
[Federal Register: August 11, 2009 (Volume 74, Number 153)]
[Proposed Rules]               
[Page 40449-40455]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au09-39]                         


[[Page 40449]]

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Part V





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; Proposed 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: Notice of proposed rulemaking.

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SUMMARY: In this Notice of Proposed Rulemaking (NPRM), the Agency is 
proposing to revise its Acetylene Standard for general industry by 
updating references to standards published by standards developing 
organizations (i.e., ``SDO standards''). OSHA also is publishing a 
direct final rule in today's Federal Register taking these same 
actions. This NPRM is the companion document to the direct final rule. 
This rulemaking is a continuation of OSHA's ongoing effort to update 
references to SDO standards used throughout its rules.

DATES: Submit comments to this NPRM (including comments to the 
information-collection (paperwork) determination described under the 
section titled Procedural Determinations), hearing requests, and other 
information 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.)

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 NPRM. It also 
welcomes comments on its findings that this NPRM would have no negative 
economic, paperwork, or other regulatory impacts on the regulated 
community. This NPRM is the companion document to a direct final rule 
also published in today's Federal Register. If OSHA receives no 
significant adverse comment on the companion direct final rule, it will 
publish a Federal Register document confirming the effective date of 
the direct final rule and withdrawing this NPRM. 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 the direct 
final rule and proceed with this proposal, which addresses the same 
revisions to the Acetylene Standard.
     Docket. The electronic docket for this proposal 
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 Web page at http://
www.osha.gov.

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. Preliminary 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

[[Page 40451]]

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 standard 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 (``DFR''), an agency publishes a DFR 
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 DFR goes into effect. If, however, the agency receives 
significant adverse comment, the agency withdraws the DFR and treats 
the comments as submissions on the proposed rule.
    OSHA uses DFRs 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 DFRs 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 DFR, 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 DFR, 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 DFR would be 
ineffective without the revisions. If OSHA receives a timely 
significant adverse comment, the Agency will publish a Federal Register 
notice withdrawing the DFR no later than 90 days after the publication 
date of the notice.
    OSHA believes that the proposed revisions to the Acetylene Standard 
would not compromise the safety of employees, and instead would enhance 
employee protection. For example, the updated Acetylene Standard would 
include mandatory requirements for acetylene piping systems, have 
special requirements for high-pressure piping systems, and prohibit 
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. 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'')) will clarify employers' compliance 
obligations and prevent inappropriate enforcement action, while also 
increasing employee protection.
    The Agency preliminarily determined that updating and replacing the 
SDO standards in the Acetylene Standard is appropriate for direct final 
rulemaking. As described below, the proposed 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 NPRM would update 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, OSHA is 
proposing in this rulemaking to adopt the requirements specified in the 
most recent versions of the SDO standards. The following discussion 
provides a summary of the revisions OSHA is proposing for paragraphs 
(a), (b), and (c) of the Acetylene Standard.

A. Sec.  1910.102(a)--Cylinders.

    For paragraph (a) of Sec.  1910.102, the NPRM proposes to replace 
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 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

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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 
preliminarily determines that incorporating CGA G-1-2003 into paragraph 
(a) of Sec.  1910.102 would 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. Sec.  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 NPRM proposes 
to revise 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 would depend 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 the 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 likely 
would 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 it is proposing to Sec.  
1910.102(b) represent the usual and customary practice of the industry 
today. Therefore, OSHA preliminarily concludes that making the proposed 
revisions would not impose an additional compliance burden on 
employers. Accordingly, OSHA requests public comment on the extent to 
which the revisions proposed for Sec.  1910.102(b) represent current 
industry practice.

C. Sec.  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 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 proposing in this NPRM 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, would have 
to 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 proposed revisions to Sec.  1910.102(c) would 
reduce regulatory confusion and ensure up-to-date employee protection.
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    \6\ While not mandated, OSHA encourages employers covered 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

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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 believes 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 preliminarily determines that 
this NPRM would 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 these 
employers would have if OSHA adopted the proposed standard.

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 proposed rule will not reduce the employee protections put 
into place by the standards OSHA is updating under this rulemaking. In 
fact, this rulemaking likely would 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 proposed standard would not be ``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 proposed standard is a ``significant regulatory 
action'' under Executive Order 12866.)
    The NPRM simply proposes to update references to outdated SDO 
standards in OSHA's Acetylene Standard. The Agency preliminarily 
concludes that the proposed revisions would 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 proposal imposes no costs on employers. 
Therefore, OSHA certifies that it would 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 
NPRM contain collection-of-information requirements. Therefore, this 
NPRM 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 above under Section II (``Direct Final 
Rulemaking'').
    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 NPRM 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 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 NPRM 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 final 
requirements that result from this proposal.
    In summary, this NPRM complies with Executive Order 13132. In 
States without OSHA-approved State Plans,

[[Page 40454]]

any standard developed from this proposal 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 preliminarily determined that the State-Plan States would have 
to adopt provisions comparable to the provisions in this NPRM within 
six months after the Agency publishes the final rule that results from 
this proposal. OSHA believes that the provisions of this NPRM would 
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 the final rule developed from this NPRM, 
Federal OSHA will provide the State/Territory with interim enforcement 
assistance, as appropriate.

F. Unfunded Mandates Reform Act of 1995

    OSHA reviewed this NPRM 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 preliminarily 
that this NRPM would not impose additional costs on any private- or 
public-sector entity. Accordingly, this NRPM would require 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 NPRM would 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 proposed 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 NPRM. The 
Agency also welcomes comments on its determination that this NPRM would 
have 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 contained in the companion direct final rule (DFR) 
and withdrawing this NPRM. 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 the DFR if it receives significant adverse 
comment on the amendments contained in the DFR, and proceed with this 
NPRM 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 DFRs, but not others, it may (1) finalize those 
actions that did not receive significant adverse comment, and (2) 
conduct further rulemaking under this NPRM for the actions that 
received significant adverse comment. The comment period for this NPRM 
runs concurrently with that of the DFR. Therefore, any comments 
received under this NPRM will be treated as comments regarding the DFR. 
Similarly, OSHA will consider a significant adverse comment submitted 
to the DFR as a comment to this NPRM; 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, Occupational safety and health, 
Safety.

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 proposed 
standard. The Agency is issuing this proposed standard 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..

    For the reasons stated above in the preamble, OSHA is proposing to 
amend 29 CFR part 1910 as follows:

PART 1910--[AMENDED]

Subpart A--[Amended]

    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; Pub. L. 106-113 (113 Stat. 1501A-222); and OMB Circular 
A-25 (dated July 8, 1993) (58 FR 38142, July 15, 1993).

    2. Amend Sec.  1910.6 as follows:

[[Page 40455]]

    A. Revise paragraph (k)(3).
    B. Remove paragraphs (k)(4) and (k)(5), and redesignate paragraphs 
(k)(6) through (k)(15) as paragraphs (k)(4) through (k)(13).
    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-
800-344-3555; 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-
800-344-3555; e-mail: custserv@nfpa.org.
* * * * *

Subpart H--[Amended]

    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.

    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. E9-18643 Filed 8-10-09; 8:45 am]

BILLING CODE 4510-26-P
