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OSHA Final Rules

Revising Standards Referenced in the Acetylene Standard   [8/11/2009]
[PDF]
FR Doc E9-18644
[Federal Register: August 11, 2009 (Volume 74, Number 153)]
[Rules and Regulations]               
[Page 40441-40447]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au09-20]                         


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Part IV





Department of Labor





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Occupational Safety and Health Administration



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29 CFR Part 1910



Revising Standards Referenced in the Acetylene Standard; Final Rule


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. OSHA-2008-0034]
RIN 1218-AC08

 
Revising Standards Referenced in the Acetylene Standard

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

ACTION: Direct final rule; request for comments.

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SUMMARY: In this direct final rule, the Agency is revising its 
Acetylene Standard for general industry by updating references to 
standards published by standards developing organizations (i.e., ``SDO 
standards''). This rulemaking is a continuation of OSHA's ongoing 
effort to update references to SDO standards used throughout its rules.

DATES: This direct final rule will become effective on November 9, 2009 
unless significant adverse comment is received by September 10, 2009. 
If adverse comment is received, OSHA will publish a timely withdrawal 
of the rule in the Federal Register. Comments to this direct final rule 
(including comments to the information-collection (paperwork) 
determination described under the section titled Procedural 
Determinations), hearing requests, and other information must be 
submitted by September 10, 2009. All submissions must bear a postmark 
or provide other evidence of the submission date. (The following 
section titled ADDRESSES describes methods available for making 
submissions.)
    The incorporation by reference of specific publications listed in 
this direct final rule is approved by the Director of the Federal 
Register as of November 9, 2009.

ADDRESSES: Submit comments and hearing requests as follows:
     Electronic. Submit comments electronically to http://
www.regulations.gov, which is the Federal eRulemaking Portal. Follow 
the instructions online for submitting comments.
     Facsimile. OSHA allows facsimile transmission of comments 
and hearing requests that are 10 pages or fewer in length (including 
attachments). Send these documents to the OSHA Docket Office at (202) 
693-1648; OSHA does not require hard copies of these documents. Instead 
of transmitting facsimile copies of attachments that supplement these 
documents (e.g., studies, journal articles), commenters must submit 
these attachments, in triplicate hard copy, to the OSHA Docket Office, 
Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200 
Constitution Ave., NW., Washington, DC 20210. These attachments must 
clearly identify the sender's name, date, subject, and docket number 
(i.e., OSHA-2008-0034) so that the Agency can attach them to the 
appropriate document.
     Regular mail, express delivery, hand (courier) delivery, 
and messenger service. Submit three copies of comments and any 
additional material (e.g., studies, journal articles) to the OSHA 
Docket Office, Docket No. OSHA-2008-0034 or RIN No. 1218-AC08, 
Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200 
Constitution Ave., NW., Washington, DC 20210; telephone: (202) 693-
2350. (OSHA's TTY number is (877) 889-5627.) Note that security-related 
procedures may result in significant delays in receiving comments and 
other written materials by regular mail. Please contact the OSHA Docket 
Office for information about security procedures concerning delivery of 
materials by express delivery, hand delivery, and messenger service. 
The hours of operation for the OSHA Docket Office are 8:15 a.m. to 4:45 
p.m., e.t.
     Instructions. All submissions must include the Agency name 
and the OSHA docket number (i.e., OSHA Docket No. OSHA-2008-0034). 
Comments and other material, including any personal information, are 
placed in the public docket without revision, and will be available 
online at http://www.regulations.gov. Therefore, the Agency cautions 
commenters about submitting statements they do not want made available 
to the public, or submitting comments that contain personal information 
(either about themselves or others) such as Social Security numbers, 
birth dates, and medical data.
    OSHA requests comments on all issues related to this direct final 
rule. It also welcomes comments on its findings that this direct final 
rule would have no negative economic, paperwork, or other regulatory 
impacts on the regulated community. This direct final rule is the 
companion document to a notice of proposed rulemaking also published in 
the ``Proposed Rules'' section of today's Federal Register. If OSHA 
receives no significant adverse comment on this direct final rule, it 
will publish a Federal Register document confirming the effective date 
of this direct final rule and withdrawing the companion proposed rule. 
The confirmation may include minor stylistic or technical corrections 
to the document. For the purpose of judicial review, OSHA considers the 
date that it confirms the effective date of the direct final rule to be 
the date of issuance. However, if OSHA receives significant adverse 
comment on the direct final rule, it will publish a timely withdrawal 
of this direct final rule and proceed with the proposed rule, which 
addresses the same revisions to the Acetylene Standard.
     Docket. The electronic docket for this direct final rule 
established at http://www.regulations.gov lists most of the documents 
in the docket. However, some information (e.g., copyrighted material) 
is not publicly available to read or download through this Web site. 
All submissions, including copyrighted material, are available for 
inspection and copying at the OSHA Docket Office. Contact the OSHA 
Docket Office for assistance in locating docket submissions.

FOR FURTHER INFORMATION CONTACT: Press inquiries. Contact Jennifer 
Ashley, OSHA Office of Communications, Room N-3647, U.S. Department of 
Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: 
(202) 693-1999.
    General and technical information. Contact Ted Twardowski, Office 
of Safety Systems, Directorate of Standards and Guidance, Room N-3609, 
OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Washington, DC 20210; telephone: (202) 693-2255; fax: (202) 693-1663.

SUPPLEMENTARY INFORMATION:
    Copies of this Federal Register notice. Electronic copies are 
available at http://www.regulations.gov. This Federal Register notice, 
as well as news releases and other relevant information, also are 
available at OSHA's Webpage at http://www.osha.gov.
    Availability of Incorporated Standards. The standards published by 
the Compressed Gas Association and the National Fire Protection 
Association required in Sec.  1910.102 are incorporated by reference 
into this section with the approval of the Director of the Federal 
Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any 
edition other than the editions specified in Sec.  1910.102, the 
Occupational Safety and Health Administration (OSHA) must publish a 
notice of change in the Federal Register and the material must be 
available to the public. All approved material is available for 
inspection at the National Archives and Records

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Administration (NARA). For information on the availability of this 
material at NARA, telephone 202-741-6030, or go to: http://
www.archives.gov/federal_register/code_of_federal_regulations/ibr_
locations.html. Also, the material is available for inspection at any 
OSHA Regional Office or the OSHA Docket Office (U.S. Department of 
Labor, 200 Constitution Avenue, NW., Room N-2625, Washington, DC 20210; 
telephone 202-693-2350 (TTY number: 877-889-5627)).

Table of Contents

I. Background
II. Direct Final Rulemaking
III. Summary and Explanation of Revisions to the Acetylene Standard
IV. Procedural Determinations
    A. Legal Considerations
    B. Final Economic Analysis and Regulatory Flexibility Act 
Certification
    C. OMB Review Under the Paperwork Reduction Act of 1995
    D. Federalism
    E. State-Plan States
    F. Unfunded Mandates Reform Act of 1995
    G. Public Participation
V. Authority and Signature

I. Background

    This action is part of a rulemaking project instituted by the 
Occupational Safety and Health Administration (``OSHA'' or ``the 
Agency'') to update OSHA standards that reference or include language 
from outdated standards published by standards developing organizations 
(``SDO standards'') (69 FR 68283). The SDO standards referenced in 
OSHA's Acetylene Standard (29 CFR 1910.102) are among the SDO standards 
that the Agency identified for revision.
    OSHA adopted the Acetylene Standard in 1974 pursuant to Section 
6(a) of the Occupational Safety and Health Act of 1970 (OSH Act; 29 
U.S.C. 651, 655). This section allowed OSHA, during the first two years 
after passage of the OSH Act, to adopt existing Federal and national 
consensus standards as OSHA safety and health standards, including the 
current Acetylene Standard.
    After OSHA announced the SDO rulemaking project, the Agency met 
with the Compressed Gas Association (``CGA'') about the rulemaking 
project. CGA, a private standards organization, provided detailed 
recommendations on updating SDO standards referenced in OSHA standards, 
including the Acetylene Standard (Ex. OSHA-2008-0034-0003). Thereafter, 
the U.S. Chemical Safety and Hazard Investigation Board (``Chemical 
Safety Board'') also recommended that OSHA update the SDO standards 
referenced in the Acetylene Standard (Ex. OSHA-2008-0034-0004).

II. Direct Final Rulemaking

    In a direct final rulemaking, an agency publishes a direct final 
rule in the Federal Register along with a statement that the rule will 
become effective unless the agency receives significant adverse comment 
within a specified period. The agency also publishes concurrently an 
identical proposed rule. If the agency receives no significant adverse 
comment, the direct final rule goes into effect. If, however, the 
agency receives significant adverse comment, the agency withdraws the 
direct final rule and treats the comments as submissions on the 
proposed rule.
    OSHA uses direct final rules in the SDO rulemaking project because 
it expects the rules to: Be noncontroversial; provide protection to 
employees that is at least equivalent to the protection afforded to 
them by the outdated SDO standard; and impose no significant new 
compliance costs on employers (69 FR 68283, 68285). OSHA is using 
direct final rules to update or, when appropriate, revoke references to 
outdated national SDO standards in OSHA rules (see, e.g., 69 FR 68283, 
70 FR 76979, and 71 FR 80843).
    For purposes of the direct final rule, a significant adverse 
comment is one that explains why the rule would be inappropriate, 
including challenges to the rule's underlying premise or approach. In 
determining whether a comment necessitates withdrawal of the direct 
final rule, OSHA will consider whether the comment raises an issue 
serious enough to warrant a substantive response in a notice-and-
comment process. OSHA will not consider a comment recommending 
additional revisions to a rule to be a significant adverse comment 
unless the comment states why the direct final rule would be 
ineffective without the revisions. If OSHA receives a timely 
significant adverse comment, the Agency will publish a Federal Register 
notice withdrawing the direct final rule no later than 90 days after 
the publication date of the notice.
    OSHA believes that the revisions made to the Acetylene Standard by 
this direct final rule do not compromise the safety of employees, and 
instead enhance employee protection. For example, the updated Acetylene 
Standard includes mandatory requirements for acetylene piping systems, 
has special requirements for high-pressure piping systems, and 
prohibits storage of acetylene cylinders in confined spaces--
requirements that are not included in the current SDO standards. The 
updated SDO standards also provide employers with new and more 
extensive information than the current standards, which should 
facilitate compliance. OSHA believes that replacing the unenforceable 
SDO standard in Sec.  1910.102(b) (i.e., Compressed Gas Association 
Pamphlet G-1.3-1959; see discussion below under Section III.A (``Sec.  
1910.102(c)--Generators and filling cylinders'')) clarifies employers' 
compliance obligations and prevents inappropriate enforcement action, 
while also increasing employee protection.
    The Agency determined that updating and replacing the SDO standards 
in the Acetylene Standard is appropriate for direct final rulemaking. 
As described below, the revisions will make the requirements of OSHA's 
Acetylene Standard consistent with current industry practices, thereby 
eliminating confusion and clarifying employer obligations. Eliminating 
confusion and clarifying employer obligations should increase employee 
safety while reducing compliance costs.

III. Summary and Explanation of Revisions to the Acetylene Standard

    This direct final rule updates the SDO standards referenced in the 
three paragraphs that comprise the Acetylene Standard. The Compressed 
Gas Association (CGA) published several editions of these SDO standards 
after OSHA adopted them in 1974, and one of these standards (i.e., 
Compressed Gas Association Pamphlet G-1.4-1966), is no longer available 
for purchase from CGA. Therefore, to ensure that employers have access 
to the latest safety requirements for managing acetylene, this 
rulemaking is adopting the requirements specified in the most recent 
versions of the SDO standards.
    The following discussion provides a summary of the revisions OSHA 
is making to paragraphs (a), (b), and (c) of the Acetylene Standard.

A. Section 1910.102(a)--Cylinders

    For paragraph (a) of Sec.  1910.102, the direct final rule is 
replacing the reference to the 1966 edition of CGA Pamphlet G-1 
(``Acetylene'') (Ex. OSHA-2008-0034-0005) with the most recent (i.e., 
2003) edition of that standard (also entitled ``Acetylene'') ((Ex. 
OSHA-2008-0034-0006). According to CGA, the 2003 edition is the fifth 
revision of the standard since OSHA adopted the 1966 edition in 1974 
(Ex. OSHA-2008-0034-0003).
    In reviewing CGA-1-2003, OSHA identified two provisions in that 
standard that appear to be substantive

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revisions from the 1966 edition. First, the last provision of paragraph 
5.2 in the 2003 edition prohibits storing acetylene cylinders in 
confined spaces such as drawers, closets, unventilated cabinets, 
automobile trunks, or toolboxes. In addition, the document recommends 
that acetylene cylinders should not be stored or transported in 
automobiles or any enclosed vehicles. The 1966 edition contains neither 
the above prohibition nor recommendation. Second, both editions 
recommend flow rates that will minimize withdrawal of liquid solvent 
when releasing acetylene from a cylinder; however, the recommended flow 
rates differ between the two editions. Paragraph 5.3.3.13 of the 1966 
edition specifies that the flow rate should be one-seventh of the 
capacity of the cylinder per hour regardless of the duration of use, 
while paragraph 6.2 of the 2003 edition recommends a flow rate of one-
tenth of the cylinder capacity per hour during intermittent use, and 
one-fifteenth of the cylinder capacity per hour during continuous 
use.\1\
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    \1\ Note that both of these flow-rate provisions are advisory, 
not mandatory.
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    Other differences between the 1966 and 2003 editions of CGA G-1 
include adding the following sentence to the provision warning 
employers to avoid abnormal mechanical shocks that could damage 
cylinders, valves, and pressure-relief devices: \2\ ``This [avoiding 
abnormal mechanical shocks] is especially important on those small 
cylinders not equipped with protection caps.'' This sentence notifies 
employers that the valves of small cylinders are especially susceptible 
to damage (and possible release of acetylene) because protective caps 
or guards do not cover the valves. Similarly, in the 2003 edition, CGA 
added a provision to section 6.2 (``Withdrawing acetylene from 
cylinders'') \3\ requiring employers to ``[v]isually examine the CGA 
connection on the cylinder and remove any visible contamination before 
connecting the regulator. Clean out the contaminant using nitrogen, 
air, or a clean rag. Avoid opening an acetylene cylinder valve without 
a suitable regulator and flow restrictor such as a torch attached.'' 
This provision prevents the following two hazards: (1) Acetylene-
related explosions (by removing contaminants that could serve as an 
ignition source), and (2) massive releases of acetylene into the 
workplace (by notifying employers to use suitable regulators and 
restrictors to control the rate at which acetylene flows from a 
cylinder).
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    \2\ See paragraph 5.2.1 of the 1966 edition, and the first 
paragraph of section 6.1 of the 2003 edition.
    \3\ Section 5.3 of the 1966 version regulates the withdrawal of 
acetylene from cylinders.
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    The remaining differences between the 1966 and 2003 editions 
include: Making plain-language revisions to the text; providing 
measurements using the International System of Units; listing current 
Department of Transportation specifications; presenting guidance in the 
2003 edition on how to handle leaking cylinders; and noting in the 2003 
edition that commercial acetylene generally is considered nontoxic. CGA 
also added text to the 2003 edition that prohibits tightening leaking 
fuseplugs or valves while the cylinder is under pressure, as well as 
enhanced illustrations (Figure 1) of acetylene cylinder-shell 
constructions.
    OSHA believes that the provisions of CGA G-1-2003 are consistent 
with the usual and customary practice of employers in the industry, and 
has determined that incorporating CGA G-1-2003 into paragraph (a) of 
Sec.  1910.102 does not add compliance burden for employers. OSHA 
invites the public to comment on whether the revisions made to CGA G-1-
1966 in the 2003 edition of the standard represent current industry 
practice.

B. Section 1910.102(b)--Piped Systems

    CGA no longer publishes CGA Pamphlet G-1.3-1959 (``Acetylene 
Transmission for Chemical Synthesis'') (Ex. OSHA-2008-0034-0007). In 
addition, both this standard and its recent replacement (i.e., Part 3 
of CGA G-1.2-2006 (``Acetylene piping''), (Ex. OSHA-2008-0034-0008)) 
consist entirely of advisory provisions. Under existing law (see, e.g., 
Usery v. Kennecott Copper Corporation (577 F.2d 1113 (10th Cir. 1977)), 
OSHA cannot enforce advisory provisions. Therefore, this direct final 
rule revises paragraph (b) of Sec.  1910.102 to refer instead to the 
requirements for acetylene piping systems specified in Chapter 9 
(``Acetylene Piping'') of NFPA 51A-2006 (``Standard for Acetylene 
Charging Plants'') (Ex. OSHA-2008-0034-0009) or Chapter 7 (``Acetylene 
Piping'') of NFPA 51A-2001 (``Standard for Acetylene Charging Plants'') 
(Ex. OSHA-2008-0034-0010). Whether employers use NFPA 51A-2006 or NFPA 
51A-2001 depends on when the facilities, equipment, structures, or 
installations used to generate acetylene or to charge (fill) acetylene 
cylinders were approved for construction or installation. (See 
discussion of which NFPA standard applies in Section III.C below 
(``Sec.  1910.102(c)--Generators and filling cylinders'').)
    The piping-system requirements specified in NFPA 51A-2006 or NFPA 
51A-2001 are not as extensive as the requirements contained in either 
CGA Pamphlet G-1.3-1959 or Part 3 of CGA G-1.2-2006. However, OSHA 
believes that the piping-system requirements in the two NFPA standards 
will provide employers with important information for installing and 
maintaining piping systems used to transfer acetylene until a more 
detailed (and enforceable) standard becomes available. In addition, 
unlike CGA Pamphlet G-1.3-1959, the two NFPA standards have special 
requirements for high-pressure acetylene piping systems, which OSHA 
believes will likely increase employee protection. Meanwhile, paragraph 
(b)(iv) of Sec.  1910.102 refers employers to Part 3 of CGA G-1.2-2006 
for additional information on acetylene piping systems.
    OSHA believes that the revisions to Sec.  1910.102(b) represent the 
usual and customary practice of the industry today. Therefore, OSHA 
concludes that making these revisions will not impose an additional 
compliance burden on employers. Accordingly, OSHA requests public 
comment on the extent to which the revisions made in Sec.  1910.102(b) 
represent current industry practice.

C. Section 1910.102(c)--Generators and Filling Cylinders

    CGA no longer publishes the consensus standard referenced in 
paragraph (c) of CGA G-1.4-1966 (``Standard for Acetylene Charging 
Plants'') (Ex. OSHA-2008-0034-0011). In 1970, the National Fire 
Protection Association (NFPA) adopted this CGA standard as NFPA 51A 
(``Standard for Acetylene Charging Plants'') (Ex. OSHA-2008-0034-0012). 
NFPA manages revisions to this standard, the latest versions of which 
it published in 2001 and 2006.
    Section 1.4.1 of the 2006 standard excepts from the standard any 
``facilities, equipment, structures, or installations that existed or 
were approved for construction or installation prior to the effective 
date of the standard.'' \4\ This section also states, ``Where 
specified, the provisions of this standard shall be retroactive.'' \5\ 
Therefore, this provision requires compliance with the entire standard 
only when facilities, equipment, structures, or installations were 
approved for construction or installation on or after February 16, 
2006, the

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effective date of the 2006 standard. However, the 2001 edition of NFPA 
51A (Ex. OSHA-2008-0034-0013) has no effective-date provision, and 
applies retroactively to all facilities, equipment, structures, or 
installations that existed (or were approved for construction and 
installation) prior to February 16, 2006.
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    \4\ OSHA interprets the phrase ``were approved for construction 
or installation prior to the effective date of the standard'' to 
mean that construction and installation occurred on or after the 
effective date of the standard.
    \5\ OSHA found no such provisions in the standard.
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    OSHA is requiring in this direct final rule that employers comply 
with NFPA 51A-2001, provided they demonstrate that the installations, 
facilities, equipment, or structures used to generate acetylene or to 
charge (fill) acetylene cylinders existed, or were approved for 
construction or installation, prior to February 16, 2006. Employers 
having installations, facilities, equipment, or structures approved for 
construction or installation on or after February 16, 2006, must comply 
with NFPR 51A-2006.\6\ By removing the reference to an outdated, 
unavailable standard from Sec.  1910.102(c), and updating the 
referenced standards to be consistent with current industry practices, 
OSHA believes that the revisions to Sec.  1910.102(c) will reduce 
regulatory confusion and ensure up-to-date employee protection.
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    \6\ While not mandated, OSHA encourages employers covered by 
NFPA 51A-2001 to comply with the requirements of NFPA 51A-2006.
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    While many of the differences between CGA G-1.4-1966 and NFPA 51A-
2001 and -2006 involve minor revisions to the text, usually to update 
the terminology or to improve the comprehensibility of the text, a 
number of the differences are substantive. OSHA compiled lists of these 
substantive differences, and is making these lists available in the 
docket at http://www.regulations.gov (see Exs. OSHA-2008-0034-0014 and 
-0015).
    OSHA presumes that employers in the industry currently apply the 
requirements of NFPA 51A-2001 to installations, facilities, equipment, 
or structures constructed or installed prior to February 16, 2006, and 
that they apply NFPA 51A-2006 to installations, facilities, equipment, 
or structures approved for construction or installation on or after 
February 16, 2006. Consequently, OSHA has determined that this direct 
final rule will impose no additional compliance burden on these 
employers. OSHA invites the public to comment on the extent to which 
employers involved in charging acetylene cylinders already comply with 
NFPA 51A-2001 and -2006, as well as any additional burden this direct 
final rule imposes on these employers.

IV. Procedural Determinations

A. Legal Considerations

    The purpose of the Occupational Safety and Health Act of 1970 (29 
U.S.C. 651 et seq.) is ``to assure so far as possible every working man 
and woman in the nation safe and healthful working conditions and to 
preserve our human resources.'' 29 U.S.C. 651(b). To achieve this goal, 
Congress authorized the Secretary of Labor to promulgate and enforce 
occupational safety and health standards. 29 U.S.C. 655(b), 654(b). A 
safety or health standard is a standard ``which requires conditions, or 
the adoption or use of one or more practices, means, methods, 
operations, or processes, reasonably necessary or appropriate to 
provide safe or healthful employment or places of employment.'' 29 
U.S.C. 652(8). A standard is reasonably necessary or appropriate within 
the meaning of Section 652(8) when a significant risk of material harm 
exists in the workplace and the standard would substantially reduce or 
eliminate that workplace risk.
    This direct final rule will not reduce the employee protections put 
into place by the standards OSHA is updating under this rulemaking. In 
fact, this rulemaking likely will enhance employee safety by adding 
requirements, eliminating confusing requirements, and clarifying 
employer obligations. Therefore, it is unnecessary to determine 
significant risk, or the extent to which this rule would reduce that 
risk, as typically is required by Industrial Union Department, AFL-CIO 
v. American Petroleum Institute (448 U.S. 607 (1980)).

B. Preliminary Economic Analysis and Regulatory Flexibility Act 
Certification

    The direct final rule is not ``economically significant'' as 
specified by Executive Order 12866, or a ``major rule'' under Section 
804 of the Small Business Regulatory Enforcement Fairness Act of 1996 
(``SBREFA''; 5 U.S.C. 804). The direct final rule does not impose 
significant additional costs on any private- or public-sector entity, 
and does not meet any of the criteria for an economically significant 
or major rule specified by Executive Order 12866 and the relevant 
statutes. (While not economically significant, as part of OSHA's 
regulatory agenda, the direct final rule is a ``significant regulatory 
action'' under Executive Order 12866.)
    The direct final rule simply updates references to outdated SDO 
standards in OSHA's Acetylene Standard. The Agency concludes that the 
revisions will not impose any additional costs on employers because it 
believes that the updated SDO standards represent the usual and 
customary practice of employers in the industry. Consequently, the 
direct final rule imposes no costs on employers. Therefore, OSHA 
certifies that it will not have a significant impact on a substantial 
number of small entities. Accordingly, the Agency is not preparing a 
regulatory flexibility analysis under the SBREFA (5 U.S.C. 601 et 
seq.).

C. OMB Review Under the Paperwork Reduction Act of 1995

    Neither the existing nor updated SDO standards addressed by this 
direct final rule contain collection of information requirements. 
Therefore, this direct final rule does not impose or remove any 
information collection requirements for purposes of the Paperwork 
Reduction Act of 1995, 44 U.S.C. 3501 et seq. and 5 CFR part 1320. 
Accordingly, the Agency does not have to prepare an Information 
Collection Request in association with this rulemaking.
    Members of the public may respond to this paperwork determination 
by sending their written comments to the Office of Information and 
Regulatory Affairs, Attn: OSHA Desk Officer (RIN 1218-AC08), Office of 
Management and Budget, Room 10235, 725 17th Street, NW., Washington, DC 
20503. The Agency encourages commenters to submit these comments to the 
rulemaking docket, along with their comments on other parts of the 
direct final rule. For instructions on submitting these comments and 
accessing the docket, see the sections of this Federal Register notice 
titled DATES and ADDRESSES. However, OSHA will not consider any comment 
received on this paperwork determination to be a ``significant adverse 
comment'' as specified under Section II (``Direct Final Rulemaking'') 
of this notice.
    To make inquiries, or to request other information, contact Mr. 
Todd Owen, Directorate of Standards and Guidance, OSHA, Room N-3609, 
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210; telephone (202) 693-2222.

D. Federalism

    OSHA reviewed this direct final rule in accordance with the 
Executive Order on Federalism (Executive Order 13132, 64 FR 43255, 
August 10, 1999), which requires that Federal agencies, to the extent 
possible, refrain from limiting State policy options, consult with 
States prior to taking any actions that would restrict State policy 
options, and take such actions only when clear constitutional authority 
exists and the

[[Page 40446]]

problem is national in scope. Executive Order 13132 provides for 
preemption of State law only with the expressed consent of Congress. 
Any such preemption must be limited to the extent possible.
    Under Section 18 of the Occupational Safety and Health Act of 1970 
(``OSH Act''; U.S.C. 651 et seq.), Congress expressly provides that 
States may adopt, with Federal approval, a plan for the development and 
enforcement of occupational safety and health standards; States that 
obtain Federal approval for such a plan are referred to as ``State-Plan 
States.'' (29 U.S.C. 667.) Occupational safety and health standards 
developed by State-Plan States must be at least as effective in 
providing safe and healthful employment and places of employment as the 
Federal standards. Subject to these requirements, State-Plan States are 
free to develop and enforce their own requirements for occupational 
safety and health standards.
    While OSHA drafted this direct final rule to protect employees in 
every State, Section 18(c)(2) of the Act permits State-Plan States and 
Territories to develop and enforce their own standards for acetylene 
operations provided these requirements are at least as effective in 
providing safe and healthful employment and places of employment as the 
requirements specified in this direct final rule.
    In summary, this direct final rule complies with Executive Order 
13132. In States without OSHA-approved State Plans, any standard 
developed from this direct final rule would limit State policy options 
in the same manner as every standard promulgated by OSHA. In States 
with OSHA-approved State Plans, this rulemaking would not significantly 
limit State policy options.

E. State-Plan States

    When Federal OSHA promulgates a new standard or a more stringent 
amendment to an existing standard, the 26 States or U.S. Territories 
with their own OSHA-approved occupational safety and health plans 
(``State-Plan States'') must amend their standards to reflect the new 
standard or amendment, or show OSHA why such action is unnecessary 
(e.g., because an existing State standard covering this area is already 
``at least as effective'' as the new Federal standard or amendment. (29 
CFR 1953.5(a).) The State standard must be at least as effective as the 
final Federal rule, must be applicable to both the private and public 
(State and local government employees) sectors, and must be completed 
within six months of the publication date of the final Federal rule. 
When OSHA promulgates a new standard or amendment that does not impose 
additional or more stringent requirements than the existing standard, 
State-Plan States are not required to amend their standards, although 
OSHA may encourage them to do so.
    OSHA has determined that the State-Plan States must adopt 
provisions comparable to the provisions in this direct final rule 
within six months after the effective date of the rule. OSHA believes 
that the provisions of this direct final rule provide employers in 
State-Plan States and Territories with new and critical information and 
methods necessary to protect their employees from the hazards found in 
and around workplaces engaged in acetylene operations. The 26 States 
and territories with OSHA-approved State Plans are: Alaska, Arizona, 
California, Connecticut, Hawaii, Indiana, Iowa, Kentucky, Maryland, 
Michigan, Minnesota, Nevada, New Mexico, New Jersey, New York, North 
Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, 
Vermont, Virginia, Virgin Islands, Washington, and Wyoming. 
Connecticut, New Jersey, New York, and the Virgin Islands have OSHA-
approved State Plans that apply to State and local government employees 
only. Until a State-Plan State/Territory promulgates its own comparable 
provisions based on this direct final rule, Federal OSHA will provide 
the State/Territory with interim enforcement assistance, as 
appropriate.

F. Unfunded Mandates Reform Act of 1995

    OSHA reviewed this direct final rule in accordance with the 
Unfunded Mandates Reform Act of 1995 (``UMRA''; 2 U.S.C. 1501 et seq.) 
and Executive Order 12875 (56 FR 58093). As discussed above in Section 
IV.B (``Preliminary Economic Analysis and Regulatory Flexibility Act 
Certification'') of this notice, the Agency determined that this direct 
final rule will not impose additional costs on any private- or public-
sector entity. Accordingly, this direct final rule requires no 
additional expenditures by either public or private employers.
    As noted above under Section IV.E (``State-Plan States'') of this 
notice, the Agency's standards do not apply to State and local 
governments except in States that have elected voluntarily to adopt a 
State Plan approved by the Agency. Consequently, this direct final rule 
does not meet the definition of a ``Federal intergovernmental mandate'' 
(see Section 421(5) of the UMRA (2 U.S.C. 658(5))). Therefore, for the 
purposes of the UMRA, the Agency certifies that this direct final rule 
does not mandate that State, local, or tribal governments adopt new, 
unfunded regulatory obligations, or increase expenditures by the 
private sector of more than $100 million in any year.

G. Public Participation

    OSHA requests comments on all issues concerning this direct final 
rule. The Agency also welcomes comments on its determination that this 
direct final rule has no negative economic or other regulatory impacts 
on employers, and will increase employee protection. If OSHA receives 
no significant adverse comment, it will publish a Federal Register 
document confirming the effective date of this direct final rule and 
withdrawing the companion proposed rule. Such confirmation may include 
minor stylistic or technical corrections to the document. A full 
discussion of what constitutes a significant adverse comment is 
discussed above in Section II (``Direct Final Rulemaking'').
    The Agency will withdraw this direct final rule if it receives 
significant adverse comment on the amendments contained in it, and 
proceed with the companion proposed rule by addressing the comment(s) 
and publishing a new final rule. Should the Agency receive a 
significant adverse comment regarding some actions taken in the direct 
final rule, but not others, it may (1) finalize those actions that did 
not receive significant adverse comment, and (2) conduct further 
rulemaking under the companion proposed rule for the actions that 
received significant adverse comment. The comment period for this 
direct final rule runs concurrently with that of the companion proposed 
rule. Therefore, any comments received under this direct final rule 
will be treated as comments regarding the companion proposed rule. 
Similarly, OSHA will consider a significant adverse comment submitted 
to this direct final rule as a comment to the companion proposed rule; 
the Agency will consider such a comment in developing a subsequent 
final rule.
    Comments received will be posted without revision to http://
www.regulations.gov, including any personal information provided. 
Accordingly OSHA cautions commenters about submitting personal 
information such as Social Security numbers and birth dates.

List of Subjects in 29 CFR Part 1910

    Acetylene, General industry, Incorporation by reference, 
Occupational safety and health, Safety.

[[Page 40447]]

V. Authority and Signature

    Jordan Barab, Acting Assistant Secretary of Labor for Occupational 
Safety and Health, U.S. Department of Labor, 200 Constitution Avenue, 
NW., Washington, DC 20210, directed the preparation of this notice. The 
Agency is issuing this notice under Sections 4, 6, and 8 of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), 
Secretary of Labor's Order 5-2007 (72 FR 31159), and 29 CFR part 1911.

    Signed at Washington, DC on July 30, 2009.
Jordan Barab,
Acting Assistant Secretary of Labor for Occupational Safety and Health.

0
For the reasons stated above in the preamble, OSHA is amending 29 CFR 
part 1910 as follows:

PART 1910--[AMENDED]

Subpart A--[Amended]

0
1. Revise the authority citation for subpart A of part 1910 to read as 
follows:

     Authority:  Sections 4, 6, 8, Occupational Safety and Health 
Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order 
Numbers 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 
1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 
(67 FR 65008), and 5-2007 (72 FR 31159), as applicable.
    Sections 1910.7 and 1910.8 also issued under 29 CFR part 1911. 
Section 1910.7(f) also issued under 31 U.S.C. 9701, 29 U.S.C. 9a, 5 
U.S.C. 553; Public Law 106-113 (113 Stat. 1501A-222); and OMB 
Circular A-25 (dated July 8, 1993) (58 FR 38142, July 15, 1993).

0
2. Amend Sec.  1910.6 as follows:
0
A. Revise paragraph (k)(3).
0
B. Remove paragraphs (k)(4) and (k)(5), and redesignate paragraphs 
(k)(6) through (k)(15) as paragraphs (k)(4) through (k)(13).
0
C. Add new paragraphs (q)(34) and (q)(35).
    The additions and revisions read as follows:


Sec.  1910.6  Incorporation by reference.

* * * * *
    (k) * * *
    (3) CGA G-1-2003 Acetylene, IBR approved for Sec.  1910.102(a). 
Copies of CGA Pamphlet G-1-2003 are available for purchase from the: 
Compressed Gas Association, Inc., 4221 Walney Road, 5th Floor, 
Chantilly, VA 20151; telephone: 703-788-2700; fax: 703-961-1831; e-
mail: cga@cganet.com.
* * * * *
    (q) * * *
    (34) NFPA 51A (2001) Standard for Acetylene Cylinder Charging 
Plants, IBR approved for Sec.  1910.102(b) and (c). Copies of NFPA 51A-
2001 are available for purchase from the: National Fire Protection 
Association, 1 Batterymarch Park, Quincy, MA 02169-7471; telephone: 1-
800-344-35557; e-mail: custserv@nfpa.org.
    (35) NFPA 51A (2006) Standard for Acetylene Cylinder Charging 
Plants, IBR approved for Sec.  1910.102(b) and (c). Copies of NFPA 51A-
2006 are available for purchase from the: National Fire Protection 
Association, 1 Batterymarch Park, Quincy, MA 02169-7471; telephone: 1-
800-344-35557; e-mail: custserv@nfpa.org.
* * * * *

Subpart H--[Amended]

0
3. Revise the authority citation for subpart H of part 1910 to read as 
follows:

    Authority:  Sections 4, 6, and 8 of the Occupational Safety and 
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's 
Orders Nos. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 
35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 
5-2002 (67 FR 65008), or 5-2007 (72 FR 31159), as applicable; and 29 
CFR part 11.
    Sections 1910.103, 1910.106 through 1910.111, and 1910.119, 
1910.120, and 1910.122 through 1910.126 also issued under 29 CFR 
part 1911.
    Section 1910.119 also issued under Section 304, Clean Air Act 
Amendments of 1990 (Pub. L. 101-549), reprinted at 29 U.S.C. 655 
Note.
    Section 1910.120 also issued under Section 126, Superfund 
Amendments and Reauthorization Act of 1986 as amended (29 U.S.C. 655 
Note), and 5 U.S.C. 553.

0
4. Revise Sec.  1910.102 to read as follows:


Sec.  1910.102  Acetylene.

    (a) Cylinders. Employers must ensure that the in-plant transfer, 
handling, storage, and use of acetylene in cylinders comply with the 
provisions of CGA Pamphlet G-1-2003 (``Acetylene'') (Compressed Gas 
Association, Inc., 11th ed., 2003).
    (b) Piped systems. (1) Employers must comply with Chapter 9 
(``Acetylene Piping'') of NFPA 51A-2006 (``Standard for Acetylene 
Charging Plants'') (National Fire Protection Association, 2006 ed., 
2006).
    (2) When employers can demonstrate that the facilities, equipment, 
structures, or installations used to generate acetylene or to charge 
(fill) acetylene cylinders were installed prior to February 16, 2006, 
these employers may comply with the provisions of Chapter 7 
(``Acetylene Piping'') of NFPA 51A-2001 (``Standard for Acetylene 
Charging Plants'') (National Fire Protection Association, 2001 ed., 
2001).
    (3) The provisions of Sec.  1910.102(b)(2) also apply when the 
facilities, equipment, structures, or installations used to generate 
acetylene or to charge (fill) acetylene cylinders were approved for 
construction or installation prior to February 16, 2006, but 
constructed and installed on or after that date.
    (4) For additional information on acetylene piping systems, see CGA 
G-1.2-2006, Part 3 (``Acetylene piping'') (Compressed Gas Association, 
Inc., 3rd ed., 2006).
    (c) Generators and filling cylinders. (1) Employers must ensure 
that facilities, equipment, structures, or installations used to 
generate acetylene or to charge (fill) acetylene cylinders comply with 
the provisions of NFPA 51A-2006 (``Standard for Acetylene Charging 
Plants'') (National Fire Protection Association, 2006 ed., 2006).
    (2) When employers can demonstrate that the facilities, equipment, 
structures, or installations used to generate acetylene or to charge 
(fill) of acetylene cylinders were constructed or installed prior to 
February 16, 2006, these employers may comply with the provisions of 
NFPA 51A-2001 (``Standard for Acetylene Charging Plants'') (National 
Fire Protection Association, 2001 ed., 2001).
    (3) The provisions of Sec.  1910.102(c)(2) also apply when the 
facilities, equipment, structures, or installations were approved for 
construction or installation prior to February 16, 2006, but 
constructed and installed on or after that date.

[FR Doc. E9-18644 Filed 8-10-09; 8:45 am]

BILLING CODE 4510-26-P