Standards Improvement Project-Phase III, 33590-33612 [2011-13517]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 76, Number 110 (Wednesday, June 8, 2011)]
[Rules and Regulations]
[Pages 33590-33612]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-13517]



[[Page 33589]]

Vol. 76

Wednesday,

No. 110

June 8, 2011

Part IV





Department of Labor





-----------------------------------------------------------------------



Occupational Safety and Health Administration



-----------------------------------------------------------------------



29 CFR Parts 1910, 1915, 1917 et al.



Standards Improvement Project--Phase III; Final Rule

Federal Register / Vol. 76, No. 110 / Wednesday, June 8, 2011 / Rules 
and Regulations

[[Page 33590]]


-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1910, 1915, 1917, 1918, 1919, 1926, and 1928

[Docket No. OSHA-2006-0049]
RIN 1218-AC19


Standards Improvement Project--Phase III

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Phase III of the Standards Improvement Project (SIP-III) is 
the third in a series of rulemaking actions to improve and streamline 
OSHA standards. The Standards Improvement Project removes or revises 
individual requirements within rules that are confusing, outdated, 
duplicative, or inconsistent. OSHA identified several requirements for 
SIP-III (e.g., rigging, NIOSH records, and training certifications) for 
improvement based on the Agency's review of its standards, suggestions 
and comments from the public, or recommendations from the Office of 
Management and Budget (OMB). OSHA believes that improving these 
standards will help employers to better understand their obligations, 
promote safety and health for employees, lead to increased compliance, 
and reduce compliance costs. OSHA estimates that these changes will 
result in annualized savings for employers of over $45 million, and 
will reduce paperwork burden by 1.85 million hours annually.

DATES: This final rule becomes effective on July 8, 2011. As this rule 
imposes no new burdens on employers, employers may comply with the 
revised provisions prior to the effective date, which is 30 days after 
publication of this final rule. The Director of the Federal Register 
approved the incorporation by reference of specific publications listed 
in this final rule under 5 U.S.C. 552(a) and 1 CFR 51 as of July 8, 
2011

ADDRESSES: In compliance with 28 U.S.C. 2112(a)(2), OSHA designates the 
Associate Solicitor of Labor for Occupational Safety and Health, Office 
of the Solicitor, Room S-4004, U.S. Department of Labor, 200 
Constitution Avenue, NW., Washington, DC 20210, to receive petitions 
for review of the final rule.

FOR FURTHER INFORMATION CONTACT: Camilla McArthur, OSHA Office of 
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Washington, DC 20210; telephone (202) 693-1999.

SUPPLEMENTARY INFORMATION:

A. Exhibits Referenced in This Rule

    The exhibits referenced by OSHA in this rule are in Docket No. 
OSHA-2006-0049, which is the docket for this rulemaking. The docket is 
available at https://www.regulations.gov, the Federal eRulemaking 
Portal. In this notice, OSHA designates exhibits as ``ID.'' The 
digit(s) following this designation refer to the full document number 
at https://www.regulations.gov. For example, the exhibit number 
referenced as ID 0151.1 in this notice is document number OSHA-2006-
0049-0151.1 under the column labeled ``ID'' at https://www.regulations.gov; this document happens to be a comment submitted by 
the National fire Protection Association.
    Most exhibits, including public comments, supporting materials, 
meeting transcripts, and other documents, are available at https://www.regulations.gov; some exhibits (e.g., copyrighted material) are not 
available to read or download from that Web page. However, all 
materials in the docket are available for inspection and copying at the 
OSHA Docket Office, Room N-2625, U.S. Department of Labor, 200 
Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-
2350.

B. Table of Contents

    The following table of contents identifies the major sections of 
the preamble to the Standards Improvement Project--Phase III (SIP-III) 
final rule:

I. Background
    A. Introduction
    B. Regulatory History
II. Legal Considerations
III. Summary and Explanation of the Final Rule
IV. Final Economic Analysis and Regulatory Flexibility Analysis
V. Federalism
VI. Unfunded Mandates
VII. Office of Management and Budget Review Under the Paperwork 
Reduction Act of 1995
VIII. State Plans
IX. Authority and Signature
X. The Final Standard

I. Background

A. Introduction

    Phase III of the Standards Improvement Project (SIP-III) is the 
third in a series of rulemaking actions to improve and streamline OSHA 
standards. Historically, the Standards Improvement Project removes or 
revises individual requirements within rules that are confusing, 
outdated, duplicative or inconsistent. OSHA believes that improving 
these standards helps employers to better understand their obligations, 
promotes safety and health for employees, and leads to increased 
compliance and reduced compliance costs. OSHA summarizes the revised 
standards and revisions below, and describes them in detail in section 
III, Summary and Explanation of the Final Rule.
    First, OSHA is revising the title of 29 CFR part 1910, subpart E, 
of the general industry standard, and is revising Sec.  1910.35 to 
incorporate by reference the most current version of the National Fire 
Protection Association's (NFPA) Life Safety Code. To provide greater 
flexibility, OSHA also added a second compliance alternative. OSHA made 
several minor revisions to other sections in this subpart to correspond 
to the new language in Sec.  1910.35.
    In subpart I, OSHA is deleting requirements that employers prepare 
and maintain written training certification records. OSHA does not 
believe that the training certification records required by the four 
standards provide a safety or health benefit to employees, nor are the 
burden hours and cost to employers justified. These standards are the 
general industry Personal Protective Equipment (PPE) standard (Sec.  
1910.132); the shipyard employment PPE standard (Sec.  1915.152); and 
the general industry and construction Cadmium standards (Sec. Sec.  
1910.1027 and 1926.1127).
    There are seven revisions to the Respiratory Protection standard at 
Sec.  1910.134. One revision clarifies which breathing-gas containers 
employers must provide pursuant to the standard (Sec.  1910.134(i)(9)). 
To provide additional clarification, OSHA is revising language in 
Appendix C of Sec.  1910.134, and updating the language of the DOT 
regulations referenced in Sec.  1910.134(i)(4)(i). OSHA also deleted 
duplicative and inconsistent statements in Appendix D of Sec.  
1910.134, and also in the Asbestos standard for shipyards (Sec.  
1915.1001) and construction (Sec.  1926.1101). OSHA revised paragraph 
(c)(4)(iv) of Sec.  1910.1003 to correct an inadvertent omission from 
the respiratory-protection requirements for four of the 13 carcinogen 
standards. Lastly, OSHA also removed the requirement to keep fit-test 
records from the 1,3-Butadiene standard (Sec.  1910.1051 (m)(3)).
    There are two revisions under subpart J. First, OSHA is revising 
and updating the definition of the term ``potable water'' in the 
Sanitation standards for general industry and construction (Sec.  
1910.141(a)(2); Sec.  1926.51(a)(6)), and

[[Page 33591]]

the Field Sanitation standard for agriculture (Sec.  1928.110(b)). 
Second, OSHA is revising the Bloodborne Pathogens standard by removing 
the word ``hot'' from the definition of ``handwashing facilities'' at 
Sec.  1910.1030(b) in the phrase ``hot air drying machines,'' which 
permits employers to use new technologies (e.g., high-velocity air 
blowers) in the workplace. This revision also applies to sanitation 
standards for general industry (Sec.  1910.141(d)(2)(iv)), marine 
terminals (Sec.  1917.127(a)(1)(iii)), longshoring (Sec.  
1918.95(a)(1)(iii)), and construction (Sec.  1926.51(f)(3)(iv)).
    OSHA is updating its standards regulating slings for general 
industry (Sec.  1910.184); shipyard employment (Sec. Sec.  1915.112, 
1915.113, and 1915.118), and construction (Sec.  1926.251). 
Modifications to these standards include removing previous load-
capacity tables (Sec.  1910.184, tables N-184-1, N-184-3 through N-184-
22; and G-1 through G-5, G-7, G-8, and G-10) and references to these 
tables (Sec.  1915.112; Sec.  1915.113; and Sec.  1926.251; tables H-1 
and H-3 through H-19). Employers now must use slings with permanently 
affixed identification markings that depict the maximum load capacity. 
The final rule provides similar protection for shackles in Sec. Sec.  
1915.113 and 1926.251.
    In subpart T, OSHA is removing two obsolete recordkeeping 
requirements from the Commercial Diving Operations standard (Sec.  
1910.440 (b)(3)(i) and (b)(5)), and correcting a typographical error 
(Sec.  1910.440 (b)(4)).
    In subpart Z, OSHA also is removing the requirement for employers 
to transfer specific records to the National Institute for Occupational 
Safety and Health (NIOSH) (for example, Sec.  1910.1020). Finally, OSHA 
is making several other miscellaneous revisions. For example, OSHA is 
removing duplicative respiratory-protection requirements, and is 
amending the trigger levels in the Lead standards for general industry 
and construction (Sec. Sec.  1910.25 and 1926.62).
    Additional revisions to maritime standards include adding a 
clarification to the definition of ``hot work,'' adding a definition 
for ``ship's stores,'' and updating gear-certification requirements to 
conform to the International Labor Organization (ILO) Convention.
    OSHA discusses all of these revisions in detail in the Summary and 
Explanation section of this notice. The revisions above, when 
considered together, will reduce compliance costs, eliminate paperwork 
burdens, and clarify requirements without diminishing worker 
protections.

B. Regulatory History

    The Standards Improvement Project (SIP) began in response to a 1996 
Presidential Memorandum on Improving Government Regulations. SIP-I, 
published on July 22, 1996 (61 FR 37849) effected several changes to 
the general industry and construction standards, including the removal 
of obsolete medical tests and the elimination of unnecessary cross-
references. After the success of SIP-I, OSHA completed SIP-II, which it 
published on January 5, 2005 (70 FR 1111). SIP-II focused on revising 
health standards to reduce regulatory burden, facilitate compliance, 
eliminate unnecessary paperwork, and revise employee-notification 
requirements.
    SIP-III builds on the success of SIP-I and SIP-II, and continues 
with the removal or revision of out-of-date and inconsistent rules. 
OSHA selected the regulations for improvement in SIP-III based on the 
Agency's review of its standards, suggestions and comments from public 
and private entities either to OSHA directly or in the OMB report, 
Regulatory Reform of the U.S. Manufacturing Sector (2005).
    SIP-III received support from several stakeholders who provided 
comments to both an Advanced Notice of Proposed Rulemaking (ANPR) 
published on December 21, 2006 (71 FR 76623), and the proposal 
published on July 2, 2010 (75 FR 38646). SIP-III is consistent with the 
current goals and objectives of this Administration, as evidenced by 
Executive Order 13563 (76 FR 3821), titled ``Improving Regulation and 
Regulatory Review,'' issued on January 18, 2011, by President Obama. 
Specifically, the Executive Order requests that agencies review 
existing and proposed standards and regulations to ensure they 
effectively protect ``public health, welfare, safety, and our 
environment while promoting economic growth, innovation, 
competitiveness, and job creation.'' The Executive Order continues:

    [Our regulatory system] must allow for public participation and 
an open exchange of ideas. It must promote predictability and reduce 
uncertainty. It must identify and use the best, most innovative and 
least burdensome tools for achieving regulatory ends. It must take 
into account benefits and costs, both quantitative and qualitative. 
It must ensure that regulations are accessible, consistent, written 
in plain language, and easy to understand. It must measure, and seek 
to improve, the actual results of regulatory requirements.

The Executive Order sets forth requirements for agencies to follow when 
promulgating standards. The requirements detail several principles for 
agencies to observe during the rulemaking process, including public 
participation, integration and innovation, flexible approaches, and 
retrospective analysis of existing rules. Specifically, the Executive 
Order provides the following direction to agencies regarding 
retrospective analysis:

    To facilitate the periodic review of existing significant 
regulations, agencies shall consider how best to promote 
retrospective analysis of rules that may be outmoded, ineffective, 
insufficient, or excessively burdensome, and to modify, streamline, 
expand, or repeal them in accordance with what has been learned.

    As previously discussed, the SIP process is a proven and successful 
means to review, update, and revise regulations. SIP-III, in 
particular, embodies the goals and objectives specified in the 
Executive Order because it ensures that OSHA's standards are 
understandable, relevant, do not overly burden employers, and, most 
importantly, provide regulations that are effective in keeping 
America's workers safe.

II. Legal Considerations

    The purpose of the Occupational Safety and Health Act of 1970 (OSH 
Act; 29 U.S.C. 651 et al.) 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 * * *.'' (See 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, authorizing summary adoption of existing national consensus 
and established Federal standards within two years of the effective 
date of the OSH Act (29 U.S.C. 655(a)); authorizing promulgation of 
standards pursuant to notice-and-comment (29 U.S.C. 655(b)); and 
requiring employers to comply with OSHA standards (29 U.S.C. 654(b)).
    An occupational 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 and places of 
employment'' (29 U.S.C. 652(8)). A standard is reasonably necessary or 
appropriate within the meaning of Section 652(8) if it substantially 
reduces or eliminates significant risk. In addition, it must be 
technologically and economically feasible, cost effective, and 
consistent with prior Agency action, or a justified departure from that 
action. Substantial evidence must support the standard, and the 
standard

[[Page 33592]]

must effectuate the OSH Act's purposes better than any national 
consensus standard it supersedes. (See 58 FR 16612-16616, March 30, 
1993.)
    A standard is technologically feasible when the protective measures 
it requires already exist, when available technology can bring the 
protective measures into existence, or when that technology is 
reasonably likely to develop. (See American Textile Mfrs. Institute v. 
OSHA, 452 U.S. 490, 513 (1981) (ATMI); American Iron and Steel 
Institute v. OSHA, 939 F.2d 975, 980 (DC Cir. 1991) (AISI)). A standard 
is economically feasible if industry can absorb or pass on the costs of 
compliance without threatening its long-term profitability or 
competitive structure. See ATMI, 452 U.S. at 530 n. 55; AISI, 939 F.2d 
at 980. A standard is cost effective if the protective measures it 
requires are the least costly of the available alternatives that 
achieve the same level of protection. ATMI, 452 U.S. at 514 n. 32; 
International Union, UAW v. OSHA, 37 F.3d 665, 668 (DC Cir.1994) (LOTO 
II).
    Section 6(b)(7) of the OSH Act authorizes OSHA to include in its 
standards requirements for labeling, monitoring, medical testing, and 
other information-gathering and transmittal provisions (29 U.S.C. 
655(b)(7)). OSHA safety standards also must be highly protective. (See 
58 FR at 16614-16615; LOTO II, 37 F.3d at 668-669.) Finally, whenever 
practical, standards shall ``be expressed in terms of objective 
criteria and of the performance desired'' (29 U.S.C. 655(b)(5)).

III. Summary and Explanation of Final Rule

    OSHA proposed a number of actions to amend its standards, including 
revisions to the Agency's general industry, maritime, construction, and 
agricultural standards. A detailed description and the Agency's 
rational for each revision follows. Also discussed are the comments the 
Agency received in response to the changes it proposed. OSHA made some 
of the revisions in more than one industry. For example, the revisions 
to the general industry Slings standard also are made in shipyard 
employment and the construction industry. When revisions in a general 
industry standard are also made in additional industries, OSHA will 
discuss the revisions fully in the general industry section, and then 
reference the provisions affected in the sections covering the other 
industries.

A. Revisions in General Industry Standards (29 CFR 1910)

1. Subpart E
    OSHA is making several revisions to subpart E. First, the title of 
subpart E changes from ``Means of Egress'' to ``Exit Routes and 
Emergency Planning.'' OSHA previously changed the title in 2002 when 
the Agency updated subpart E in its entirety (67 FR 67949); the new 
title was ``Exit Routes, Emergency Action Plans, and Fire Prevention 
Plans.'' However, due to a printing error, the change was not made. In 
the SIP-III NPRM, OSHA proposed changing the title of subpart E to the 
more concise ``Exit Routes and Emergency Planning.''
    In response to the NPRM, the National Fire Protection Association 
(NFPA) (ID 0151.1) noted that the NFPA Life Safety Code (NFPA 101) and 
the International Code Council (ICC) codes use the term ``means of 
egress,'' and claimed, ``Fire marshals, code officials, architects, 
engineers, and safety managers are familiar with the term `means of 
egress' and understand what components constitute the means of egress * 
* *.'' There were no other comments submitted to the docket on this 
issue.
    While the term ``means of egress'' as used by the NFPA may be 
familiar to many in the fire-regulation community, OSHA's requirements 
of subpart E consistently use the term ``exit routes'' throughout, 
including in the ``Coverage and Definitions'' section. Therefore, OSHA 
is revising the title of subpart E to ``Exit Routes and Emergency 
Planning,'' as proposed.
    OSHA's requirements for exit routes at Sec. Sec.  1910.36, and 
1910.37 of subpart E are general, performance-oriented, and do not 
address every situation that may arise. Section 1910.35 provides 
employers with a compliance alternative to Sec. Sec.  1910.36, and 
1910.37 that they can use to cover a variety of situations. 
Specifically, it permits employers to demonstrate compliance with the 
exit-route provisions of NFPA 101 instead of the requirements in Sec.  
1910.36 or 1910.37. Existing Sec.  1910.35 refers to the 2000 edition 
of the NFPA 101 as the alternative means of compliance. OSHA proposed 
to update this provision to permit employers to comply with Chapter 7 
of the 2009 edition of NFPA 101, which covers means of egress, or exit 
routes. OSHA believed that Chapter 7 of the later edition of NFPA 101 
would provide a level of employee safety equivalent to, or higher than, 
the requirements of Sec. Sec.  1910.34, 1910.36, and 1910.37.
    OSHA also proposed to revise Sec.  1910.35 to add a second 
compliance alternative that would deem employers to be in compliance 
with the corresponding requirements in Sec. Sec.  1910.34, 1910.36, and 
1910.37, provided that employers can demonstrate compliance with the 
exit route provisions contained in Chapter 10 of the of the ICC 
International Fire Code (IFC).
    NFPA commented (ID 0151.1) that using only Chapter 7 of NFPA 101 
for the compliance alternative as proposed in the NPRM is inadequate, 
noting that ``a broader reference to the 2009 edition of NFPA 101 is in 
order as those who enforce the OSHA rules understand that supplemental 
egress rules in the occupancy chapters have application.'' After 
considering the NFPA's comment, OSHA agrees that all of the provisions 
contained in the full standard related to exit routes are necessary for 
proper application because other chapters in the NFPA 101 also include 
provisions for means of egress. For example, administrative provisions 
such as scope, applicability, and equivalency are in Chapter 1, while 
definitions for terms used in Chapter 7 are in Chapter 3. Chapter 8 
contains provisions for fire barriers, smoke barriers, and smoke 
partitions that are necessary to achieve the compartmentation features 
(such as stair enclosures) for means of egress. Chapter 11 contains 
provisions for high-rise buildings and other special structures. 
Chapters 12 through 42 have provisions that apply to exit routes for 
buildings of specific occupancy types. Chapters 11 through 42 adapted, 
as appropriate, the basic provisions of the core chapters (1 through 
10) when addressing specific occupancies, differing occupant 
capabilities, and various building types. Some examples of these 
adaptations include sprinkler system trade-offs, conditions where a 
single exit would be acceptable, lengthened or shortened travel 
distance to exits, and wider or narrower aisles based on occupant load. 
Referencing the corresponding portions of the entire 2009 NFPA 101 
standard that relate to exit routes, rather than a single chapter, is 
consistent with the previously existing compliance alternative in Sec.  
1910.35 that referenced the exit-route provisions of the entire 2000 
edition of NFPA 101.
    Similarly, Sec.  1910.35 of the final rule references the entire 
IFC standard, rather than only Chapter 10, as initially proposed. OSHA 
determined that the full IFC standard is necessary for proper 
application of the exit-route requirements. OSHA believes that these 
additional compliance options will benefit employers because they will 
provide employers with flexibility to use the compliance option that 
best

[[Page 33593]]

serves their needs, while maintaining the same level of protection as 
OSHA's subpart E rules. OSHA also is revising the Table of Contents in 
Sec.  1910.33, the definition for ``occupant load'' in Sec.  1910.34, 
and two notes in Sec.  1910.36, consistent with the new language in 
Sec.  1910.35.
    In the NPRM, OSHA explained the suitability of allowing the IFC to 
serve as an equivalent compliance option. Comments received in response 
to the NPRM from ICC (ID 0157.1) and several construction code-
enforcement agencies supported the change to add the IFC compliance 
alternative. The Jefferson County, CO, Division of Building Safety (ID 
0152.1) indicated that this compliance option ``streamlines the design 
and construction process while providing safety for all occupants 
including workers.'' The New York Department of State, Division of Code 
Enforcement and Administration (ID 0158.1), states that this compliance 
option would ``assist in streamlining our regulatory process'' and 
``result in the potential for reduced construction costs without 
reducing the state's established standards for safety.'' As it did in 
response to the ANPR, the City of Hampton (ID 0159.1) agrees that this 
additional compliance option would be beneficial.
    The only opposition to the addition of the IFC compliance option 
came from the NFPA (ID 0151.1 and 0162.3). Similar to its response to 
the ANPR, NFPA did not address whether the IFC provides a level of 
safety equivalent to subpart E, but rather whether the IFC provides a 
level of safety equivalent to the NFPA 101. OSHA finds that the 
information provided by NFPA does not address whether the IFC serves as 
an effective compliance option to subpart E; therefore, OSHA determined 
that compliance with the exit-route provisions of either the NFPA 101 
or the IFC provides protection at least equivalent to the requirements 
of subpart E.
    Another concern raised by NFPA (ID 0151.1 and 0162.3) was that the 
IFC developed the ICC codes under consensus principles that differ from 
those used to develop NFPA codes. OSHA again maintains that the issue 
of concern is whether the ICC codes provide a level of employee 
protection equal to that provided by subpart E, regardless of the 
method of development. While it is true that OSHA must consider 
consensus standards in developing its mandatory standards, in 
conformance with section 6(b)(8) of the OSH Act, the National 
Technology Transfer and Advancement Act of 1995 (NTTAA), and OMB 
Circular A-119, these documents do not restrict OSHA to using only 
consensus standards. OSHA is not using the ICC codes to promulgate a 
government-unique standard, but rather to allow compliance alternatives 
that provide workers with an equivalent level of safety to that which 
OSHA provides in the existing subpart E requirements.
    NFPA (ID 0151.1) also stated that Section 3(9) of the OSH Act has 
``long established the use of ANSI and NFPA documents as the source of 
OSHA's regulations.'' This provision of the Act, however, does not 
restrict the Agency from using additional standards. OSHA previously 
considered a national consensus standard (NFPA 101), and determined the 
standard was an acceptable compliance alternative. OSHA in this 
rulemaking, however, also determined that the IFC provides at least the 
same level of employee protection as the existing requirement and, 
thus, OSHA has the authority to use the IFC standard, regardless of 
whether it meets the OSH Act's definition of a ``national consensus 
standard'' (as defined in Section 3(9) of the OSH Act).
    The last concern raised by NFPA (ID 0151.1 and 0162.2) is the 
suitability of the IFC codes for existing buildings. IFC Section 1026, 
``Means of Egress for Existing Buildings'' and Section 1027, 
``Maintenance of the Means of Egress,'' address specifically this 
issue. OSHA notes that subpart E does not differentiate between new and 
existing buildings, thus allowing employers to determine the egress 
features needed for employee safety in existing buildings. OSHA further 
notes that paragraph 4.6.5 in the 2009 edition of NFPA 101, allows for 
the modification of any requirements in existing buildings ``where it 
is evident that a reasonable degree of safety is provided.'' OSHA, 
therefore, concludes that both the NFPA 101 and the IFC independently 
provide a degree of flexibility for existing buildings comparable to 
subpart E.
    The ICC (ID 0157.1) raised the issue of whether future editions of 
the IFC would serve as acceptable compliance alternatives to Sec.  
1910.35. The Agency notes that it cannot incorporate by reference the 
latest editions of consensus standards without undertaking new 
rulemaking because such action would delegate the government's 
regulatory authority to consensus standards developing organizations, 
as well as deprive the public of the notice-and-comment period required 
by law. Therefore, each compliance option must specify the edition of 
the corresponding standard, in this case NFPA 101-2009 and the IFC-
2009. OSHA only proposed and evaluated those particular editions for 
equivalency in terms of employee protection.
    Most of the information received in response to both the ANPR and 
the NPRM supports the incorporation of the 2009 editions of the NFPA 
101 and IFC standards in Sec.  1910.35 as compliance alternatives for 
Sec. Sec.  1910.34, 1910.36, and 1910.37. The Agency believes these 
changes will increase compliance flexibility, achieve greater 
compatibility with many State and local jurisdictions, while 
maintaining employee protection.
2. Subpart I
a. Training Certification Records
    The Cadmium and Personal Protective Equipment (PPE) standards 
require employers to verify that affected workers received training 
through a written certification record that includes, at a minimum, the 
name(s) of the workers trained, the date(s) of training, and the types 
of training the workers received. In the NPRM, OSHA proposed removing 
paragraph (f)(4) of the general industry PPE standard, Sec.  1910.132; 
paragraph (e)(4) of the shipyard employment PPE standard Sec.  
1915.152; and paragraph (n)(4) of the general industry and construction 
Cadmium standards, Sec. Sec.  1910.1027 and 1926.1127, respectively, 
all of which require employers to prepare and maintain a written record 
certifying compliance with the training requirements of these sections. 
For the NPRM, the Agency estimated that it takes over 1.8 million hours 
annually for employers to develop and maintain the training-
certification records mandated by the PPE standards in Sec. Sec.  
1910.132 and 1915.152, and more than 3,000 hours annually for employers 
to develop and maintain the training-certification records provision 
required by the Cadmium standards for general industry (Sec.  
1910.1027) and construction (Sec.  1926.1127). In the NPRM, OSHA stated 
that it believed that the training-certification records required by 
the four standards do not provide a safety or health benefit sufficient 
to justify the burden hours and cost to employers, and that employers 
ensure that work practices and use of PPE are consistent with the 
training received by observing employees as they work, not through 
maintaining training-certification records.
    Three commenters opposed the removal of these written training-
record requirements. The BCTD, AFL-CIO (ID 0156.1) stated that ``the 
importance of the written certification [is] to reinforce the 
requirement that employers satisfy

[[Page 33594]]

themselves that their employees are appropriately trained.'' Similarly, 
the AFL-CIO (ID 0160.1) said that ``documentation of training is an 
important element of the training process. It not only serves to 
provide written assurance that the training was, in fact, provided but 
also serves to reinforce and remind the employer that training is 
required to be provided in the first place.'' 3M (ID 0154.1) expressed 
concern that eliminating the requirement to document training may 
convey to employers that OSHA is loosening employer obligations for 
providing PPE and training for employees.
    OSHA does not believe that removal of training-certification record 
requirements indicates a weakening of PPE training requirements as 
suggested by these commenters. First, OSHA believes that worker 
training on the proper use of PPE is essential to ensure its 
effectiveness, and OSHA is not deleting any requirements that employers 
train workers appropriately in the use of PPE. However, OSHA believes 
that the workers can demonstrate knowledge of the proper use of PPE, 
and employers can observe easily such use in the workplace, without the 
need for paper certifications. If a worker is not using the PPE 
properly, the employer can retrain the worker as necessary, thereby 
ensuring that the employee obtains the maximum benefit for the PPE.
    OSHA also notes that, of all of OSHA's substance-specific health 
standards, only the Cadmium standards for general industry and 
construction require written certification to document training. 
Furthermore, OSHA's Respiratory Protection standard, Sec.  1910.134, 
requires in paragraph (k) that employers ensure workers ``can 
demonstrate knowledge'' of the capabilities, limitations, and use of 
respiratory protective equipment, and there is no requirement for 
written certification of training. Thus, for all of these health 
standards, with the exception of the Cadmium standards, OSHA relies on 
demonstration of worker knowledge as evidence that employers provided 
workers with adequate training in the use of PPE.
    OSHA considered the above arguments and does not agree with the 
commenters. While OSHA believes that training workers in the proper 
wear and use of PPE and the hazards associated with exposure to 
Cadmium, as well as other hazardous substances, is essential, it is not 
persuaded by the arguments that written certification improves the 
overall effectiveness of the training. Effective training ensures that 
workers understand the proper work practices, and can reduce rates of 
injuries and illnesses. Removing the certification requirements of 
these standards will not change the requirements for employers to 
provide effective training.
    Therefore, OSHA is removing paragraph (f)(4) of the general 
industry PPE standard (Sec.  1910.132), paragraph (e)(4) of the 
shipyard employment PPE standard, Sec.  1915.152, and paragraph (n)(4) 
of the general industry and construction Cadmium standards, Sec. Sec.  
1910.1027 and 1926.1127, which required employers to prepare and 
maintain a written record certifying compliance with the training 
requirements of these sections.
    In the SIP-III proposal, OSHA also requested comment on 12 other 
standards in general industry, construction, and shipyard employment 
that require employers to prepare written records or documents to 
certify that they complied with training requirements. OSHA received no 
comments in support of revoking these additional (12) requirements.
    The BCTD, AFL-CIO (ID 0156.1) stated that OSHA should consider this 
question in the context of a comprehensive examination of its training 
requirements. 3M (ID 0154.1) suggested that OSHA modify all training 
sections in all OSHA standards to include a training documentation 
section that is consistent with section 7.2.2 of the ANSI/ASSE Z490.1-
2009 standard, Criteria for Accepted Practices in Safety, Health, and 
Environmental Training, which prescribes that employers record specific 
information related to the training workers receive (i.e., date, 
location, instructor credentials). In the future, OSHA may consider 
consolidating all of its requirements in a comprehensive standard; 
however, for now, OSHA is not removing the existing training 
certification recording requirements for those 12 standards.
b. Respiratory Protection
    OSHA is making seven revisions related to the Respiratory 
Protection standard in Sec.  1910.134. The following paragraphs discuss 
each of these revisions.
(1) Updating DOT Regulations Referenced in Sec.  1910.134(i)(4)(i)
    This provision of the Respiratory Protection standard references 
the Department of Transportation (DOT) regulations in 49 CFR 173 and 
178 for retesting air cylinders such as cylinders used with self-
contained breathing apparatus (SCBAs). In August 2002, DOT revised its 
standard, which resulted in the reorganization and renumbering of its 
regulations for testing air cylinders. New subpart C of 49 CFR 180 now 
specifies the general DOT requirements for requalifying air cylinders; 
these requirements replicate the requirements in former 49 CFR parts 
173 and 178 for requalifying air cylinders. In their comments 
supporting this revision, 3M (ID 0154.1) agreed ``that the proposed 
wording will clarify the requirements of the Respiratory Protection 
standard by accurately referring to the appropriate DOT standard.'' 
OSHA did not receive comments opposing this update and, therefore, is 
revising the language in Sec.  1910.134(i)(4)(i) by referencing the new 
DOT standard for cylinder testing at 49 CFR 180 and, accordingly, will 
update this reference as proposed.
(2) Updating the NIOSH Respirator-Certification Requirement in Sec.  
1910.134(i)(9)
    Paragraph (i)(9) of OSHA's Respiratory Protection standard, Sec.  
1910.134, required the employer to use breathing-gas containers marked 
in accordance with the NIOSH respirator-certification standard at 42 
CFR 84. NIOSH reported to OSHA that there is confusion in the regulated 
community as to how this provision applied to after-market cylinders, 
and in its comments to OSHA's Advisory Committee on Construction Safety 
and Health (ACCSH) (Ex. 12.2, 12/11/2009) requested that OSHA revise 
the provision. The purpose of this modification is to clarify that 
after-market cylinders not manufactured under the quality-assurance 
program incorporated as part of the NIOSH approval process for SCBA are 
not acceptable for use. OSHA's proposed revision read, ``The employer 
shall use only the respirator manufacturer's NIOSH-approved breathing-
gas containers, marked and maintained in accordance with the Quality 
Assurance provisions of the NIOSH approval for the SCBA as issued in 
accordance with the NIOSH respirator-certification standard at 42 CFR 
part 84.''
    Dr[auml]ger (ID 0150.1) supported the revision, stating that there 
are ``many aftermarket components that * * * when used either cause the 
NIOSH certification to become void until the respirator is returned to 
its approved configuration or that can cause the respirator to function 
improperly.'' Dr[auml]ger (ID 0150.1) also listed a series of cylinder 
assembly problems that may arise as a result of the use of unapproved 
components.
    3M (ID 0154.1) stated that this issue is a concern for all after-
market

[[Page 33595]]

respirator parts (e.g., breathing hoses) and does not involve only air 
cylinders, but also is relevant to other types of respirators (not just 
SCBAs). However, 3M (ID 0154.1) also believed that other paragraphs of 
the Respiratory standard already address this subject adequately and, 
therefore, the revised language was duplicative and unnecessary. 
Specifically, 3M noted that Sec.  1910.134(d)(1)(ii) addresses this 
issue adequately; this provision states: ``The employer shall select a 
NIOSH-certified respirator. The respirator shall be used in compliance 
with the conditions of its certification.'' 3M believes that ``used in 
compliance with the conditions of its certification'' addresses the 
issue of using parts manufactured, marked and maintained in accordance 
with the quality-assurance provisions of NIOSH approval for all 
respirators, including SCBAs, in 42 CFR 84. Furthermore, 3M believes 
that Sec.  1910.134(h)(4)(i) and (ii) provide adequate control over use 
of after-market cylinders. These provisions state: ``Repairs or 
adjustments to respirators are to be made only by persons appropriately 
trained to perform such operations and shall use only the respirator 
manufacturer's NIOSH-approved parts designed for the respirator,'' and 
``Repairs shall be made according to the manufacturer's recommendations 
and specifications for the type and extent of repairs to be 
performed;''
    OSHA agrees with 3M that the current language in paragraphs (d) and 
(h) of the Respiratory Protection standard adequately covers after-
market SCBA cylinders not manufactured in accordance with the quality-
assurance program required for NIOSH approval. OSHA also found the 
current language sufficient for compliance purposes. Nevertheless, OSHA 
notes that neither paragraph (d) nor (h) specifically refers to after-
market SCBA cylinders and, despite the language in the existing 
requirements, users still have questions with respect to the use of 
after-market SCBA cylinders. Therefore, OSHA believes that adding 
clarification by means of one additional sentence may alleviate any 
confusion and enhance worker protection by making clear that, when 
employers use after-market SCBA cylinders, they must use cylinders 
manufactured in accordance with NIOSH requirements. Accordingly, OSHA 
is revising Sec.  1910.134(i)(9) to read: ``The employer shall use only 
the respirator manufacturer's NIOSH-approved breathing-gas containers, 
marked and maintained in accordance with the Quality Assurance 
provisions of the NIOSH approval for the SCBA as issued in accordance 
with the NIOSH respirator-certification standard at 42 CFR 84.''
(3) Appendix C to Sec.  1910.134
    OSHA is revising question 2a in the OSHA Medical 
Evaluation Questionnaire, Appendix C, Part A, Section 2, of its 
Respiratory Protection standard, Sec.  1910.134, which describes a 
particular medical condition. OSHA believes that the use of the term 
``fits'' is outdated, unnecessary, and offensive. OSHA determined that 
this revision to the questionnaire will have no effect on 
administration of, or responses to, the questionnaire. OSHA received no 
comments opposing this revision. Therefore, OSHA is deleting the word 
``fits,'' leaving only the word ``seizures'' to describe the medical 
condition.
(4) Appendix D to Sec.  1910.134
    To clarify that Appendix D of the Respiratory Protection standard 
(Sec.  1910.34) is mandatory, OSHA is removing paragraph (o)(2) from 
the standard, and revising paragraph (o)(1) of the standard to include 
Appendix D among the mandatory appendices. As discussed in the ANPR and 
the proposal, this revision to paragraph (o)(1) will reduce public 
confusion by clarifying the Agency's purpose regarding Appendix D when 
it published the Respiratory Protection standard on January 8, 1998 (63 
FR 1152): Namely that Appendix D is mandatory. In this regard, 
paragraph (c)(2)(i), the introductory text to paragraph (k), and 
paragraph (k)(6) of the Respiratory standard provided evidence of this 
purpose. These provisions mandate that employers provide voluntary 
respirator users with the information contained in Appendix D. 
Additionally, the title of Appendix D states that it is mandatory.
    In the proposal, OSHA solicited comments from stakeholders 
regarding whether employers understood these provisions, if the 
information was appropriate, and whether clarifying that Appendix D was 
mandatory would increase the burden on employers. The BCTD, AFL-CIO (ID 
0156.1) supported these revisions stating that:

    The proposed changes, which would clearly list Appendix D as a 
mandatory appendix and eliminate regulatory language that suggests 
otherwise, will not impose any new obligations on employers, but 
will instead simply remove a source of confusion and thereby ensure 
that employees are provided with the information they need to use 
respirators properly.

The AFL-CIO (ID 0160.1) also supported the revision, and stated that 
the changes would ensure:

    [T]hat the information contained in Appendix D is required to be 
provided to an employee whenever they voluntarily wear respirators. 
By making it clear that Appendix D is mandatory, doing so now makes 
it conform with paragraph (k)(6) which requires that the information 
in the appendix shall be provided by the employer to workers who 
wear respirators when their use is not required by the respirator 
standard or by the employer. This proposed change eliminates any 
confusion that may occur about the mandatory nature of Appendix D in 
these circumstances and further enhances worker protection with the 
information contained in the appendix.

3M (ID 0154.1) also supported the removal of paragraph (o)(2) from the 
standard. However, 3M expressed concern regarding:

    [W]hether the general reader will note that the title of the 
appendix, ``Appendix D to Sec. 1910.134 (Mandatory) Information for 
Employees Using Respirators When Not Required Under the Standard'' 
is referring to voluntary use of respirators. Voluntary use of 
respirators is a term understood by most readers of the standard. 
`Information for Employees Using Respirators When Not Required Under 
the Standard' may not be clear to the general reader that the title 
refers only to voluntary use. In other words, we believe `voluntary 
use' to be plain English compared to `Information for Employees 
Using Respirators When Not Required Under the Standard.'

    3M also suggests that OSHA modify the title of the appendix to 
``Mandatory When Voluntary Use Is Allowed,'' claiming that the term 
``voluntary use'' is clearer to an employer than the phrase ``When Not 
Required Under the Standard.''
    OSHA decided to delete the confusing and inconsistent language in 
paragraph (o)(2), and revised the language in paragraph (o) of Sec.  
1910.134 to state, ``Compliance with Appendix A, Appendix B-1, Appendix 
B-2, Appendix C, and Appendix D to this section is mandatory.'' 
Regarding 3M's recommendation to change the title of Appendix D, OSHA 
disagrees with 3M that the title proposed by 3M is clearer than the 
current title because the current title makes clear that the appendix 
refers to use of respirators when the standard does not require 
employers to use them. Therefore, OSHA is retaining the current title 
of Appendix D in Sec.  1910.134, which is ``(Mandatory) Information for 
Employees Using Respirators When Not Required Under the Standard.''
(5) Asbestos (Sec.  1915.1001)
    SIP-III addresses several outdated and inconsistent provisions 
contained in the Agency's Asbestos standards covering general industry 
(29 CFR 1910), shipyards (29 CFR 1915), and

[[Page 33596]]

construction (29 CFR 1926). Each of these standards include a section 
entitled ``Respirator Program,'' which specifies the requirements for 
using respiratory protection to protect workers from exposure to 
asbestos. In the final rulemaking to revise OSHA's Respiratory 
Protection standard (Sec.  1910.134), the Agency updated the Asbestos 
standards for general industry and construction so that the program 
requirements would be consistent with the provisions of the revised 
Respiratory Protection standard (see 63 FR 1285 and 1298). However, the 
Agency inadvertently omitted revising the respirator-program 
requirements specified in paragraph (h)(3)(i) of the Asbestos standard 
for shipyards. OSHA is revising the respirator-program requirements 
specified in paragraph (h)(3)(i) of the Asbestos standard for 
shipyards, Sec.  1915.1001, to read the same as paragraphs (g)(2)(i) of 
the Asbestos standard for general industry, Sec.  1910.1001, and 
(h)(2)(i) of the Asbestos standard for construction, Sec.  1926.1101, 
both of which state, ``The employer must implement a respiratory 
protection program in accordance with Sec.  1910.134(b) through (d) 
(except (d)(1)(iii)), and (f) through (m).'' These paragraphs specify 
the requirements for an employer's respirator program with respect to 
asbestos exposure.
    OSHA received no comments in opposition to this revision. 3M (ID 
0154.1) supported making Sec.  1915.001(h)(3)(i) consistent with the 
other asbestos standards, and did not believe it would ``create 
additional compliance requirements.''
    Similarly, OSHA is removing paragraphs (h)(3)(ii), (h)(3)(iii), and 
(h)(4) from the shipyard Asbestos standard at Sec.  1915.1001, which 
address filter changes, washing faces and facepieces to prevent skin 
irritation, and fit testing, respectively. OSHA determined that this 
action is appropriate because paragraphs (h)(3)(ii) and (h)(3)(iii) of 
the Asbestos standard for shipyards duplicate of the continuing-use 
provisions specified in paragraph Sec.  1910.134(g)(2)(ii).
    In addition, the fit-testing requirements provided in paragraph (f) 
of the Respiratory Protection standard either meet or exceed the 
provisions specified in (h)(4) of the shipyard Asbestos standard, 
except that the frequency of fit-testing is different. The shipyard-
employment Asbestos standard at Sec.  1915.1001(h)(4)(ii) previously 
required employers to perform quantitative and qualitative fit testing 
``at the time of initial fitting and at least every 6 months thereafter 
for each employee wearing a negative-pressure respirator.'' The 
Respiratory Protection standard at Sec.  1910.134(f)(2) requires 
employers to fit test employees using a tight-fitting respirator 
``prior to initial use of the respirator, whenever a different 
facepiece * * * is used, and at least annually thereafter.''
    By adding the reference to the Sec.  1910.134 Respiratory 
Protection standard to Sec.  1915.1001(h)(3)(i) of the shipyard 
Asbestos standard, OSHA incorporates the fit-testing requirements of 
Sec.  1910.134(f), which include the requirement to use the OSHA-
accepted qualitative fit-testing and quantitative fit-testing protocols 
and procedures contained in Appendix A of Sec.  1910.134. Accordingly, 
the-fit testing requirements specified in Appendix C of Sec.  1915.1001 
would be redundant; therefore, OSHA is revising Appendix C from Sec.  
1915.1001 to refer to Sec.  1910.134(f). OSHA received no comments in 
response to these proposed changes.
    The Agency determined that these revisions will not increase 
employers' compliance burden, but instead will reduce the burden by 
providing consistency between the shipyard employment Asbestos standard 
and the requirements of the Asbestos standards for general industry and 
construction.
(6) 13 Carcinogens (4-Nitrobiphenyl, etc.) (Sec.  1910.1003)
    In 1996, OSHA combined the 13 separate carcinogen standards into a 
single standard (61 FR 9242, March 7, 1996). As part of this regulatory 
action, the Agency replaced the requirement for use of full-facepiece, 
supplied-air respirators with a requirement to use half-mask 
particulate-filter respirators for the 13 carcinogens. However, four of 
these chemicals (i.e., methyl chloromethyl ether, bis-chloromethyl 
ether, ethyleneimine, and beta-propiolactone) are liquids, not 
particulates, and, therefore, the use of particulate-filter respirators 
is not appropriate to ensure the protection of workers exposed to these 
chemicals
    Based on a recommendation by the National Institute for 
Occupational Safety and Health (NIOSH), OSHA proposed to revise the 13 
Carcinogens standard to require the use of the most protective 
supplied-air respirators available, either a pressure-demand SCBA or a 
full facepiece supplied-air respirator with auxiliary self-contained 
air supply, for these four liquid carcinogens (75 FR 38652). However, 
OSHA invited comment on whether it ``should allow the use of chemical 
cartridges with NIOSH-certified air-purifying half-mask respirators for 
these four liquid carcinogens [on condition that] employers provid[e] 
that the cartridges used to absorb the vapors emitted from these 
chemicals would have an adequate service life.'' (Id.)
    In responding to the SIP-III proposal, 3M recommended that OSHA 
permit the use of organic-vapor chemical cartridges for the four liquid 
carcinogens, provided that employers implement change schedules 
required by paragraph (d)(3)(iii) of OSHA's Respiratory Protection 
standard at Sec.  1910.134 (ID 0154.1). To support this recommendation, 
3M provided information that software models are available that can 
determine the service life of the chemical cartridges used for each of 
the four carcinogens (Id.). Based on this information, 3M concluded 
that ``[t]hese service life estimates and the wide availability of 
organic vapor cartridges indicate organic vapor cartridges are feasible 
options for these four chemicals'' and that ``[t]o require supplied air 
respirators based on old approval criteria appears unnecessary and 
burdensome for employers.'' (Id.)
    However, 3M also acknowledged that no PELs exist for these 
carcinogens that could provide a basis for using the assigned 
protection factors (APFs) listed in Sec.  1910.134 to determine the 
maximum-use concentrations for these chemicals below which employers 
could use half-mask negative-pressure respirators. Therefore, 3M 
believed that it would be ``necessary for OSHA to stipulate either the 
minimum respirator to be used or the minimum respirator assigned 
protection factor required.''
    After reviewing 3M's submission, OSHA determined that the Agency 
does not have sufficient information on the performance of organic-
vapor chemical cartridges with these four substances to include it as 
an alternative. Furthermore, as 3M acknowledged, there are no PELs 
available that would permit employers to determine maximum-use 
concentrations for the purpose of selecting the appropriate type of 
organic-vapor cartridge respirator, nor was sufficient information 
available in the rulemaking record for OSHA to provide guidance on how 
to select the appropriate level of negative-pressure respirator to 
protect employees exposed to these four carcinogens. Given these 
considerations, OSHA concludes that workers would only receive the 
requisite level of protection from a pressure-demand SCBA or a full 
facepiece supplied-air respirator with auxiliary self-contained air 
supply. Therefore, OSHA is revising Sec.  1910.1003(c)(4)(iv) 
accordingly.
(7) 1, 3-Butadiene (Sec.  1910.1051)
    OSHA is removing paragraph (m)(3) from the 1,3-Butadiene standard

[[Page 33597]]

Sec.  1910.1051, which required that employers keep fit-test records 
for employees who use respirators to reduce toxic exposures. The 
Butadiene standard is the only substance-specific standard that 
includes this requirement, and the provision duplicates the requirement 
in OSHA's Respiratory Protection standard (Sec.  1910.134) to maintain 
fit test records. Both the American Society of Safety Engineers (ID 
0021.1) and 3M (ID 0154.1) supported OSHA's proposal to remove the 
paragraph and rely instead on the fit-testing recordkeeping 
requirements in Sec.  1910.134. OSHA received no comments in opposition 
to this revision.
3. Subpart J
a. Definition of ``Potable Water'' (Sec.  1910.141(a)(2))
    OSHA is revising the definition of the term ``potable water'' in 
the Sanitation standards for general industry at Sec.  1910.141(a)(2), 
and construction at Sec.  1926.51(a)(6), and the Field Sanitation 
standard for agriculture at Sec.  1928.110(b). As explained in the 
NPRM, OSHA adopted the previous definition from a Public Health Service 
code that no longer exists. The final rule now defines potable water as 
``water that meets the standards for drinking purposes of the state or 
local authority having jurisdiction, or water that meets the quality 
standards prescribed by the U.S. Environmental Protection Agency's 
National Primary Water Regulations (40 CFR 141).'' The new definition 
will both update, and make consistent, all of the requirements for 
employers to provide potable water to workers.
    In their comment, the AFL-CIO (ID 0160.1) stated, ``We're pleased 
that the agency is revising this requirement to eliminate an outdated 
definition.'' A-Z Safety (ID 0149.1) asked OSHA to update all of Sec.  
1926.51 consistent with the current ANSI A10.25 Construction Sanitation 
standard, which addresses hand washing, water use, Portland cements, 
sanitary washrooms, and other sanitation requirements. Although OSHA 
may consider a full update of Sec.  1926.51 in the future, the Agency 
did not propose such an update and, therefore, cannot update Sec.  
1926.51 in this final rulemaking. OSHA received no comments opposing 
these proposed revisions.
b. Washing Facilities (Sec.  1910.141(d))
    OSHA is revising the Bloodborne Pathogens standard by removing the 
word ``hot'' from the phrase ``hot air drying machines'' in the 
definition of ``handwashing facilities'' at Sec.  1910.1030(b), as 
proposed. This revision will permit employers to use high-velocity air 
blowers in the workplace. The definition previously read: ``Handwashing 
Facilities means a facility providing an adequate supply of running 
potable water, soap, and single use towels or hot air drying 
machines.''
    When OSHA published the Bloodborne Pathogens standard, adequate 
non-heated, high velocity air blowers were not available. Since then, 
OSHA received information that current technology uses high-velocity, 
non-heated air, rather than hot or warm air, to dry hands. (Dyson B2B 
Inc; Dyson; ID 0015) Employers may still use hot-/warm-air drying 
machines, as well as non-heated air blowers or other air-drying 
machines that may become available as technology advances. OSHA is 
similarly revising three other Sanitation standards: The Sanitation 
standards for marine terminals at Sec.  1917.127(a)(1)(iii), 
longshoring at Sec.  1918.95(a)(1)(iii), and construction at Sec.  
1926.51(f)(3)(iv). OSHA received no comments in response to the 
proposal opposing these revisions.
4. Slings (Sec.  1910.184)
    In 1996, the National Association of Chain Manufacturers (NACM) 
petitioned OSHA to adopt requirements of the then-current ANSI B30.9 
standard, as it believed that the existing OSHA standard was not as 
safe as the ANSI standard. Based on the record developed during the 
SIP-III rulemaking, OSHA is updating its standards regulating the use 
of slings at Sec.  1910.184 in general industry, Sec. Sec.  1915.112, 
1915.113, and 1915.118 in shipyard employment, and Sec.  1926.251 in 
construction by removing outdated tables that specify safe working 
loads, and revising other provisions (e.g., Sec. Sec.  1910.184(e)(6) 
and 1915.112) that reference the outdated tables. The load-capacity 
tables previously designated in these standards, based on the 1971 ANSI 
B30.9 standard, are now obsolete and no longer conform to the load-
capacity tables of the updated ANSI B30.9 standard. The outdated tables 
are being replaced with a requirement that prohibits employers from 
loading slings in excess of the recommended safe working load as 
prescribed on permanently affixed identification markings. The 
revisions also prohibit the use of slings that do not have permanently 
affixed identification markings. The revisions are the same as those 
proposed, and no comments were received opposing these revisions.
    The BCTD, AFL-CIO (ID 0156.1) supported the revisions, stating:

    [W]orker safety will be enhanced by removing from the sling 
standard references to outdated working-load tables and by 
strengthening the existing requirements that employers comply with 
the rated capacities specified by the slings' manufacturers. In this 
regard, we agree that employers must ensure that the identification 
markings provided by the manufacturers are affixed to the slings 
whenever they are in use; that in loading slings, employers must be 
prohibited from exceeding the load capacity indicated on the 
identification markings; and that any sling from which the markings 
have become detached must be taken out of service until new labels 
are obtained and affixed.

In response to OSHA's request for information regarding the use of 
slings (see 75 FR 38654), the BCTD, AFL-CIO stresses the following four 
points:

    (1) It is standard practice for manufacturers in this country to 
produce slings in accordance with the specifications prescribed by 
the ASME/ANSI B30.9 slings standard.
    (2) In accordance with B30.9, manufacturers affix labels to 
slings either by wires or chains or, in the case of synthetic 
slings, by sewing them into the fabric.
    (3) The labels provided by sling manufacturers generally list 
their names or trademarks, the safe load capacity, and the type of 
material, which is what Subpart H currently requires for slings made 
of alloy steel chains and synthetic webbing. See 29 CFR 
1926.251(b)(1) and (e)(1)(i)-(iii).
    (4) With use, the tags and markings can become detached or 
damaged. However, just as employers are required to ensure that the 
slings themselves retain their integrity, it is important that they 
be required to replace tags that become detached or otherwise 
unreadable, so the workers loading the slings have readily 
accessible information about the limits of the load capacity.

OSHA determined that these revisions will eliminate duplicative, 
inconsistent, and outdated information, thus minimizing confusion 
regarding the rated capacity of any type of sling used by the 
employers, and also increasing worker safety. Reliance on the 
information marked on the sling simplifies compliance for the employers 
by ensuring that employers use slings with readily available, up-to-
date load ratings. Consequently, OSHA is removing the previous load-
capacity tables for slings from the following standards: Sec.  1910.184 
(general industry; tables N-184-1, and N-184-3 through N-184-22); Sec.  
1915.118 (shipyard employment; tables G-1 through G-5, G-7, G-8, and G-
10), including references to these tables in Sec.  1915.112 and Sec.  
1915.113; and Sec.  1926.251 (construction; tables H-1 and H-3 through 
H-19). In their place, OSHA is adding identical requirements for 
identification markings on wire-, natural-, and synthetic-fiber rope 
slings in Sec. Sec.  1910.184 and 1926.251, as well as for manila rope 
and manila-rope slings, wire rope and wire-rope slings, and

[[Page 33598]]

chain and chain slings in Sec.  1915.112. The final rule provides 
similar requirements for shackles in Sec.  1915.113 and Sec.  1926.251.
    In addition, OSHA is requiring that, in using the sling, employers 
follow the safe working-load capacity information on the identification 
markings affixed to slings by the sling manufacturer. Further, if the 
sling is missing its identification marking, consistent with the latest 
ASME/ANSI B30.9 standard, employers must remove the sling from service 
until they reaffix the identification markings.
5. Subpart T
    OSHA is removing two unnecessary requirements from paragraphs 
(b)(3)(i) and (b)(5) of its Commercial Diving Operations standard at 
Sec.  1910.440. Paragraph (b)(3)(i) required employers to retain dive-
team member medical records for five years, even though the standard 
contains no requirement for diver medical examinations. A 1979 court 
decision resulted in the removal of the requirement to provide diver 
medical examinations (formerly located at Sec.  1910.411). This 
revision will merely remove the corresponding medical recordkeeping 
requirement from the standard. Paragraph (b)(5) consists of two 
provisions--paragraphs (5)(i) and (ii). Paragraph (5)(i) requires 
successor employers to receive and retain all diving and medical 
records specified by the standard, while paragraph (5)(ii) requires 
employers to forward these diving and medical records to the National 
Institute for Occupational Safety and Health (NIOSH) in the absence of 
a successor employer. Neither of these requirements is necessary. The 
requirement in paragraph (5)(i) is unnecessary because Sec.  
1910.1020(h), referenced in paragraph (b)(4) of Sec.  1910.440, 
specifies the same requirement. OSHA proposed to remove paragraph 
(5)(ii) as part of its effort to remove provisions from its standard 
that require employers to transfer records to NIOSH (see the discussion 
under section A.6.a below). OSHA also is correcting a typographical 
error in paragraph (b)(4) that refers to Sec.  1910.20 instead of Sec.  
1910.1020.
    These revisions duplicate the revisions included in the proposed 
rule. OSHA received no comments on any of these proposed changes.
6. Subpart Z
    OSHA is deleting the requirements to transfer records to the 
National Institute for Occupational Safety and Health (NIOSH) for 15 
substance-specific standards in subpart Z, as well as from the standard 
that regulates access to employee exposure and medical records (Sec.  
1910.1020). The following paragraphs also describe changes to OSHA's 
general industry and construction Lead standards, and to OSHA's 
Laboratories standard. OSHA received no comments in opposition to these 
proposed changes.
a. Transfer of Exposure and Medical Records to NIOSH
    OSHA proposed removing provisions in its substance-specific 
standards that require employers to transfer exposure and medical 
records to NIOSH. Most of OSHA's existing substance-specific standards, 
as well as the Access to Employee Exposure and Medical Records standard 
at Sec.  1910.1020, required employers to transfer specified medical 
and exposure records to NIOSH when an employer ceased to do business 
and left no successor, when the required period for retaining the 
records expired, or when the employer terminates a worker's employment 
(including retirement or death).
    NIOSH provided the following testimony at an ACCSH meeting in 
December, 2009:

    NIOSH believes that at the time the records transfer 
requirements were incorporated into the OSHA standards, it was 
somewhat naively believed that the records would provide a valuable 
research resource. Clearly, however, this has not been the case for 
a number of reasons. Based on our experience over the past 30 years, 
NIOSH believes that the significant costs associated with the 
records transfer requirements cannot be justified in light of the 
complete lack of scient