromium plating processes may need 
different levels of hexavalent chromium and other chemicals such as 
catalysts. These mixtures can be in the form of dry flakes or liquid 
solutions. All of these different hexavalent chromium chemical 
mixtures are generally prepared by metal finishing suppliers and 
distributors. Some metal

[[Page 63245]]

finishing companies may also prepare hexavalent chromium solutions 
from the dry flakes prior to addition to the plating tanks. 
Respirators shall be worn during the period it takes to prepare 
these hexavalent chromium mixtures and solutions whether the 
activity is conducted at a chemical supplier or a metal finishing 
company.
    (3) Hexavalent chromium tank cleaning. Occasionally, the tanks 
used for chromium plating may need to be emptied and cleaned. This 
process would involve the draining of the solution and then the 
removal of any residues in the tank. Workers cleaning out these 
tanks may have to enter the tank or reach into it to remove the 
residues. Respirators (as well as other appropriate PPE) shall be 
worn during the period it takes to clean the tanks and prepare them 
for use again.
    (4) Hexavalent chromium painting operations. Some metal 
finishing operations apply paints with higher concentrations of 
hexavalent chromium to a line of parts, particularly for aerospace 
applications when a high degree of corrosion protection is needed 
for critical product performance. Paints are generally applied in 
such operations with some type of spray mechanism or similar 
dispersion practice. In some instances, it may be difficult to keep 
workplace exposures below the PEL for such paint spraying 
activities. Respirators shall be worn during such spray painting 
operations.

[FR Doc. 06-8971 Filed 10-27-06; 8:45 am]
BILLING CODE 4510-26-P