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Secretary of Labor Hilda L. Solis
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OSHA Final Rules

Revising the Notification Requirements in the Exposure Determination Provisions of the Hexavalent Chromium Standards   [3/17/2010]
[PDF]
FR Doc 2010-5734
[Federal Register: March 17, 2010 (Volume 75, Number 51)]
[Rules and Regulations]               
[Page 12681-12686]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17mr10-15]                         


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1910, 1915, and 1926

[Docket No. OSHA-H054a-2006-0064]
RIN 1218-AC43

 
Revising the Notification Requirements in the Exposure 
Determination Provisions of the Hexavalent Chromium Standards

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

ACTION: Direct final rule.

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SUMMARY: On February 28, 2006, OSHA published a final rule for 
Occupational Exposure to Hexavalent Chromium (Cr(VI). Public Citizen 
Health Research Group (Public Citizen) and other parties petitioned for 
review of the standard in the United States Court of Appeals for the 
Third Circuit. The court denied the petitions for review on all but one 
issue. The Third Circuit remanded the employee notification 
requirements in the standard's exposure determination provisions for 
further consideration. More specifically, the court directed the Agency 
to either provide an explanation for its decision to limit employee 
notification requirements to circumstances in which Cr(VI) exposures 
exceed the permissible exposure limit (PEL) or take other appropriate 
action with respect to that paragraph of the standard. After reviewing 
the rulemaking record on this issue, and reconsidering the provision in 
question, OSHA has decided to revise the notification requirements, by 
means of this direct final rule, to require employers to notify 
employees of the results of all exposure determinations.

DATES: This direct final rule will become effective on June 15, 2010 
unless significant adverse comment is submitted (transmitted, 
postmarked, or delivered) by April 16, 2010. Comments to this direct 
final rule, hearing requests, and other information must be submitted 
(transmitted, postmarked, or delivered) by April 16, 2010. All 
submissions must bear a postmark or provide other evidence of the 
submission date.

ADDRESSES: You may submit comments, hearing requests, and other 
materials, identified by Docket No. OSHA-H054a-2006-0064, by any of the 
following methods:
    Electronically: You may submit comments and attachments 
electronically at 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). You can fax these documents to the OSHA Docket Office at 
(202) 693-1648; hard copies of these documents are not required. 
Instead of transmitting facsimile copies of attachments that supplement 
these documents (e.g., studies, journal articles), commenters must 
submit these attachments 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, the date, and the Docket No. (OSHA-H054a-
2006-0064) so that the Agency can attach them to the appropriate 
document.
    Regular mail, express delivery, hand (courier) delivery, and 
messenger service: Submit comments and any additional material to the 
OSHA Docket Office, Docket No. OSHA-H054a-2006-0064 or RIN No. 1218-
AC43, 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 procedures may delay OSHA's receipt of comments and other 
written materials submitted 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. Deliveries (hand, express mail, messenger service) are 
accepted during the Docket Office's normal business hours, 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-H054a-2006-0064). 
Comments and other material, including any personal information, will 
be 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.
    Docket: To read or download comments or other material in the 
docket, go to http://www.regulations.gov or to the OSHA Docket Office 
at the address above. Documents in the docket are listed in the http://
www.regulations.gov index; 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: For general information and press 
inquiries contact Ms. Jennifer Ashley, Director, OSHA Office of 
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Washington, DC 20210; telephone: (202) 693-1999. For 
technical inquiries, contact Maureen Ruskin, Office of Chemical 
Hazards-Metals, Directorate of Standards and Guidance, Room N-3718, 
OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Washington, DC 20210; telephone: (202) 693-1950; fax: (202) 693-1678. 
Copies of this Federal Register notice are available from the OSHA 
Office of Publications, Room N-3101, U.S. Department of Labor, 200 
Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-
1888. Electronic copies of this Federal Register notice, as well as 
news releases and other relevant documents, are available at OSHA's Web 
page at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Request for Comment
II. Direct Final Rulemaking
III. Discussion of Changes
IV. Legal Considerations
V. Final Economic Analysis and Regulatory Flexibility Act 
Certification
VI. OMB Review Under the Paperwork Reduction Act of 1995
VII. Federalism
VIII. State Plan States
IX. Unfunded Mandates Reform Act
X. List of Subjects for 29 CFR Parts 1910, 1915, and 1926 Authority 
and Signature

I. Request for Comment

    OSHA requests comments on all issues related to this action 
including economic or other regulatory impacts of this action on the 
regulated community. If OSHA receives no significant adverse comment, 
OSHA will publish a Federal Register document confirming the effective 
date of this direct final rule and withdrawing the companion proposed 
rule published in the Proposed Rules section of today's Federal 
Register. Such confirmation may include minor stylistic or technical 
changes to the document. For the

[[Page 12682]]

purpose of judicial review, OSHA views the date of confirmation of the 
effective date of this direct final rule as the date of promulgation.

II. Direct Final Rulemaking

    In direct final rulemaking, an agency publishes a direct final rule 
in the Federal Register with a statement that the rule will go into 
effect unless significant adverse comment is received within a 
specified period of time. An identical proposed rule is often published 
at the same time. If a significant adverse comment is not submitted in 
response to the direct final rule, the rule goes into effect. If a 
significant adverse comment is received, the agency withdraws the 
direct final rule and treats such comment as a response to the proposed 
rule. Direct final rulemaking is typically used where an agency 
anticipates that a rule will not be controversial. Examples include 
minor substantive changes to regulations, direct incorporations of 
mandates from new legislation, and in this case, minor changes to 
regulations resulting from a judicial remand.
    For purposes of this direct final rule, a significant adverse 
comment is one that explains why the amendments being made to OSHA's 
standards would be inappropriate. In determining whether a comment 
necessitates withdrawal of the direct final rule, the Agency 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 an additional amendment to be a 
significant adverse comment unless the comment states why the direct 
final rule would be ineffective without the addition. If timely 
significant adverse comment is received, OSHA will publish a notice of 
significant adverse comment in the Federal Register withdrawing this 
direct final rule no later than May 17, 2010.
    OSHA is publishing a companion proposed rule along with this direct 
final rule. The comment period for the proposed rule runs concurrently 
with that of the direct final rule. Comments received on the companion 
proposed rule will also be treated as comments regarding the direct 
final rule. Likewise, significant adverse comment submitted to the 
direct final rule will also be considered as comment to the companion 
proposed rule.
    If OSHA receives a significant adverse comment on this direct final 
rule, the Agency will publish a timely withdrawal of this direct final 
rule and proceed with the companion proposed rule that was published in 
the Proposed Rule's section of today's Federal Register. In the event 
OSHA withdraws the direct final rule because of significant adverse 
comment, the Agency will consider all comments received when it 
continues with the proposed rule. OSHA will then decide whether to 
publish a new final rule.
    OSHA determined that the subject of this rulemaking is suitable for 
direct final rulemaking. This amendment to the standard does not 
compromise the safety or health of employees. Indeed, OSHA anticipates 
that employee protection will be enhanced by the amended standard, 
which will require employers to notify affected employees of all 
exposure determination results. This amendment to the standard will not 
alter any other substantive requirements of the exposure determination 
provisions, i.e., the amendment does not change any of the requirements 
for when or how employers must determine their employees' Cr(VI) 
exposures. The amendment made herein simply expands the circumstances 
in which employers must notify affected employees, either through 
posting or direct written notice, of the results of required exposure 
determinations. The burden on the regulated community as a result of 
this change will not be significant. For these reasons, OSHA does not 
expect objections from the public.

III. Discussion of Changes

    Paragraph (d) of the chromium (VI) standard (29 CFR 1910.1026, 29 
CFR 1915.1026, 29 CFR 1926.1126) (71 FR 10100) is titled ``Exposure 
Determination'' and requires employers to determine the 8-hour time-
weighted-average exposure for each employee exposed to Cr(VI). This can 
be done through scheduled air monitoring (paragraph (d)(2)) or on the 
basis of any combination of air monitoring data, historical monitoring 
data, and/or objective data (paragraph (d)(3)). As originally 
promulgated, paragraph (d)(4) required the employer to notify affected 
employees of any exposure determinations indicating exposures in excess 
of the PEL. The employer could satisfy this requirement either by 
posting the exposure determination results in an appropriate location 
accessible to all affected employees or by notifying each affected 
employee in writing of the results of the exposure determination. Under 
the general industry standard, notice has to be provided within 15 work 
days, and in construction and maritime employers have 5 work days to 
provide the required notice.
    The requirement to notify employees of exposures above the exposure 
limit was consistent with Section 8(c)(3) of the Occupational Safety 
and Health Act of 1970 (OSH Act), which requires employers ``to 
promptly notify any employee who has been or is being exposed to toxic 
materials or harmful physical agents * * * at levels which exceed those 
prescribed by an applicable occupational safety and health standard,'' 
29 U.S.C. 657(c)(3). The promulgated notice requirement was more 
limited than the proposed chromium standard (69 FR 59306, Oct. 4, 
2004), however. The proposed standard would have required employers to 
notify affected employees of all exposure determinations, irrespective 
of the results. The broader, proposed notice requirement mirrored 
similar provisions in OSHA's other substance-specific health standards 
including, but not limited to, lead (29 CFR 1910.1025(d)(8)(i)); 
arsenic (29 CFR 1910.1018(e)(5)(i)); methylenedianiline (29 CFR 
1910.1050(e)(7)(i)); butadiene (29 CFR 1910.1051(d)(7)(i)); and 
methylene chloride (29 CFR 1910.1052(d)(5)(i)). All of those other 
standards require employers to notify employees of all exposure 
monitoring results.
    Public Citizen and other parties petitioned for review of the final 
chromium standard. (See Public Citizen Health Research Group v. Dept. 
of Labor, 557 F.3d 165 (3d Cir. 2009)). Part of Public Citizen's 
petition involved a challenge to paragraph (d)(4). Public Citizen 
argued that OSHA's decision to depart from the proposed rule and limit 
the employee notification requirement to exposures above the PEL was 
arbitrary and unexplained. Although OSHA defended the final 
notification provision on many grounds, including that it was 
consistent with Section 8(c)(3) of the OSH Act, the Third Circuit 
granted Public Citizen's petition for review with regard to the 
employee notification requirement (while denying all other challenges 
to the standard). See Public Citizen, 557 F.3d at 185-86. The court 
found that ``OSHA failed to provide a statement of reasons for 
departing from the proposed standard and past practice in other 
standards,'' id. at 186, and remanded paragraph (d)(4) to the agency 
``for further consideration and explanation.'' Id. at 191. The court 
``expect[ed] . OSHA [to] * * * act expeditiously in either providing an 
explanation for its chosen notification requirements or taking such 
further action as may be appropriate.'' Id. at 192.

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    In response to the Third Circuit's decision, OSHA re-examined the 
record. The Agency did not find any comments or testimony in the record 
on the narrow issue of whether employees should be notified of all 
exposure determinations. OSHA also confirmed that all of its other 
substance-specific health standards have broader notification 
requirements than the 2006 Cr(VI) standard, i.e., they require 
employers to notify employees of exposures even below the relevant 
exposure limits. See, e.g., lead (29 CFR 1910.1025(d)(8)(i)); arsenic 
(29 CFR 1910.1018(e)(5)(i)); methylenedianiline (29 CFR 
1910.1050(e)(7)(i)); butadiene (29 CFR 1910.1051(d)(7)(i)); and 
methylene chloride (29 CFR 1910.1052(d)(5)(i)).
    Upon reconsidering this issue, OSHA has decided to take action, by 
means of this notice, to amend the notification requirements in the 
Cr(VI) standards. Consistent with the language in the proposed chromium 
standard, as well as past practice in OSHA's other substance-specific 
health standards, the amended provision requires employers to notify 
affected employees of all exposure determinations, whether above or 
below the PEL. OSHA is not changing any other requirements in the 
exposure determination or notification provisions. For example, the 
number of work days employers have to provide notice to employees will 
remain unchanged.
    In the preamble to the final Cr(VI) standard, OSHA concluded that 
employees were exposed to significant risk at the previous PEL for 
Cr(VI) of 52 [mu]g/m \3\ and that lowering the PEL to 5 [mu]g/m \3\ 
substantially reduced that risk. 71 FR at 10223-25. Feasibility 
considerations led OSHA to set the PEL at 5 [mu]g/m \3\, even though 
the Agency recognized that significant risk remained at lower levels. 
See id. at 10333-39. For example, OSHA still expected 2.1-9.1 excess 
lung cancer deaths per 1000 workers with a lifetime of regular exposure 
to Cr(VI) at 1 [mu]g/m \3\. See id. at 10224 (Table VII-1). OSHA 
explained in the preamble to the final rule that the ancillary 
provisions of the standard, e.g., monitoring and medical surveillance 
requirements, were expected to reduce the residual risk remaining at 
the final PEL. Id. at 10334. OSHA believes that this amendment to the 
notification requirement will, in addition to the other ancillary 
requirements, further reduce the risk of health impairment associated 
with Cr(VI) exposures below 5 [mu]g/m\3\.
    Notifying employees of their exposures arms them with knowledge 
that can permit and encourage them to be more proactive in working 
safely to control their own exposures through better work practices and 
by more actively participating in safety programs. As OSHA noted with 
respect to its Hazard Communication Standard: ``Workers provided the 
necessary hazard information will more fully participate in, and 
support, the protective measures instituted in their workplaces.'' 59 
FR 6126, 6127 (Feb. 9, 1994). Exposures to Cr(VI) below the PEL may 
still be hazardous, and making employees aware of such exposures may 
encourage them to take whatever steps they can, as individuals, to 
reduce their exposures as much as possible.
    This may be of particular significance for welders, who make up 
almost half of the employees affected by the chromium standard. See 71 
Fr at 10257-59 (Table VIII-3). Welders have a unique ability to control 
their own Cr(VI) exposures by making simple changes in their work 
practices, e.g., changes in technique, posture or in the proper 
positioning of portable local exhaust ventilation (LEV). See, e.g., 
Shaw Environmental, Inc., Cost and Economic Impact Analysis of a Final 
OSHA Standard for Hexavalent Chromium, Chapter 2-Welding, Docket No. 
OSHA-H054a-2006-0064, Document No. 2541, page 2-156 (``Another 
environmental variable is the variation in welding technique and 
posture used by different welders. Small differences in the welder's 
body position in relation to the welding task, the welder's body 
position in relation to the weld, and any LEV may create large 
differences in an individual's fume exposure. Welder information and 
training should reduce the occurrence of this poor work practice.'')

IV. Legal Considerations

    The purpose of the OSH Act 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), 658. A safety or health standard is a standard that 
``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 when a significant risk of material harm exists in the 
workplace and the standard would substantially reduce or eliminate that 
workplace risk. See Industrial Union Department, AFL-CIO v. American 
Petroleum Inst., 448 U.S. 607 (1980) (plurality opinion).
    This direct final rule will not diminish the employee protections 
put into place by the standard being amended. In fact, the amendment is 
expected to enhance the health benefits of the Cr(VI) standard by 
providing employees with more information about their exposure levels. 
Because OSHA previously determined that the Cr(VI) standard 
substantially reduces a significant risk, 71 FR at 10223-25, it is 
unnecessary for the Agency to make additional findings on risk for 
purposes of the minor amendment being made to the exposure 
determination provisions. See, e.g., Public Citizen Health Research 
Group v. Tyson, 796 F.2d 1479, 1502 n.16 (DC Cir. 1986) (rejecting the 
argument that OSHA must ``find that each and every aspect of its 
standard eliminates a significant risk.'')

V. Final Economic Analysis and Regulatory Flexibility Act Certification

    This direct final rule is not economically significant within the 
context of Executive Order (``E.O.'') 12866 (58 FR 51735 (Oct. 4, 
1993)), nor is it a ``major rule'' under Section 804 of the Small 
Business Regulatory Enforcement Fairness Act of 1996 (``SBREFA''; 5 
U.S.C. 804).
    As described previously, this action simply amends the notification 
requirement in the Cr(VI) rule. As originally promulgated, the standard 
required employers to notify employees of overexposures. This amendment 
requires employers to notify employees of all exposure determinations, 
irrespective of exposure levels.
    In OSHA's Final Economic and Regulatory Flexibility Analysis (FEA) 
for the final standard (Docket No. OSHA-H054a-2006-0064, Document No. 
2524), the Agency carried forward the methodology that it used to 
derive cost estimates for the broader notification requirement in the 
proposed Cr(VI) standard. That cost methodology is described in detail 
in the final contractor report supporting OSHA's FEA. See (Docket No. 
OSHA-H054a-2006-0064, Document No. 2577, pages III-5--III-16). There, 
OSHA's contractor, Shaw Environmental, Inc. (Shaw), conservatively 
assigned costs assuming that employers would be notifying all affected 
employees of all exposure determinations, irrespective of exposure 
level. OSHA included those notification costs in the costs for Exposure 
Monitoring that were presented in tables in the executive summary and 
cost chapters of the FEA. See, for example, Docket No. OSHA-H054a-2006-
0064, Document Nos. 2524

[[Page 12684]]

(page ES-48, Table ES-4) and 2528 (page IV-11, Table IV-4).
    Among the notification costs included in the FEA are information 
collection expenditures subject to the Paperwork Reduction Act of 1995 
(PRA-95). OSHA's analysis of the paperwork burden of the amended 
notification provision is presented in the next section and details the 
incremental expense, in terms of time and labor costs, that employers 
will likely incur as a result of this revision to the standard. As 
described in that section, notification costs will increase by $1.5 
million and therefore will total approximately $2.1 million, up from 
$0.5 million as reported in the 2006 Paperwork statement accompanying 
the final rule.
    Because OSHA assigned costs for employers notifying workers whose 
exposure levels were below the PEL, and who therefore were not actually 
subject to the notification requirement in the final standard, that 
methodology originally had the effect of overestimating costs and 
impacts relative to the actual burden facing employers. With the 
amendment to the notification requirement, however, the FEA's cost 
estimates will more accurately represent the costs employers are 
expected to incur. Because in the original FEA those costs were judged 
to be economically feasible, OSHA has concluded that this revision, 
which imposes no additional burden from the standpoint of the economic 
analysis, is also feasible.
    OSHA is not changing any of the monitoring or exposure 
characterization requirements in the final standard. The amended 
notification provision, when compared to the standard as originally 
promulgated, will simply require employers to post more names or send 
more individual notices after exposure determinations are made. In 
OSHA's view, these costs are not significant and, as indicated above, 
are economically feasible. Therefore, OSHA certifies that this action 
will not have a significant impact on a substantial number of small 
entities and the Agency will not have to prepare a regulatory 
flexibility analysis for this rulemaking under SBREFA (5 U.S.C. 601 et 
seq.).

VI. OMB Review Under the Paperwork Reduction Act of 1995

    The direct final rule amends a notification requirement that is 
subject to review by the Office of Management and Budget (OMB) under 
the Paperwork Reduction Act of 1995 (PRA-95), 44 U.S.C. 3501 et seq., 
and OMB's regulations at 5 CFR part 1320. The information collection 
requirements (``paperwork'') currently contained in the Chromium VI 
(Cr(VI)) standard are approved by OMB (Information Collection Request 
(ICR), Chromium (VI) Standards for General Industry (29 CFR 1910.1026), 
Shipyard Employment (29 CFR 1915.1026), and Construction (29 CFR 
1926.1126)), under OMB Control Number 1218-0252. The Department notes 
that a Federal agency cannot conduct or sponsor a collection of 
information unless it is approved by OMB under the PRA and displays a 
currently valid OMB control number, and the public is not required to 
respond to a collection of information requirement unless it displays a 
currently valid OMB control number. Also, notwithstanding any other 
provisions of law, no person shall be subject to penalty for failing to 
comply with a collection of information requirement if the requirement 
does not display a currently valid OMB control number.
    On June 22, 2009, OSHA published a preclearance Federal Register 
Notice, Docket No. OSHA-2009-0015, as specified in PRA-95 (44 U.S.C. 
3506(c)(2)(A)), allowing the public 60 days to comment on a proposal to 
extend OMB's approval of the information collection requirements in the 
Cr(VI) standard (74 FR 29517). This Notice also served to inform the 
public that OSHA was considering revising the notification requirements 
in the exposure determination provision in response to the court-
ordered remand. At that point OSHA estimated the new burden hours and 
costs that would result from this potential amendment to the standard, 
and the public had sixty days to comment on those estimates in 
accordance with the PRA, 44 U.S.C. 3506(c)(2). OSHA estimated that a 
requirement to notify employees of all exposure determination results 
would result in an increase of 62,575 burden hours and would increase 
employer cost, in annualized terms, by $1,526,731.
    The pre-clearance Federal Register comment period closed on August 
22, 2009. OSHA did not receive public comments on that notice. On 
October 30, 2009, DOL published a Federal Register notice announcing 
that the Cr(VI) ICR had been submitted to OMB (74 FR 56216) for review 
and approval, and that interested parties had until November 30, 2009, 
to submit comments to OMB on that submission. No comments were received 
in response to that Notice either.
    Now that OSHA is amending the Cr(VI) standard via this direct final 
rule, the Agency will provide an additional thirty days for the public 
to comment on the estimated paperwork implications of the revised 
notification requirements.
    Inquiries: You may obtain an electronic copy of the complete Cr(VI) 
ICR at http://www.reginfo.gov/public/do/PRAMain, scroll under 
``Inventory of Approved Collections, Collections Under Review, Recently 
Approved/Expired'' to ``Department of Labor (DOL)'' to view all of the 
DOL's ICRs, including those ICRs submitted for rulemakings. The 
Department's ICRs are listed by OMB control number. The Cr(VI) OMB 
Control Number is 1218-0252. To make inquiries, or to request other 
information, contact 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.
    Submitting comments: Members of the public who wish to comment on 
the estimated burden hours and costs attributable to the amendment to 
the notification provision, as described in the Cr(VI) ICR, may send 
their written comments to the Office of Information and Regulatory 
Affairs, Attn: OSHA Desk Officer (RIN 1218-AC43), Office of Management 
and Budget, Room 10235, 725 17th Street, NW., Washington, DC 20503. The 
Agency encourages commenters to also submit their comments on these 
paperwork requirements to the rulemaking docket (Docket No. OSHA-H054a-
2006-0064). For instructions on submitting these comments to the 
rulemaking docket, see the sections of this Federal Register notice 
titled DATES and ADDRESSES.

VII. 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 problem is national in scope. Executive Order 13132 
provides for preemption of State law only with the expressed consent of 
Congress. Any such preemption is to be limited to the extent possible.
    Under Section 18 of the Occupational Safety and Health Act of 1970 
(``OSH Act''; 29 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

[[Page 12685]]

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 under State law their 
own requirements for safety and health standards.
    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 does not significantly limit 
State policy options.

VIII. State Plan States

    When Federal OSHA promulgates a new standard or more stringent 
amendment to an existing standard, the 27 States and 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 ``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 promulgation date of the final Federal rule. 
When OSHA promulgates a new standard or amendment that does not impose 
additional or more stringent requirements than an existing standard, 
State Plan States are not required to amend their standards, although 
the Agency may encourage them to do so. The 27 States and U.S. 
Territories with OSHA approved occupational safety and health plans 
are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, 
Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, 
Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, 
Virginia, Washington, and Wyoming; Connecticut, Illinois, New Jersey, 
New York, and the Virgin Islands have OSHA approved State Plans that 
apply to State and local government employees only.
    With regard to this direct final rule, the amended requirement 
would result in a somewhat more stringent requirement in regulations 
for Cr(VI) exposure. Therefore, States and Territories with approved 
State Plans must adopt comparable amendments to their standards for 
hexavalent chromium within six months of the promulgation date of this 
amendment unless they demonstrate that such a change is not necessary 
because their existing standards are already the same as or at least as 
effective as the amended Cr(VI) standard.

IX. Unfunded Mandates Reform Act

    OSHA reviewed this direct final rule according to the Unfunded 
Mandates Reform Act of 1995 (``UMRA''; 2 U.S.C. 1501 et seq.) and 
Executive Order 12875 (58 FR 58093). As discussed above in Section V 
(``Economic Analysis and Regulatory Flexibility Certification'') of 
this preamble, the Agency determined that this direct final rule does 
not impose significant additional costs on any private-or public-sector 
entity. Accordingly, this direct final rule does not require 
significant additional expenditures to either public or private 
employers.
    As noted above under Section VIII (``State-Plan States''), 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.

List of Subjects

29 CFR Part 1910

    Exposure determination, General industry, Health, Hexavalent 
chromium Cr(VI)), Notification of determination results to employees, 
Occupational safety and health.

29 CFR Part 1915

    Exposure determination, Health, Hexavalent chromium (Cr(VI)), 
Notification of determination results to employees, Occupational safety 
and health, Shipyard employment.

29 CFR Part 1926

    Construction, Exposure determination, Health, Hexavalent chromium 
(Cr(VI)), Notification of determination results to employees, 
Occupational safety and health.

Authority and Signature

    David Michaels, PhD MPH, 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 direct final rule. The Agency is issuing this rule 
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 March 11, 2010.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

Amendments to Standards

0
For the reasons stated in the preamble, OSHA is amending 29 CFR parts 
1910, 1915, and 1926 to read as follows:

PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS [AMENDED]

Subpart A--General

0
1. The authority citation for subpart A of part 1910 is revised to read 
as follows:

    Authority: Sections 4, 6, and 8 of the Occupational Safety and 
Health Act of 1970 (29 U.S.C. 653, 655, and 657); Secretary of 
Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 
FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 
50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160), as 
applicable.
    Sections 1910.7, 1910.8, and 1910.9 also issued under 29 CFR 
Part 1911. Section 1910.7(f) also issued under 31 U.S.C. 9701, 29 
U.S.C. 9a, 5 U.S.C. 553; Pub. L. 106-113 (113 Stat. 1501A-222); and 
OMB Circular A-25 (dated July 8, 1993) (58 FR 38142, July 15, 1993).

Subpart Z--Toxic and Hazardous Substances

0
2. The authority citation for subpart Z of Part 1910 is revised to read 
as follows:

    Authority: Secs. 4, 6, 8 of the Occupational Safety and Health 
Act of 1970 (29 U.S.C. 653, 655, and 657); Secretary of Labor's 
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 
35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 
5-2002 (67 FR 65008), or 5-2007 (72 FR 31160), as applicable; and 29 
CFR part 1911.
    All of subpart Z issued under section 6(b) of the Occupational 
Safety and Health Act of 1970, except those substances that have 
exposure limits listed in Tables Z-1, Z-2, and Z-3 of 29 CFR 
1910.1000. The latter were issued under section 6(a) (29 U.S.C. 
655(a)).
    Section 1910.1000, Tables Z-1, Z-2, and Z-3 also issued under 5 
U.S.C. 553, but not

[[Page 12686]]

under 29 CFR part 1911 except for the arsenic (organic compounds), 
benzene, cotton dust, and chromium (VI) listings.
    Section 1910.1001 also issued under section 107 of the Contract 
Work Hours and Safety Standards Act (40 U.S.C. 3704) and 5 U.S.C. 
553.
    Section 1910.1002 also issued under 5 U.S.C. 553, but not under 
29 U.S.C. 655 or 29 CFR part 1911.
    Sections 1910.1018, 1910.1029, and 1910.1200 also issued under 
29 U.S.C. 653.
    Section 1910.1030 also issued under Public Law 106-430, 114 
Stat. 1901.

0
3. Section 1910.1026 is amended by revising paragraph (d)(4)(i), to 
read as follows:


Sec.  1910.1026  Chromium (VI)

* * * * *
    (d) * * *
    (4) * * *
    (i) Within 15 work days after making an exposure determination in 
accordance with paragraph (d)(2) or paragraph (d)(3) of this section, 
the employer shall individually notify each affected employee in 
writing of the results of that determination or post the results in an 
appropriate location accessible to all affected employees.
* * * * *

PART 1915--OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR SHIPYARD 
EMPLOYMENT [AMENDED]

Subpart A--General Provisions

0
4. The authority citation for part 1915 will continue to read as 
follows:

    Authority: Section 41, Longshore and Harbor Workers' 
Compensation Act (33 U.S.C. 941); Sections 4, 6, and 8 of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-
2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160) as 
applicable; 29 CFR Part 1911.

Subpart Z--Toxic and Hazardous Substances

0
5. Section 1915.1026, is amended by revising paragraph (d)(4)(i), to 
read as follows:


Sec.  1915.1026  Chromium (VI)

* * * * *
    (d) * * *
    (4) * * *
    (i) Within 5 work days after making an exposure determination in 
accordance with paragraph (d)(2) or paragraph (d)(3) of this section, 
the employer shall individually notify each affected employee in 
writing of the results of that determination or post the results in an 
appropriate location accessible to all affected employees.
* * * * *

PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION [AMENDED]

Subpart A--General

0
6. The authority citation for subpart A of part 1926 is revised to read 
as follows:

    Authority: Section 3704 of the Contract Work Hours and Safety 
Standards Act (40 U.S.C. 3701 et seq.); sections 4, 6, and 8 of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, and 
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-
2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160) as 
applicable; and 29 CFR part 1911.

Subpart Z--Toxic and Hazardous Substances

0
7. The authority citation for subpart Z of part 1926 is revised to read 
as follows:

    Authority: Section 3704 of the Contract Work Hours and Safety 
Standards Act (40 U.S.C. 3701 et seq.); 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 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 (62 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160) as 
applicable; and 29 CFR part 11.

Section 1926.1102 of 29 CFR Not Issued Under 29 U.S.C. 655 or 29 CFR 
Part 1911; Also Issued Under 5 U.S.C. 553

0
8. Section1926.1126, is amended by revising paragraph (d)(4)(i), to 
read as follows:


Sec.  1926.1126  Chromium (VI)

* * * * *
    (d) * * *
    (4) * * *
    (i) Within 5 work days after making an exposure determination in 
accordance with paragraph (d)(2) or paragraph (d)(3) of this section, 
the employer shall individually notify each affected employee in 
writing of the results of that determination or post the results in an 
appropriate location accessible to all affected employees.
* * * * *
[FR Doc. 2010-5734 Filed 3-16-10; 8:45 am]
BILLING CODE 4510-26-P