[Federal Register: January 5, 2005 (Volume 70, Number 3)]
[Rules and Regulations]
[Page 1111-1144]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ja05-24]
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Part V
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Parts 1910, 1915, and 1926
Standards Improvement Project-Phase II; Final Rule
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1910, 1915, and 1926
[Docket No. S-778-A]
RIN 1218-AB 81
Standards Improvement Project-Phase II
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Final rule.
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SUMMARY: The Occupational Safety and Health Administration (OSHA)
through this final rule is continuing to remove and revise provisions
of its standards that are outdated, duplicative, unnecessary, or
inconsistent, or can be clarified or simplified by being written in
plain language. The Agency completed Phase I of the Standards
Improvement Project in June 1998. In this Phase II of the Standards
Improvement Project, OSHA is again revising or removing a number of
health provisions in its standards for general industry, shipyard
employment, and construction. The Agency believes that the changes
streamline and make more consistent the regulatory requirements in OSHA
health and safety standards. In some cases, OSHA has made substantive
revisions to requirements because they are outdated, duplicative,
unnecessary, or inconsistent with more recently promulgated health
standards. The Agency believes these revisions will reduce regulatory
requirements for employers without reducing employee protection.
DATES: The final rule becomes effective March 7, 2005.
ADDRESSES: In accordance with 28 U.S.C. 2112(a), the Agency designates
the Associate Solicitor of Labor for Occupational Safety and Health,
Office of the Solicitor of Labor, Room S-4004, U.S. Department of
Labor, 200 Constitution Avenue, NW., Washington, DC 20210, to receive
petitions for review of the final rule.
FOR FURTHER INFORMATION CONTACT: Michael Seymour, Director, Office of
Physical Hazards (202) 693-1950. For additional copies of this Federal
Register document: 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
document, as well as news releases and other relevant documents, are
available at OSHA's homepage at http://www.osha.gov.
SUPPLEMENTARY INFORMATION: References to comments and testimony in the
rulemaking record are found throughout the text of the preamble.
Comments are identified by an assigned exhibit number as follows: ``Ex.
5-1'' means Exhibit 5-1 in Docket S-778-A. For quoted material in the
preamble, the page number where the quote can be located is included if
other than page one. The transcript of the public hearing is cited by
the page number as follows: Tr. 59. A list of the exhibits, copies of
the exhibits and transcripts of the hearing are available in the OSHA
Docket Office under Docket S-778-A and at OSHA's homepage.
I. Background
OSHA has made a continuing effort to eliminate confusing, outdated,
and duplicative standards and regulations. In 1978, 1984, and again in
1996, the Agency conducted revocation and revision projects that
resulted in the elimination of hundreds of unnecessary provisions.
In 1996, OSHA proposed Phase I of the Standards Improvement Project
which set forth changes to a number of provisions in regulations and
standards that were outdated, duplicative, unnecessary, inconsistent,
or could be clarified or simplified by being rewritten in plain
language (61 FR 37849, July 22, 1996). In 1998, OSHA published the
final rule, Phase I of the Standards Improvement Project (63 FR 33450,
June 19, 1998). Substantive changes were made under section 6(b)
generally and under 6(b)(7) of the Occupational Safety and Health Act
of 1970 which provides that:
The Secretary, in consultation with the Secretary of Health,
Education, and Welfare, may by rule promulgated pursuant to section
553 of title 5, United States Code, make appropriate modifications
in the requirements relating to the use of labels or other forms of
warning, monitoring or measuring, and medical examinations, as may
be warranted by experience, information, or medical or technological
developments acquired subsequent to the promulgation of the relevant
standard.
The Agency believed that the revisions to its health and safety
standards in that final rule reduce the regulatory burden of employers
enhancing compliance while maintaining the safety and health protection
afforded to employees.
In a related effort in 1996, OSHA published a proposal to revise
Means of Egress, subpart E of part 1910 (61 FR 47712, September 10,
1996). OSHA proposed to rewrite the existing requirements in plain
language so that the requirements would be easier to understand by
employers, employees and others who use them. The proposal did not
intend to change the regulatory obligations of employers or the safety
and health protection provided to employees, only to simplify the
standard. The final rule was published on November 7, 2002 (67 FR
67949). OSHA believed it accomplished the goals of maintaining the
safety and health protections provided to employees without increasing
the regulatory burden on employers, creating a regulation that is
easily understood, and stating employers' obligations in performance-
oriented language to the extent possible. As a consequence of these
changes, the Agency believes it has made subpart E more user-friendly
to employees and employers. Compliance is generally improved when
employers and employees fully understand a regulation.
As a result of the Phase I Standards Improvement Project
rulemaking, the Agency identified itself or through public comment
other regulatory provisions that could be removed or revised to reduce
regulatory burdens without diminishing employee safety and health.
Those included amending provisions addressing notification of use,
frequency of exposure monitoring and medical surveillance, and others
that it believed were outdated, duplicative, unnecessary, inconsistent
or could be clarified or simplified by being rewritten into plain
language.
On October 31, 2002, OSHA published the proposed Phase II of the
Standards Improvement Project which would remove or revise a number of
health and safety standard provisions (67 FR 66494). Also, OSHA
requested comment from the public on any other similar provisions to
those in the proposal that interested parties believed to be outdated,
duplicative or unnecessary that could be included in a subsequent Phase
III Standards Improvement Project.
The Agency made a preliminary finding in the Phase II proposal that
the proposed revision to the health standards would reduce the
regulatory burden of employers without reducing the health protections
the standards currently provide to employees and that some revisions
would simplify and clarify requirements. These revisions would
facilitate employer compliance and improve employee protection. OSHA
also expressed its belief that the removal or revision of standards
would in some cases reduce unnecessary
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collection of information burdens (e.g., paperwork burdens) on
employers.
In addition to affecting part 1910 standards in general industry,
the Phase II proposed rule also affected a number of standards included
in parts 1915, shipyard employment, and 1926, construction. In
accordance with Agency procedures and requirements, the Advisory
Committee on Maritime Safety and Health and the Advisory Committee on
Construction Safety and Health were advised of the revised standards
that affected their industries prior to the publication of the proposed
standard. This information was presented to the Advisory Committee on
Construction on September 2, 2000, and the Advisory Committee on
Maritime on December 6, 2000.
The comment period for the Phase II Standards Improvement Project
proposal was to end on December 30, 2002. However, on January 6, 2003,
in response to several requests the comment period was extended until
January 30, 2003 (68 FR 1023). OSHA received 35 comments in response to
the notice of proposed rulemaking. Also, in response to several
requests to hold a public hearing to discuss the proposal, OSHA
announced a public hearing on April 21, 2003 (68 FR 19472). OSHA held
the public hearing on July 8 in Washington, D.C. OSHA staff testified
and responded to questions and several members of the public testified.
The administrative law judge scheduled the receipt of post hearing
evidence on August 8, 2003, and post hearing briefs for September 10,
2003. The judge received the post hearing documents and closed the
hearing record on February 26, 2004. The hearing resulted in 59 pages
of testimony. No post-hearing comments or briefs were received.
However, OSHA inserted some post-hearing material in response to
questions asked at the hearing (Ex. 9).
II. Summary and Explanation of the Final Rule
This section contains an analysis of the record evidence and policy
decisions pertaining to the various provisions of the final rule.
In the proposed rule, changes to provisions included: Methods of
communicating illness outbreaks in the temporary labor camps standard
(29 CFR 1910.142); first aid kits for general industry in the medical
services and first aid standard (29 CFR 1910.151) and the
telecommunications standard (29 CFR 1910.268); laboratory licensing in
the vinyl chloride standard (29 CFR 1910.1017); periodic exposure
monitoring in the vinyl chloride (29 CFR 1910.1017), 1,2-dibromo-3-
chloropropane (DBCP) (29 CFR 1910.1044), and acrylonitrile (29 CFR
1910.1045) standards; reporting the use of alternative control methods
in the asbestos standards for shipyards (29 CFR 1915.1001) and
construction (1926.1101); evaluating chest x-rays for inorganic arsenic
(29 CFR 1910.1018) and coke oven emissions (29 CFR 1910.1029)
standards; signing medical opinions in the asbestos standard for
general industry (29 CFR 1910.1001) and the cadmium standards for
general industry (29 CFR 1910.1027) and construction (1926.1127); and
semiannual medical examinations in the vinyl chloride, inorganic
arsenic, and coke oven emissions standards.
Also included were proposed changes to the requirements to notify
OSHA of certain events (e.g., a substance specific release or
emergency) in the standard for 13 carcinogens (29 CFR 1910.1003), the
vinyl chloride, inorganic arsenic, DBCP, and acrylonitrile standards;
semiannual updating of compliance plans in the standards for vinyl
chloride, inorganic arsenic, lead for general industry (29 CFR
1910.1025) and construction (29 CFR 1926.62), DBCP, and acrylonitrile;
and employee notification requirements in general industry standards
for asbestos, vinyl chloride, inorganic arsenic, lead, cadmium, benzene
(29 CFR 1910.1028), coke oven emissions, cotton dust (29 CFR
1910.1043), DBCP, acrylonitrile, ethylene oxide (29 CFR 1910.1047),
formaldehyde (29 CFR 1910.1048), methylenedianiline (29 CFR 1910.1050),
butadiene (29 CFR 1910.1051), and methylene chloride (29 CFR
1910.1052), and construction standards for methylenedianiline (29 CFR
1926.60), lead, asbestos, and cadmium.
Finally, although OSHA did not propose to delete the requirement to
use social security numbers in a number of its exposure-monitoring and
medical surveillance records, it requested comment on whether there was
a need to continue to include an employee's social security number in
these records.
In the proposal, OSHA emphasized that the scope of the rulemaking
was limited to removing or revising provisions that were outdated,
duplicative, unnecessary, or inconsistent with similar provisions in
other standards. In regard to ``inconsistent,'' the Agency specifically
proposed to revise a number of OSHA's older standards (vinyl chloride,
acrylonitrile, coke oven emissions, arsenic, and DBCP) to be consistent
with the frequencies of exposure monitoring, medical surveillance, and
compliance plan updates established in the majority of more recently
promulgated standards. Comment was solicited on whether it would be
appropriate to revise these older standards to be consistent with the
newer standards.
OSHA also noted that certain sections in part 1910 that were being
addressed in the proposal are incorporated by reference in parts 1915,
shipyard employment, and 1926, construction. Therefore, any changes to
referenced sections in part 1910 would also apply to parts 1915 and
1926.
Many commenters expressed their views on the approach taken by OSHA
in its Phase II Standards Improvement Project. Most commenters
supported OSHA's approach and its efforts to remove or revise standards
because they are outdated, duplicative, unnecessary, or inconsistent
(Exs. 3-5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 22, 24, 25, 26, 28, 29;
4-11, 12). For example, Phelps Dodge Corporation (Ex. 3-7) remarked
that ``We support OSHA's continuing effort to remove or revise
provisions of its standards that are outdated, duplicative,
unnecessary, or inconsistent, and we welcome the opportunity to share
our comments and suggestions.'' The National Institute for Occupational
Safety and Health (NIOSH) (Ex. 3-9) noted its support for OSHA's
efforts to ``reduce regulatory requirements for employers while
maintaining worker safety and health by removing or revising provisions
of standards that may be outdated, duplicative, or unnecessary.''
Another commenter, Organization Resources Counselors (Ex. 3-22), stated
in its discussion regarding OSHA's elimination of collection of
information (in this case, paperwork) requirements that:
If OSHA no longer has need to collect the type of information
required to be reported, or finds that the information provides no
useful benefits for either enforcement of the standard or protection
of employee health, the requirements should be deleted.
On the other hand, some commenters expressed their concern with the
manner in which OSHA was streamlining standards and in some cases on
the use of its resources for this type of project (Exs. 3-4, 16, 17,
18; 4-13; Tr. 38, 39, 46). The AFL-CIO (Tr. 29) observed that
``Throughout this proposal, the Agency has consistently sought to
streamline [standards] by reducing [them] to the lowest common
denominator.'' The United Steelworkers of America (Ex. 3-16) stated
that while ``this may reduce some administrative burdens on OSHA and
industry, it is hard to see how worker protection has been improved by
any of the changes.'' The Union of Needletrades, Industrial
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and Textile Employees (UNITE) (Ex. 3-18) remarked that it ``strongly
opposes expenditures of agency staff time and other resources on so-
called `improvements' to OSHA's standards when urgent action on clear
regulatory gaps remain unattended.''
However, based on the rulemaking record and experience from the
Phase I Standards Improvement Project, OSHA continues to believe that
the removal or revision of outdated, duplicative, unnecessary, or
inconsistent requirements and rewriting requirements into plain
language will simplify and clarify regulatory requirements, facilitate
compliance, and will lead to improved safety and health. In finalizing
the proposal, OSHA has been careful to ensure that the protections
afforded employees are not weakened. With respect to these goals, the
American Industrial Hygiene Association (AIHA) (Ex. 3-6) stated:
AIHA applauds OSHA's latest decision to move forward with Phase
II of the project through this proposed rulemaking. As was the case
with the first phase of this process, completed in 1998, we are
confident that the latest proposed health standard revisions will
meet with success in terms of reducing the regulatory burden of
employers without reducing the health protection that these
standards currently provide to employees.
AIHA wishes to publicly go on record as supportive of OSHA's
efforts to modernize these standards using a common sense approach.
Not only will the proposed revisions simplify and clarify the
requirements of the current health standards, but they will also
facilitate employer compliance, improved employee protection and
reduced regulatory burden--a ``win-win'' situation for health and
safety advocates, employers and employees.
Additionally, Dow Chemical Company (Ex. 3-13) observed:
Dow supports OSHA's efforts to streamline its existing standards
and to remove unnecessary or inconsistent provisions. Improvements
in consistency and practicality not only assist the regulated
community in its compliance efforts but also benefit OSHA and all
employees as the rules are easier to enforce and because employers
can better identify what they need to do to comply. Thus, Dow
applauds OSHA's continuing efforts to improve their standards. Dow
believes that this same philosophy of improvement for consistency
and practicality without compromising safety or health protections
can also be made in other areas of standards addressed in the
proposed rule.
OSHA appreciates the time and effort expended by commenters in this
rulemaking. The following is a provision by provision discussion of the
changes OSHA has made in Phase II of the Standards Improvement Project.
A. Temporary Labor Camps, 29 CFR 1910.142
Paragraph 1910.142(l)(2) of the temporary labor camp standard
requires camp superintendents to report immediately to local health
authorities ``by telegram or telephone'' the outbreak of specific
illnesses and medical conditions among employees. With respect to this
requirement, OSHA viewed the limitation to use a telegram or telephone
to notify health authorities as too restrictive in this age of
computers and the internet, and that other forms of communication
should be permitted. In the notice of proposed rulemaking, OSHA
proposed to delete the requirement to use a telegram or telephone for
notification, but retain the requirement that camp superintendents
immediately notify local health authorities of the outbreak any of the
illnesses or medical conditions specified by the provision.
OSHA received six comments regarding this proposal. All of the
commenters (Exs. 3-4, 16, 17, 22, 27; 4-11) agreed that telegrams and
telephones unnecessarily limit the method of reporting. A few
commenters (Exs. 3-17, 27) expressed concern, however, that if there
was no specification of the means of communication, slower means of
notification such as by mail might be used. For example, the United
Automobile, Aerospace and Agricultural Implement Workers of America
(UAW) (Ex. 3-17) opposed the removal for fear that employers would use
fourth class mail for reporting. The AFL-CIO (Ex. 3-27) expressed a
similar concern that the proposed change leaves the provision entirely
too vague and that employers could even use mail.
In response to this concern, OSHA has decided rather than deleting
the means of communication in the final rule, it would instead add
additional language that would eliminate the possibility of using a
slower means but permit equally fast means. OSHA concludes that any
``fast method'' is appropriate. The final rule now states ``by
telegram, telephone, electronic mail or any method that is equally
fast.''
B. Reference to First Aid Supplies in Appendix A to the Standard on
Medical Services and First Aid, 29 CFR 1910.151
In the 1998 Phase I of the Standards Improvement Project (63 FR
33450), OSHA revised paragraph 1910.151(b) of OSHA's standard for
medical services and first aid to require that adequate first aid
supplies be readily available at the workplace. To assist employers in
meeting this requirement for what would be adequate first aid supplies,
OSHA added a nonmandatory Appendix A to 29 CFR 1910.151, entitled First
Aid Kits, that references a national consensus standard, the American
National Standards Institute (ANSI) Z308.1-1978 standard, ``Minimum
Requirements for Industrial Unit-Type First-aid Kits.'' The Agency
believed that the information and reference to the ANSI standard in
Appendix A to 29 CFR 1910.151 would provide employers with helpful
information in selecting first aid supplies and containers appropriate
to the medical emergencies and environmental conditions encountered in
their workplaces.
OSHA pointed out in the Phase I Standards Improvement Project
preamble that ANSI was developing a revision of the Z308.1-1978
consensus standard (63 FR 33461) and that OSHA planned to propose to
revise Appendix A in Phase II to include the 1998 edition as long as
the revision was as effective in protecting employees. In Phase II of
the Standards Improvement Project, OSHA solicited comment and
information on whether the revised ANSI Z308.1-1998, Minimum
Requirements for Workplace First-aid Kits, consensus standard would
provide equivalent or better protection to employees than the 1978
edition. OSHA also inquired whether there were any other consensus
standards or guidelines available for first aid kits that might be
included in Appendix A.
At the time of the Phase II of the Standards Improvement Project
proposal, OSHA preliminarily found that the 1998 edition increased
compliance flexibility by emphasizing performance-based requirements.
OSHA also found that the 1998 edition provided employers with the
information they needed to select first aid containers and fill items
appropriate to the unique hazards in particular workplaces. OSHA
believed that the ANSI 308.1-1998 edition would protect employees at
least as well as the requirements of the 1978 edition.
OSHA received 13 comments regarding this proposed change (Exs. 3-3,
16, 17, 22, 24, 26, 27, 29; 4-6, 7, 8, 11, 13). Most commenters
supported the Agency's updating of the ANSI 308.1-1978 edition to the
1998 edition in the nonmandatory Appendix A. For example, Verizon
Communications, Inc. (Ex. 3-24) supported the revision to the 1998
edition because employers would have more flexibility and, therefore,
would improve protection to employees. The Pinnacle West Capital Corp.
(Ex. 4-7) observed that there have been changes in the medical
profession since
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1978, and agreed that the 1998 edition provides equivalent to better
protection to employees. One commenter, the AFL-CIO (Ex. 3-27), even
suggested that OSHA update the reference but make Appendix A mandatory
or enforce the ANSI standard under the general duty clause.
In the final rule, the Agency has changed nonmandatory Appendix A
to reference the ANSI 308.1-1998 standard. After reviewing the record
evidence and based on OSHA's review of both the 1978 and 1998 editions,
the Agency feels that the update to the 1998 edition will provide more
compliance flexibility to employers while being as effective, or more
effective, in the protection of employees. In its review of the 1998
edition, the Agency found that:
Regarding container requirements, the 1998 edition permits
more compliance flexibility than the 1978 edition. For example, the
1998 edition identifies three types of first-aid containers, types I,
II, and III, designed for stationary indoor use, mobile indoor use, and
mobile outdoor use, respectively, while the 1978 edition includes only
two types of containers, (standard and special purpose, with special-
purpose containers designed for use under extreme conditions such as
example, corrosive, nonsparking, nonmagnetic, or dielectric conditions.
Requirements for the three types of containers identified
in the 1998 edition are performance based, while the 1978 edition
provides extensive specifications for each type of container.
Unlike the 1978 edition, the conditioning and drop-test
procedures described in the 1998 edition for types II and III
containers, and the procedures for testing type III containers for
corrosion and moisture resistance, specify the minimum number of
containers required for testing.
The 1998 edition specifies that each type III container
subjected to drop testing must also undergo corrosion and moisture-
resistance testing to ensure the structural integrity of the container
under severe moisture conditions. The 1978 edition appears to allow
testing of different special-purpose containers under the drop- and
moisture-testing conditions.
Corrosion and moisture-resistance testing of type III
containers under the 1998 edition requires exposure of the containers
to simulated salt spray for 20 days in accordance with the provisions
of American Society for Testing and Materials (ASTM) consensus standard
B117 (``Operating salt spray (fog) operations''). The 1978 edition only
requires exposure of a special-purpose container to fresh water for 15
minutes.
Regarding the content (fill items) of the containers, the
1998 edition provides a short list of basic items needed to disinfect
and cover wounds, including special items for treating burns. However,
the 1998 edition lists optional fill items for use if an employer
identifies workplace hazards that may inflict injuries not covered by
the basic fill items. The 1978 edition has a single list of fill items,
some of which are unnecessary for many emergencies (for example,
forceps, metal splints, tourniquets). Additionally, the 1978 edition is
missing several important fill items (for example, medical-examination
gloves, cold packs).
The 1998 edition requires color coding of unit packages
that contain specific types of fill items (for example, yellow for
bandages, blue for antiseptics), while the 1978 edition has no such
requirement.
The 1998 edition, more often than the 1978 edition,
identifies fill items according to standardized testing and quality-
control methods. For example, the 1998 edition requires that absorbent
compresses meet the water-absorbency criteria of ASTM consensus
standard D117 (``Nonwoven fabrics''), and that antiseptics conform to
the requirements specified by the Food and Drug Administration in 21
CFR 333 (``Topical antimicrobial drug products for over-the-counter
human use''). The 1978 edition provides no absorbency criteria for
absorbent gauze compresses, while the antiseptic solution used for
antiseptic swabs is required only to be ``acceptable to the consulting
physician.''
The Agency's review of the two editions demonstrated that, compared
with the 1978 edition, the 1998 edition: Increases compliance
flexibility by emphasizing performance-based requirements, including a
choice of three containers and a list of basic and optional fill items;
improves the procedures for conditioning and testing first-aid
containers; and ensures the reliability and efficacy of the fill items
by basing the selection of these items on standardized testing and
quality-control methods. Based on this review, OSHA preliminarily found
that the provisions of the 1998 edition would provide employers with
the information they needed to select first-aid containers and fill
items appropriate to the hazards in their workplaces that could injure
employees. Consequently, the 1998 edition would protect employees at
least as well as the requirements of the 1978 edition.
The Agency believes that the 1998 edition of the ANSI standard is
as protective to employees but increases compliance flexibility and,
accordingly, has replaced the reference to the 1978 edition in Appendix
A of Sec. 1910.151 with a reference to the 1998 edition. OSHA believes
that appropriate guidance is contained in the 1998 edition for a
variety of workplaces with different needs.
Finally, although OSHA solicited information about other available
consensus standards, no suggestions were received.
C. First Aid Supplies in the Telecommunications Standard, 29 CFR
1910.268
Paragraph 1910.268(b)(3) of OSHA's telecommunication standard
requires an employer to: Provide first aid supplies (fill items)
recommended by a consulting physician; ensure that the fill items are
readily accessible and housed in weatherproof containers if used
outdoors; and inspect the fill items at least once a month and replace
expended items. In the proposal, OSHA proposed to revise paragraph
1910.268(b)(3) to read, ``Employers must provide employees with readily
accessible, and appropriate first aid supplies. An example of
appropriate supplies is listed in non-mandatory Appendix A to Sec.
1910.151.''
In Phase I of the Standards Improvement Project, OSHA removed from
paragraph 1910.151(b) of the medical services and first aid standard,
the requirement that a consulting physician approve first aid supplies
because it determined that commercial first aid kits are readily
available and would meet the needs of most employers (61 FR 37850).
OSHA noted that employers may have to enhance their first aid kits if
unique or changing first aid needs exist in their workplaces. OSHA
advised employers in Appendix A that if they had unique needs to
consult with the local fire/rescue departments, appropriate medical
professionals, or a local emergency room for help. Also, OSHA advised
employers that they should assess the specific needs of their worksite
periodically and augment the first aid kit accordingly.
In this proposal, the Agency preliminarily concluded that revising
the telecommunication standard to reflect the general industry first
aid requirements would be appropriate. The Agency received ten comments
(Exs. 3-4, 16, 17, 22, 24, 27, 29; 4-6, 8, 11) concerning this proposed
revision to the telecommunications standard. A few commenters (Exs. 3-
4, 16, 17, 27) indicated that they believed the revision would reduce
employee protection. For example, commenters believed that
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deleting the requirement to inspect kits monthly to replace used items
would increase the likelihood of deficient kits. Another commenter was
concerned that there would no longer be a requirement for weatherproof
kits.
However, other commenters supported the proposed changes (Exs. 3-
22, 24, 29; 4-6, 8, 11). For example, the American Chemistry Council
(Ex. 3-29) indicated that it supported the change to reflect present-
day realities in the first aid supplies market and also supported the
removal of the requirement for a physician's approval for supplies.
The Agency has concluded that substituting the guidance of
nonmandatory Appendix A to 29 CFR 1910.151 for the requirements
specified in paragraph 1910.268(b)(3) will reduce the regulatory burden
on employers in the telecommunication industry by increasing their
flexibility in meeting OSHA's requirements for first aid kits, allow
employers to purchase off-the-shelf first aid kits, and will facilitate
compliance by making the requirements to provide first aid kits
consistent across the general industry standards. The Agency believes
that the revision affords telecommunication employees at least the same
level of protection they currently receive because Appendix A to 29 CFR
1910.151 provides more extensive guidelines for selecting appropriate
medical first aid supplies than paragraph 1910.268(b)(3) and further,
provides the recommendation that these supplies include personal
protective equipment to prevent employee exposure to bloodborne
pathogens. Finally, OSHA believes that deleting the requirement for a
monthly inspection and weatherproof first aid kits does not reduce
employee protection. First aid kits must be complete and contain the
supplies necessary for the worksite. If upon inspection by an OSHA
compliance officer, a first aid kit was found to be deficient because
the supplies were depleted or water damaged, a citation could be issued
because the first aid supplies would not be considered adequate or
``appropriate.'' OSHA has concluded that the mandatory requirement to
have appropriate and accessible first aid kits maintains employee
protection.
D. 13 Carcinogens, 29 CFR 1910.1003
In the 13 Carcinogens standard, paragraph 1910.1003(f)(2) requires
employers to provide the nearest OSHA Area Director with two separate
reports on the occurrence of any incident that results in a release of
any of the 13 carcinogens into any area where employees may be
potentially exposed. The reports consist of (1) an abbreviated
preliminary report submitted within 24 hours of the carcinogen release
and (2) a detailed report submitted within 15 calendar days of the
incident. In the proposal, OSHA expressed its belief that these reports
were of little or no value to OSHA and were therefore creating an
unnecessary burden on employers. More recent substance-specific
standards including carcinogenic chemicals such as methylene chloride
developed by the Agency do not contain any such reporting requirements.
Because of these reasons, OSHA proposed to delete the requirement from
the standard to reduce reporting requirements because the reports were
unnecessary. OSHA requested comment on the extent to which the revision
would reduce the reporting burden on employers and the effect the
deletion would have on employee health.
OSHA received nine comments in response to the proposal to
eliminate the carcinogen standard reporting requirements (Exs. 3-4, 16,
17, 18, 22, 27, 29; 4-11, 13). Three commenters agreed with the removal
of the requirement (Exs. 3-22, 29; 4-11). The other commenters (Exs. 3-
4, 16, 17, 18, 27; 4-13) objected to the removal of the reporting
requirement. These commenters opposed the removal because: (1) The
deletion would reduce worker protection because reporting gives useful
information to OSHA by alerting it to workplace deficiencies; (2) the
information helps management avoid future spills, and; (3) the
information induces managers to take spills more seriously.
At the hearing OSHA was asked by a representative from the AFL-CIO
(Tr. 16) about how many reports on spills OSHA had received under the
current regulations. Responses from the OSHA regional offices indicated
that few reports are received and those that are received are not used
for inspection purposes (Ex. 9). Although a few OSHA staff believed
that incidence reports might be useful, that has not been the case.
Further, OSHA has a general requirement to report incidents that cause
death or serious injury (29 CFR 1904.39). That provision is used by
employers and OSHA and it does trigger compliance inspections.
The purpose for collecting these reports was to assist OSHA in
identifying workplaces for inspection. OSHA has not used these reports
over the years for this purpose and relies on other means to identify
establishments to inspect. Further, the commenters provided no evidence
that the reporting requirements serve to help management avoid future
spills or to entice managers to take spills more seriously. In
addition, the substances covered by this requirement are primarily
chronic toxins and a single spill does not necessarily indicate a
severe hazard requiring notification. Therefore, OSHA continues to
believe that the reports have not proven to be useful and are an
unnecessary employer burden since OSHA does not use them for
identifying workplaces for inspection. In addition, under the Paperwork
Reduction Act, agencies need to review their requirements to identify
those that serve no purpose and if they do not serve any purpose, then
consider removing them. Therefore, OSHA has eliminated the reporting
requirements. OSHA is not aware of any reason that the elimination of
the reports will reduce employee safety since OSHA does not use the
reports.
E. Vinyl Chloride, 29 CFR 1910.1017
Paragraph 1910.1017(k)(6) of the vinyl chloride standard specifies
that clinical laboratories licensed by the U.S. Public Health Service
under 42 CFR part 74, must analyze biological samples collected during
medical examinations. However, 42 CFR part 74 is outdated, and the
Public Health Service now addresses laboratory-licensing requirements
under 42 CFR part 493, laboratory requirements. Therefore, the Agency
proposed to delete the reference to 42 CFR part 74 from the vinyl
chloride standard. In the proposal, OSHA asked for comment on: (1) The
need to specify a licensing or quality-control requirement; (2) the
extent to which the requirements specified by 42 CFR part 493 would be
a substitute for the outdated requirements; and (3) whether any other
reference or criteria were available that could serve this purpose.
OSHA received eight comments on the proposed deletion of the
requirement for a Public Health Service licensed laboratory to analyze
biological samples collected during medical exams relative to vinyl
chloride exposure (Exs. 3-4, 8, 16, 17, 27, 29; 4-11, 13). The Vinyl
Institute (Ex. 3-8) supported the deletion of the provision entirely
because they saw no current need for specifying licensing or quality-
control of laboratories. The other seven commenters expressed their
belief that paragraph 1910.1017(k)(6) should not be changed without
either adding language offering equal or greater protection to workers
or updating the reference to the new Public Health Service laboratory
requirements (Exs. 3-4, 16, 17, 27, 29; 4-11, 13).
[[Page 1117]]
One commenter (Ex. 3-16) observed that this type of requirement,
laboratory licensing, was an example of the kind of requirement that
would be best dealt with by a generic medical monitoring standard which
could address laboratory certification for all standards.
Based on the comments OSHA does not believe in this case that it is
appropriate to reference outdated regulations, or that it would be
appropriate to reference the new PHS standards. However, it is
appropriate for OSHA to require employers use qualified laboratories
for required medical tests. Other OSHA health standards have assured
that qualified laboratories are used by requiring that employers use
accredited laboratories. For example, the Bloodborne Pathogens standard
[1910.1030(f)(iii)], the Benzene standard [1910.1028(i)(1)(ii)], the
Cadmium standard [1910.1027(l)(1)(iv)] and the Lead standard for
General Industry [1910.1025(j)(2)(iii)] require that medical tests be
performed by accredited laboratories. There are several organizations
that accredit laboratories. Each requires that laboratories implement
quality control procedures to maintain accreditation. Therefore, OSHA
has changed paragraph 1910.1017(k)(6)of the vinyl chloride standard to
require the use of accredited laboratories for the medical tests
required in paragraph (k)(1) of the standard.
F. Monthly and Quarterly Exposure Monitoring
Several of the Agency's older standards have provisions that
require employers to monitor employee exposures either monthly or
quarterly, depending on the level of a toxic substance found in the
workplace.
Paragraphs 1910.1017(d)(2)(i) and (d)(2)(ii) of the vinyl chloride
standard require employers to conduct exposure monitoring at least
monthly if employee exposures are in excess of the permissible exposure
limit (PEL) and not less than quarterly if employee exposures are above
the action level (AL).
Paragraphs 1910.1044(f)(3)(i) and (f)(3)(ii) of the DBCP standard
specify that employers perform exposure monitoring at least quarterly
if employee exposures are below the PEL and no less than monthly if
employee exposures exceed the PEL.
Paragraphs 1910.1045(e)(3)(ii) and (e)(3)(iii) of the acrylonitrile
standard requires employers to conduct exposure monitoring at least
quarterly for employees exposed at or above the AL, but below the PEL,
and at least monthly for employees having exposures above the PEL.
The preambles to these older standards do not clearly explain the
basis for adopting these monitoring frequencies. This absence of clear
explanation suggests that OSHA likely relied on prevailing practice at
the time for these older standards in establishing the frequencies. In
substance-specific standards promulgated after these standards,
exposure monitoring is required: (1) No more often than semiannually if
employee exposures are at or above the AL and (2) no more than
quarterly if employee exposures are above the PEL.
OSHA proposed to amend the exposure monitoring requirements
specified in the vinyl chloride, acrylonitrile, and DBCP standards
because they are inconsistent with the exposure monitoring protocols
established by OSHA in its later substance-specific standards. OSHA
believes that consistency among standards would increase compliance and
because the Paperwork Reduction Act directs agencies to reduce
paperwork burdens, OSHA therefore proposed to revise these paragraphs
to make them consistent with the similar requirements pertaining to
exposure monitoring in more recently promulgated health standards. That
exposure monitoring is: (1) At least quarterly if the results of
initial exposure monitoring show that employee exposures are above the
PEL; and (2) no less than semiannually if the results indicate
exposures that are at or above the AL. OSHA asked for comment on the
extent, if any, to which the revision would reduce the protection
afforded by the existing standards to employees exposed to vinyl
chloride, acrylonitrile, and DBCP. OSHA also requested comment on the
extent to which the proposed revisions would reduce employer burdens,
including cost and collection of information (i.e., paperwork)
reductions.
OSHA received 14 comments on modifying the exposure monitoring
requirements (Exs. 3-4, 8, 10, 12, 13, 14, 16, 17, 18, 27, 29; 4-11,
12, 13). Seven commenters supported consistency in exposure monitoring
for one or all of the substances (Exs. 3-8, 10, 13, 14, 29; 4-11, 12).
Dow Chemical Company (Ex. 3-13) observed that ``Consistency in
monitoring requirements reduces employer burdens and enhances
compliance while maintaining employee health protections.'' The
American Chemical Council (Ex. 3-29) stated:
ACC concurs that exposure monitoring should be consistent among
the Agency's standards. The proposed revisions to Sec. 1910.1044
and Sec. 1910.1045 will help to unify the requirements for exposure
monitoring. Further unification of the exposure monitoring
requirements will enable employers to have one monitoring strategy
that can be applied for all substances, rather than keeping track of
the differences between the varying standards.
The American Society of Safety Engineers (Ex. 4-11) remarked that
the ``revision will assist companies in implementing more uniform
industry hygiene programs. Also, there is no demonstrated need for more
frequent exposure monitoring these substances.''
The American Foundry Society (Ex. 3-12) expressed its view that the
exposure monitoring change does not go far enough. The commenter
stated:
The proposed revision * * * to go from monthly to quarterly and
from quarterly to semiannual does not go far enough. While
monitoring of potential employee exposure is essential to maintain
employee health and exposure monitoring as part of an engineering
study may be necessary to determine the source and magnitude of
exposure, periodic monitoring for its own sake imposes an
unnecessary and possibly punitive burden on employers and employees
unless there is some benefit to employee safety and health.
Once it has been determined that employees are exposed above an
Action Level or Permissible Exposure Level, additional monitoring
provides no additional useful information, unless it is part of an
engineering study. Simply conducting exposure monitoring for its own
sake wastes valuable health and safety resources and builds
resentment among employees who must wear sampling equipment without
justification.
We strongly urge OSHA to modify the requirement in all health
standards, now and in the future, to base the frequency of exposure
monitoring on the need to establish employee exposure levels or to
achieve some other useful safety and health objective. Of course,
additional exposure monitoring should be conducted when work
processes or practices change or there are good industrial hygiene
or engineering reasons to conduct such monitoring.
Six commenters disagreed with the proposed changes (Exs. 3-4, 16,
17, 18, 27; 4-13). For example, the Paper Allied-Industrial, Chemical
and Energy Workers Union (PACE) (Ex. 3-4) stated:
* * * For these selected agents which have well-established
toxicity, it is wholly inappropriate to ask employees whose exposure
monitoring shows that they are exposed at levels above the
permissible exposure limit to wait an addition 3 months to find out
whether these exposures have been reduced. Likewise for employees
whose exposures are above the action level, they should not have to
wait six months to learn
[[Page 1118]]
whether their exposures have been reduced below that level.
The United Steel Workers of America (Ex. 3-16) remarked:
When the three standards in question were written, it was
assumed that most employers would come into compliance in a
reasonable amount of time. Indeed, most have--by better controls in
the case of vinyl chloride and acrylonitrile, by a phase-out of the
chemical in the case of DBCP. Now OSHA proposes to reward those
employers who have not achieved compliance. These changes will
impair worker protection, and are not supported by evidence in the
record.
Also, the International Chemical Workers Union (Ex. 4-13) observed:
We do not believe that a change to these standards is justified.
Each rule and requirement went through the rulemaking process at the
time, weighing all available evidence. Again, just because later
rules, for different chemicals with different hazards, controls and/
or toxicities have different requirements, do not provide adequate
justification for a change in monitoring frequencies. OSHA needs to
provide additional information which gives a valid justification for
change before proposing such changes.
The standards for vinyl chloride, acrylonitrile, and DBCB are among
the oldest of OSHA health standards. As the United Steel Workers of
America noted, most employers have come into compliance. Those
employers who have not been able to achieve compliance through feasible
engineering controls are required to protect their employees by using
personal protective equipment. Those employers who have not been able
to reduce worker exposures have collected hundreds of samples since the
effective dates of these standards. Very high monitoring frequencies
will not add appreciably to the statistical confidence an employer will
have in the conclusion that employees' exposures exceed a permissible
exposure limit or action level. Monitoring quarterly and semiannually
will protect employees by allowing time to improve the workplace, while
still producing suitably current information to employers and
employees. When employers are over the action level or exposure limit,
periodic monitoring is required to assure that proper respirators and
personal protective equipment are worn.
Moreover, OSHA concludes, after reviewing the comments, that
uniformity of monitoring frequency is beneficial for employers and
employees (unless there are specific reasons for different frequency)
because uniformity permits an employer to develop a more efficient and
thus, better, industrial hygiene program and to increase compliance by
improving understanding of health standards. In addition the Paperwork
Reduction Act requires OSHA to consider reduction in paperwork burden
when that will not interfere with worker protection.
OSHA notes that two of its standards, 29 CFR 1910.1028 and
1910.1051, benzene and 1,3-butadiene respectively, provide for exposure
monitoring frequencies different from the quarterly and semiannual
monitoring contained in other standards. The Agency is not revising
benzene or 1,3-butadiene with respect to monitoring frequencies because
the exposure monitoring provisions in those standards have specific
bases in their rulemaking records that preclude changing them for
consistency under this standards improvement action. (See e.g. 52 FR
34533-41, September 11, 1987.)
G. Alternative Control Methods for Class I Asbestos Removal
Provisions in OSHA's asbestos standards for shipyard employment and
construction, paragraphs 1915.1001(g)(6)(iii) and 1926.1101(g)(6)(iii),
respectively, address alternative control methods used to perform Class
I asbestos work. Specifically, the paragraphs require an employer to
send an evaluation and certification of alternative control methods to
OSHA's Directorate of Technical Support before removing more than 25
linear feet or 10 square feet of thermal-system insulation or surfacing
material respectively.
The purpose of this collection of information was for OSHA to
develop a database of alternative control methods for use in future
rulemaking. However, OSHA has not developed a database of alternative
control methods nor does OSHA plan a future rulemaking to do so.
Therefore, OSHA in the proposal said that these requirements are not
useful and are not in keeping with the Paperwork Reduction Act. Current
OSHA regulatory policy requires that paperwork provisions, such as
this, be a benefit to employee health or serve some other useful
regulatory purpose. Since certification of alternative control methods
does not meet this requirement, the Agency proposed to delete it from
the shipyard and construction asbestos standards. OSHA invited comment
on any regulatory benefit or purpose that removal of this requirement
would jeopardize.
Eight commenters addressed the removal of these paragraphs (Exs. 3-
4, 16, 17, 24, 25, 27; 4-7, 11). Some commenters (Exs. 3-24; 4-7, 11)
agreed with their deletion because OSHA has never used the information
to develop a database. Other commenters (Exs. 3-4, 16, 17, 27)
suggested rather than simply deleting the requirements, OSHA should
enforce the requirement and start a database of alternative control
methods which could be useful in rulemaking and to employers and
employees seeking methods of abatement. Finally, the Associated General
Contractors of America (Ex. 3-25) expressed concern that the change
would eliminate contractors' abatement options and lead to increased
delays to contractors and building owners because no simple
substitution process would be available to submit alternatives. In
response to this concern, OSHA would like to make it clear that the
removal of these requirements does not disallow the use of alternative
control methods since the submission of alternative control methods to
OSHA did not constitute approval of the methods.
As stated, the intent of this collection of information was for
OSHA to develop a database of alternative control methods, but no such
database was developed. Further, OSHA has no future plans to expend its
limited resources on developing a database. As to development or
availability of alternative control methodologies, there are many
competent asbestos abatement contractors and consultants available to
employers so it is not necessary for OSHA to research these issues or
collect information on them. Therefore, OSHA has deleted the
requirement in the shipyard employment and construction standards,
because it is an unnecessary and burdensome collection of information.
H. Evaluating Chest X-rays Using the ILO U/C Rating
OSHA proposed to amend paragraph 1910.1018(n)(2)(ii)(A) of the
inorganic arsenic standard and paragraph 1910.1029(j)(2)(ii) of the
coke oven emissions standard that require employees' chest x-rays
receive an International Labor Office UICC/Cincinnati (ILO U/C) rating.
Subsequent to the promulgation of these provisions, the Agency received
information from two physicians that the ILO U/C rating is not suitable
to evaluate chest x-rays for lung cancer, the possible outcome of
exposure to these chemicals. Regarding the use of the ILO U/C ratings
specified by the inorganic arsenic standard, Stephen Wood, MD, MSPH,
Corporate Medical Director for the Kennecott Corporation, states in a
letter to OSHA (Ex. 1-1):
This method of x-ray interpretation was designed specifically
for use in pneumoconiosis or dust related disease. Arsenic does not
cause pneumoconiosis. This
[[Page 1119]]
classification system is unnecessary for cancer surveillance and
represents a substantial cost and logistical burden to industry.
Later, Steven R. Smith, MD, Director of Occupational Health and
Occupational Medicine, Community Hospitals Indianapolis, wrote to the
Agency (Ex. 1-2) addressing the ILO U/C rating required by the coke
oven emissions standard:
I am sure you know that the main pulmonary problem with coke
oven emission exposure is carcinoma of the lung and not
pneumoconiosis. The main merit of the ILO U/C rating system is that
it standardizes the reading of films where there are parenchymal
opacities either round nodules or linear densities. For the problem
of carcinoma of the lung this system really has little to add over
the proper interpretation of films by skilled radiologists. I think
it is of much more importance that the chest films done as part of
the coke oven emissions exposure surveillance be interpreted by
expert radiologists who are aware of the fact the films are being
done primarily for pulmonary carcinoma. To require that an ILO U/C
rating system be employed as well seems to me as though it is going
to necessitate an additional expense as well as to greatly limit the
number of radiologists who are able to interpret such films.
Based on these letters and on the opinion of OSHA's Office of
Occupational Medicine, the Agency believed that the ILO U/C rating is
not a suitable method to use in evaluating chest x-rays for lung
cancer. Therefore, the Agency proposed to remove the ILO U/C rating
requirements specified in the inorganic arsenic and coke oven emissions
standards, thereby permitting the examining physician to determine the
most effective procedure for evaluating the chest x-rays. This approach
is similar to that taken in recent Agency standards that require the
evaluation of chest x-rays for cancer (e.g., paragraph
1910.1027(l)(4)(ii)(C) of the cadmium standard). As part of the cadmium
rulemaking, OSHA solicited comment and other information regarding the
suitability of the ILO U/C ratings for evaluating chest x-rays for
cancer, the identity of any other available method or procedure that
could effectively substitute for ILO U/C ratings, and the safety and
efficacy of the proposed elimination of the requirement.
OSHA received nine comments in response to this proposed change
(Exs. 3-7, 9, 16, 17, 27, 28, 29; 4-7, 11). Some commenters agreed
(Exs. 3-7, 28, 29; 4-7, 11) that the rating requirement should be
deleted because the method was not appropriate to evaluating chest x-
rays for lung cancer. The American Coke and Coal Chemical Institute
(Ex. 3-28) stated:
ACCCI concurs with the Agency's research and rationale that the
ILO-U/C rating is not suitable for proper evaluation of standard
posterior-anterior chest x-rays, as this designation does not
promote proper lung cancer surveillance. In addition to the
additional cost burden it imposes on employers, the requirement also
delays the reading response time, due to the extremely limited
number of radiologists qualified to render such an interpretation.
Pinnacle West Capital Corp (Ex. 4-7) indicated that its medical
consultant saw no detriment to employee protection if the requirement
was deleted.
Some commenters (Exs. 3-9, 16, 17, 27) whether they agreed with or
opposed the removal of the rating, believed substitute language should
be added and suggested what that language might be. For example, the
United Steel Workers of America (Ex. 3-16) agreed that the rating is of
little use for carcinogens but suggested that OSHA substitute the
rating requirement with one that the radiologist be certified by the
American Board of Radiologists to ensure qualified radiologists are
used. The AFL-CIO (Ex. 3-27) observed that the use of the rating
provided some quality control. To remedy the problem, the AFL-CIO
suggested that x-rays be read by NIOSH certified B readers.
OSHA has decided to eliminate the part of the provisions in arsenic
and coke oven emissions requiring the ILO U/C rating because the rating
is appropriate only for pneumoconiosis and is not useful for lung
cancer. OSHA agrees with commenters who noted that the rating method is
not appropriate for diagnosing cancer, its intended purpose. First, it
is clear that the specified rating method is inappropriate because it
addresses dust inhalation and resulting pneumoconiosis, a problem
unrelated to arsenic and coke oven emissions. The rating is not
appropriate for identifying cancer, the primary concern with respect to
these substances. Second, OSHA has no reason to believe that the
elimination of an inappropriate rating method will result in the use of
unqualified radiologists under the medical surveillance programs of
employers and does not believe it is necessary to add any other
language to the provision. OSHA has decided based on the rulemaking
record, to delete the requirement and does not believe that the
deletion will decrease employee health since the method is not even
appropriate to diagnosing the substances' likely disease outcome,
cancer.
I. Signed Medical Opinions
OSHA proposed to remove several requirements for medical opinions
to be signed. (The requirement that a medical opinion be obtained by
the employer was not affected by the proposed revision concerning a
signature.) Paragraph 1910.1001(l)(7)(i) of the asbestos standard, and
paragraphs 1910.1027(l)(10)(i) of the general industry cadmium standard
and 1926.1127(l)(10)(i) of the construction industry cadmium standard,
require that the examining physician sign the written medical opinion
provided as part of the medical-surveillance requirements of these
standards. The preamble to the cadmium standards states that the
purpose of requiring the physician to sign the opinion is to ensure
that the information that is given to the employer has been seen and
read by the physician and that the physician has personally determined
whether the employee may continue to work in cadmium-exposed jobs (57
FR 42366). No other substance-specific standards promulgated by OSHA
requires that the physician sign the medical opinion.
The Agency expressed its belief in the proposal that the
requirement for a physician to sign a medical opinion is unnecessary,
precludes electronic transmission of the opinion from the physician to
the employer, and provides no additional benefit to employees.
Accordingly, OSHA proposed to remove the requirement from these
standards. The Agency requested comment on whether a signed medical
opinion is necessary to ensure that the examining physician has
reviewed it prior to submitting it to the employer.
OSHA received 11 comments concerning the elimination of the
requirement for a physician's signature on a medical opinion (Exs. 3-3,
4, 7, 16, 17, 22, 24, 26, 27; 4-7, 11). Seven commenters saw no need or
reason for the signature (Exs. 3-3, 7, 22, 24, 26; 4-7, 11). For
example, Phelps Dodge Corp. (Ex. 3-7) agreed that the requirements
provide no added benefit and given current communication techniques,
requiring signed medical opinions actually slows the process of
completing the medical evaluation. The American Society of Safety
Engineers (Ex. 4-11) stated that it ``supports this change because it
permits the use of new technology, which is generally accepted in the
business and medical field, and will minimize paperwork burdens and
reduce delays receiving such reports, thereby enhancing safety and
health.''
Four commenters objected to deleting the requirement for a
physician's signature on the medical opinion (Exs.
[[Page 1120]]
3-4, 16, 17, 27). The views expressed by these commenters include: (1)
Physicians should take responsibility for their opinions; (2) employees
place greater weight on opinions signed by physicians; and (3)
providing signed opinions requires minimal effort. These commenters
generally agreed that if OSHA wanted to allow for electronic
transmission, then the provision should be revised to allow electronic
signatures.
OSHA does not believe that requiring a physician's signature on the
required comprehensive medical opinion has any impact on the validity
of the medical opinion. With or without a signature, the opinion is
given by a physician through the physician's office leaving no doubt
about responsibility for the opinion. Employees receiving the
physician's opinions will see that the physician's name on his or her
stationery sets forth the legitimacy of the report and the identify of
the responsible physician. Further, OSHA believes that an actual
physician's signature or a physician's electronic signature does not
guarantee that the physician has read the opinion, making these
signature requirements ineffective. The important part of the
requirement is that a medical opinion is given. OSHA does not believe a
signature establishes any greater validity to the medical opinion
whether it is signed personally or electronically and has concluded
that deleting the signature will not decrease employees' health
protections.
J. Providing Semiannual Medical Examinations to Employees Experiencing
Long-Term Toxic Exposures
Three of the Agency's oldest health standards specify that
employers provide semiannual medical examinations to employees having
long-term exposures to the toxic substances regulated by these
standards. However, these standards, which regulate employee exposures
to vinyl chloride, inorganic arsenic, and coke oven emissions (29 CFR
1910.1017, 1910.1019, and 1910.1029, respectively), require employees,
exposed for lesser periods, be given annual medical examinations.
Under paragraph 1910.1017(k) of the vinyl chloride standard
employers must institute a medical surveillance program including a
physical examination for employees exposed in excess of the action
level. For employees exposed above the action level and who have been
employed in vinyl chloride or polyvinyl chloride manufacturing for 10
years or longer, employers must provide a semiannual medical
examination (paragraph 1910.1017(k)(2)(i)). The preamble to this
standard provides no rationale for this requirement.
Paragraph 1910.1018(n)(3)(i) of the inorganic arsenic standard
requires that employers offer semiannual medical examinations to
employees who are 45 years or older who have been exposed above the
action level for 30 days per year or who have been exposed above the
action level to inorganic arsenic for at least 10 years. In justifying
this requirement, the Agency indicated in the preamble to this standard
that:
Long-term employees who have exposures now or in the near future
below the action level, but have had exposure above the action level
now or in the recent past, are quite likely to have had
substantially greater exposures in the more distant past. The
epidemiological studies indicate that risk increases with both
degree and duration of exposure (43 FR 19620).
OSHA notes that this statement addressed high exposures that occurred
prior to the 1970's.
Paragraphs 1910.1029(j)(3)(ii) and (j)(3)(iii) of the coke oven
emissions standard require employers to provide semiannual medical
examinations for employees who are at least 45 years of age, or have
five or more years of employment in a regulated area, and for an
employee in this age/experience group who transfers or is transferred
from employment in a regulated area, for as long as that employee is
employed by the same employer or a successor employer. In the preamble
to this standard, the Agency explains this requirement by stating that
the high risk population requires more frequent and more comprehensive
testing than the remainder of the population (41 FR 46779, October 22,
1976).
OSHA believes that the available evidence does not support the
requirements for semiannual medical examinations offered to employees
with long-term exposures to vinyl chloride, inorganic arsenic, or coke
oven emissions. Based on a review of the existing medical research
literature in Phase I of the Standards Improvement Project, the Agency
amended the inorganic arsenic and coke oven emissions standards by
reducing the frequency of chest x-rays from semiannual to annual and by
removing the requirement for sputum cytology entirely from these
standards (63 FR 33450). This review indicated that semiannual chest x-
rays and sputum cytology did not provide additional protection to
employee health over and above that provided by an annual chest x-ray.
Semi-annual medical exams provide little if any benefits when x-rays
are only justified on an annual basis. Further, other health standards
promulgated by OSHA, e.g., the 13 Carcinogens, benzene, ethylene oxide,
etc., only require annual medical examinations.
Based on the available evidence, at the time of the proposal, the
Agency believed that semiannual medical examinations for these three
substances were unnecessary, and that annual medical examinations would
be sufficient to detect cancer and other medical impairments caused by
exposure to vinyl chloride, inorganic arsenic, or coke oven emissions.
Also, aside from these three standards, no other substance-specific
OSHA standard requires semiannual medical examinations. OSHA also
believed that current medical practice with regard to employees
occupationally exposed to toxic substances is to screen them annually.
Therefore, the Agency proposed to revise these three standards to be
consistent with its other substance-specific standards that require
employers to provide annual medical examinations for covered employees
regardless of the duration of their exposures. OSHA requested comment
and other information on the effectiveness of annual versus semiannual
medical examinations in detecting cancer and other medical impairments
caused by exposure to vinyl chloride, inorganic arsenic, or coke oven
emissions.
OSHA received 13 comments concerning semiannual versus annual
medical examinations (Exs. 3-4, 7, 8, 10, 13, 14, 16, 17, 27, 28, 29;
4-7, 11). Most of these commenters supported the change from semiannual
to annual medical examinations (Ex. 3-4, 7, 8, 10, 13, 14, 28, 29; 4-7,
11). OxyChem (Ex. 3-10) supported OSHA's rationale that semiannual
medical examinations do not offer any more or better disease
identification than annual examinations. Further, OxyChem noted that
annual examination is the medical profession's standard, and is
consistent with all recent OSHA medical examination requirements. The
Vinyl Chloride Health Committee of the American Chemistry Council (Ex.
3-14) stated:
OSHA recognizes in the preamble that semiannual examinations are
not necessary, because annual medical examinations are sufficient to
detect any material adverse health effect caused by vinyl chloride
exposure. The Health Committee supports the proposal and notes that,
more than any other proposed change, this will reduce significantly
employer cost burdens without affecting worker health adversely.
Further, Pinnacle West Capital Corporation (Ex. 4-7) remarked:
[[Page 1121]]
These standards promulgated in the 70s took a very conservative
view in regard to medical monitoring requirements. In view of
today's knowledge and OSHA's mediating this ultra conservative
stance, we agree that annual exams are adequate to protect employee
health. We believe it will enhance compliance with OSHA standards by
making these rules consistent in requiring annual exams for all
substance specific standards.
Two commenters did not support eliminating the semiannual medical
examinations (Ex. 3-17, 27). The UAW (Ex. 3-17) noted that increasing
the frequency of examinations with increasing latency from first
exposure to carcinogens is logical and based on science. The AFL-CIO
(Ex. 3-27) expressed a similar opinion:
In the view of the AFL-CIO, the current language requiring
semiannual exams should be retained. Workers with long term
exposures to any of these three substances are likely to be at
increased risk of developing lung and liver cancer. The time since
first exposure is also increased among this subset of exposed
workers. More frequent screenings will assist these workers in
identifying or diagnosing their cancers earlier than with an annual
examination frequency.
OSHA continues to believe based on available evidence resulting
from its Phase I Standards Improvement Project, discussed above (that
semiannual x-rays and sputum cytology do not improve survival rates),
that annual medical examinations are sufficient to detect cancer and
other medical impairments caused by exposure to vinyl chloride,
inorganic arsenic, or coke oven emissions. The majority of commenters
also believed that requiring annual medical examinations would be as
effective as semiannual. OSHA finds that current medical practice to
screen annually, makes it administratively advantageous especially when
the medical examination may cover potential adverse health effects from
other chemicals. Finally, OSHA's experience with other substance
specific standards requiring annual medical examinations, persuades
OSHA that the three standards can be changed without a decrease in
employee health.
A second issue was raised in the proposal addressing the medical
examination in the coke oven emissions standard. OSHA sought comment on
whether the urinary cytology examination was a useful test. OSHA
indicated it might include its removal in the final rule if warranted,
based on comments. The coke oven emissions standard requires, in
paragraph 1910.1029(j)(2)(vii), that employers provide urinary cytology
examinations as part of the medical examination to exposed employees.
OSHA had adopted this requirement based on its belief that the urinary
cytology examination would serve as a useful tool in screening for
bladder cancer for those exposed to coke oven emissions.
However, at the time of this proposal, the Agency believed that the
use of urinary cytology in the coke oven emissions standard as a
screening tool for cancer should be reexamined based on more recent
scientific literature. OSHA's Office of Occupational Medicine (OOM)
reviewed data pertaining to the benefits of urinary cytology in the
detection of bladder cancer (Ex. 1-3). The literature indicates that
the sensitivity of urine cytology, that is, its ability to detect
bladder cancer, is not very powerful and, thus, not a particularly
effective screening test for this disease. OOM recommends that urinary
cytology testing be eliminated from the coke oven emissions standard.
However, OOM does recommend retaining dipstick urinalysis as an
inexpensive means of maintaining the urologic screening program until
more effective technology is developed, despite its low sensitivity for
detecting cancer. Comment was requested on the issue and on the OOM
recommendation of retaining dipstick urinalysis.
OSHA received five comments on the urinary cytology examination in
the coke oven emissions standard (Exs. 3-4, 16, 17, 27). None of the
commenters believe that OSHA should eliminate the urinary cytology
examination at this time. For example, the United Steel Workers of
America (Ex. 3-16) remarked:
We agree with OSHA that urinary cytology should be thoroughly
examined. While we have respect for OSHA's Office of Occupational
Medicine, the evaluation should be based on more than their opinion.
In addition, the Agency should consider newer methods for detecting
overexposures, such as 2-hydroxypyrenol. Until that analysis is
complete, the requirement for urinary cytology should be retained.
The AFL-CIO (Ex. 3-27) stated:
While we have no objection to OSHA reexamining the utility of
using urinary cytology as a screen for cancer, we are opposed to
removing it merely because the sensitivity of the screening tool
``is not very powerful''. If another screening method can be shown,
with scientific substantiation, to be more powerful then it may be
appropriate for the agency to require a different method to be used.
Until such time as this analysis has been completed and a more
powerful method identified, the AFL-CIO believes the requirement for
urinary cytology should be retained. To eliminate the screening test
altogether would weaken worker protection.
Based on comments, OSHA has been persuaded to retain the
requirement to conduct urinary cytology testing as part of the medical
examination required by the coke oven emissions standard until such
time that the Agency more fully examines alternatives to the test.
However, also based on the information in the record and comments, OSHA
is requiring the test be conducted on an annual basis as part of the
annual medical examination, the same time the other tests are required
(urinalysis), rather than every 6 months. OSHA has found no compelling
reason that the cytology test should be conducted more frequently than
the other tests required as part of the medical examination and it is
important to be consistent with the annual frequency of other required
medical examinations and tests so that it can be reviewed by the
physician.
K. Notifying OSHA Regarding the Use of DBCP or the Establishment of
Regulated Areas for Certain Substances
The Agency proposed to delete paragraph 1910.1044(d) of the 1,2-
dibromo-3-chloropropane (DBCP) standard. This standard is the only OSHA
substance standard that requires employers to submit a report to the
nearest OSHA Area Office that describes the employer's use of the
chemical within 10 days of introducing the substance into the
workplace. The preamble to the DBCP standard does not provide a
rationale for the requirement. Further, OSHA has not found this
requirement useful either for research or to assist in compliance
activities.
OSHA believed that the provision had little use in practice and
thus, it might be appropriate to remove this provision consistent with
the Paperwork Reduction Act mandates. OSHA requested comment on the
proposed deletion of paragraph 1910.1044(d) of the DBCP standard.
One commenter specifically disagreed with the deletion of paragraph
(d) of the DBCP standard. The commenter, the United Steel Workers of
America (Ex. 3-16) stated:
The DBCP standard requires employers to notify OSHA if they
introduce the substance into the workplace. No known employers
currently use or produce DBCP. If any do so in the future, it would
be useful for the Agency to know it. Therefore, there is no reason
to delete this provision. The deletion would not even reduce any
current paperwork burdens.
At the request of the public, OSHA queried its regions on the
notification of use and establishment of regulated area provisions. The
regions said that very few notifications have been received with regard
to any chemicals (e.g., arsenic) and that the reports are not used for
targeting inspections (Ex. 9-1-1). (For example, one region stated it
has
[[Page 1122]]
received 2 to 3 reports over 28 years regarding reporting for vinyl
chloride.) In any case, OSHA has other provisions for targeting
inspections.
OSHA has decided to delete this requirement. It has not been used
by OSHA and no other OSHA health standards have such provisions. At the
time of this proposal, OSHA was aware that DBCP is no longer produced
or used, and therefore no reduction in burden hours was projected for
the deletion. Nonetheless, if DBCP was used again, OSHA still considers
the provision an unnecessary burden under the Paper Work Reduction Act
and unnecessary for purposes of targeting inspections. Moreover, if
DBCP were to be used again, the standard would protect employees.
A number of other OSHA standards dating from the 1970s require
employers to notify the nearest OSHA Area Director/Office if they are
required to establish regulated areas in their workplaces. The
following standards have such a requirement: Paragraph 1910.1003(f)(1)
of the 13 carcinogens standard; paragraph 1910.1017(n)(1) of the vinyl
chloride standard; paragraph 1910.1018(d)(1) of the inorganic arsenic
standard; and, paragraph 1910.1045(d)(1) of the acrylonitrile standard.
The preamble to the vinyl chloride standard explains that the
purpose of this notification requirement is to enable OSHA to obtain
information on control technology (39 FR 35896, October 4, 1974). The
preamble to the acrylonitrile standard notes that the requirement is
designed to enable OSHA to be aware of facilities where substantial
exposure exists (43 FR 45762).
In the years since these standards were promulgated, OSHA has not
found the notification provision useful for the purposes described in
the two preambles nor have these requirements been useful for
compliance inspection targeting purposes. No other substance-specific
standards promulgated by OSHA require such notification. The Agency
proposed to delete the notification requirement from the standards to
reduce unnecessary collections of information (paperwork burdens)
required by OSHA but not used by OSHA. OSHA invited comment on the
effect this deletion would have in general, and specifically on
employee protection, employer burden, and paperwork reduction.
OSHA received 14 comments on the OSHA notification provision
concerning regulated areas (Exs. 3-8, 10, 13, 14, 16, 17, 18, 22, 27,
29; 4-7, 11, 12, 13). Nine commenters supported deleting notifying OSHA
of regulated areas (Exs. 3-8, 10, 13, 14, 22, 29; 4-7, 11, 12). Dow
Chemical (Ex. 3-13) observed:
Dow agrees with OSHA that it is appropriate to revise the
requirement that an employer notify the Agency when it has
established a ``regulated area.'' OSHA does not find the information
useful and we believe that the information serves no purpose and
should be eliminated. The requirement to notify places a burden on
the employer that does not appear to be necessary. Conditions in an
area that might require reporting can change quickly. While these
changes are being monitored, it does not appear to be a useful
exercise to determine how many days the employer has to postmark a
letter detailing the information to OSHA, particularly when OSHA
does not utilize the information anyway. Further, there are many
tasks that potentially might trigger establishing a regulated area,
where other tasks involving the same chemical do not. Thus, it does
not seem particularly helpful or necessary to notify OSHA when
establishing a regulated area which only exists when certain tasks,
done at a variety of different frequencies (rather than a permanent
arrangement), exists. Dow supports OSHA's efforts to eliminate this
unnecessary regulatory burden.
Organization Resources Counselors (Ex. 3-22) indicated it agreed with
the elimination of the provisions on the principle that if OSHA no
longer has a need to collect information or finds that the information
provides no useful benefits for enforcement or protection, then the
requirements should be deleted.
Five commenters did not agree that the regulated area notification
provisions were unnecessary or should be deleted (Exs. 3-16, 17, 18,
27; 4-13). The UAW (Ex. 3-17) observed that the stronger argument would
be to extend the requirement to other standards. This would enable OSHA
to target health inspections more efficiently. The AFL-CIO (Ex. 3-27)
stated:
We are also opposed to removing the requirement to notify OSHA
whenever regulated areas are established for the 16 carcinogens.
This information can be extremely helpful in protecting worker
health by identifying effective methods to control exposure and
targeting OSHA inspections. Instead of eliminating this requirement,
the agency should improve all its health standards by incorporating
this provision into all of its health standards.
Also, the ICWU (Ex. 4-13) believes the rule at least encourages
employers to investigate and institute corrective actions.
OSHA concludes that the notification requirements are not adding to
worker protection and eliminating them will reduce the collection of
information (paperwork) burden and overall improve compliance with OSHA
health standards by making them more consistent. OSHA has not been
using these reports for enforcement purposes. (See Ex. 9.) These are
older standards with a high degree of compliance and where technology
was long ago developed to achieve compliance. OSHA has other methods
for targeting inspections. OSHA therefore has decided to eliminate
these reporting requirements.
L. Reporting Emergencies to OSHA
Paragraph 1910.1017(n)(2) of the vinyl chloride standard and
paragraph 1910.1045(d)(2) of the acrylonitrile standard require
employers to report the occurrence of emergencies involving these
substances to the nearest OSHA Area Director/Office. The preambles to
these standards are silent on the reason for this reporting requirement
and OSHA has not found such reporting, which has occurred only rarely,
useful. In addition, other Agency substance-specific standards do not
have such a requirement. Accordingly, OSHA proposed to delete these
reporting provisions as unnecessary and a way to reduce unnecessary
collections of information (paperwork burdens). OSHA asked for comment
on the proposed deletions and for information on any impact such an
action might have.
Thirteen commenters addressed the deletion of the provisions
requiring notifying the OSHA Area Director/Office of an emergency (Exs.
3-4, 8, 10, 13, 14, 16, 17, 18, 22, 27, 29; 4-11, 13). Of those, seven
commenters supported the modification (Exs. 3-8, 10, 13, 14, 22, 29; 4-
11) and six commenters did not (Exs. 3-4, 16, 17, 18, 27; 4-13).
Generally, commenters that supported the modification believed that if
OSHA does not use the information, then it should not be collected.
The commenters who did not agree with the modification indicated
that the information could be very useful to OSHA and employers if it
was collected and evaluated properly. The AFL-CIO (Ex. 3-27) argued:
The AFL-CIO is opposed to the deletion of this requirement
because it will weaken worker protection. Information from
emergencies can be used to identify hazards and inform other
employers using these substances about control procedures that can
eliminate similar emergencies from occurring in the future. The fact
that such reporting has been rare is irrelevant and not sufficient
justification to delete it from these two standards. Furthermore, it
is our position that this emergency reporting requirement should be
extended to all of OSHA's health standards. To do so, in our
opinion, would genuinely result in the improvement of the
[[Page 1123]]
agency's standards and increase worker protection.
OSHA remains unconvinced by these arguments that it should retain
the requirement to report emergencies for these two substances. OSHA
regions have not been utilizing the few reports which have been filed,
though several regional staff felt they conceivably could be useful.
However, that the plans could be useful is not very persuasive when
they have not been used. OSHA has other regulations for reporting
deaths and serious injuries (see 29 CFR 1904.39).
Speculation that employees may be protected by these emergency
reporting requirements does not outweigh the fact that emergency
reports required by these standards are rare and OSHA has found them
not to be useful. Finally, no evidence in the rulemaking records for
OSHA's more recent health standards compelled the Agency to include
emergency reporting requirements. Thus, OSHA had concluded that the
requirements are unnecessary and create a needless paperwork burden.
Therefore, the requirement to report emergencies to OSHA contained in
these two standards is being deleted in this final rule.
M. Semiannual Updating of Compliance Plans
The Agency's substance-specific standards typically require
employers to develop compliance plans to meet the exposure-control
objectives of the standard. Most of these standards specify that
employers must update these plans at least annually because OSHA
believed that annual updating was sufficient to ensure the continued
effectiveness of the plans. However, a few of the substance-specific
standards promulgated by the Agency require semiannual updating. These
standards include: the standard for vinyl chloride, paragraph
1910.1017(f)(3); the inorganic arsenic standard, paragraph
1910.1018(g)(2)(iv); the lead standard, paragraph 1910.1025(e)(3)(iv);
the coke oven emissions standard, paragraph 1910.1029(f)(6)(iv); the
DBCP standard, paragraph 1910.1044(g)(2)(ii); the acrylonitrile
standard, paragraph 1910.1045(g)(2)(v); and, the lead in construction
standard, paragraph 1926.62(e)(2)(v).
The preambles to these standards, vinyl chloride, inorganic
arsenic, lead, coke oven emissions, DBCP, acrylonitrile and lead in
construction, contained no evidence pointing to the need for a
semiannual update of compliance plans in facilities handling these
substances. Further, OSHA believed that current industry practice with
respect to health issues is annual updating, which is consistent with
other OSHA health standards. Based on these reasons, the Agency
proposed to revise those substance-specific standards that contain
semiannual updating to annual updating. The revision would make the
compliance plan update requirements consistent across health standards
without diminishing employee protection and would also reduce
unnecessary paperwork. The Agency solicited comment on any impact,
particularly on employee health, that the proposed revision might have.
Many commenters addressed the proposed change to an annual update
of compliance plans (Exs. 3-4, 7, 8, 10, 13, 14, 15, 16, 17 18, 22, 27,
28, 29; 4-7, 11, 12, 13). Most of these commenters supported the
revision as well as OSHA's reasons (Exs. 3-7, 8, 10, 13, 14, 15, 22,
28, 29; 4-7, 11, 12). However, some commenters disagreed with the
proposed change (Exs. 3-4, 16, 17, 18, 27; 4-13).
Of those commenters that endorsed the change, OxyChem (Ex. 3-10)
stated:
The VCM standard requires a written compliance plan whenever
employees' exposures exceed the Permissible Exposure Limit
(``PEL''). The compliance plan is intended to help reduce employee
exposures to or below the PEL through use of engineering and work
practice controls. The written plan is required to be updated semi-
annually. Like several other proposed revisions affecting the VCM
standard, OSHA proposes to revise this regulation to require an
annual update of the written plan. This will make these rules
consistent with recent occupational health standards. While semi-
annual plan updating may have been important when the VCM standard
was published, it is no longer needed due to the reduced potential
for exposure to VCM in the manufacturing and user industries.
OxyChem supports this proposal.
Additionally, the American Coke and Coal Chemicals Institute (Ex. 3-28)
noted:
ACCCI supports this revision, as it would have no diminishing
effect on employee safety and health. Engineering controls are well
established and maintained throughout the industry, and work
practice controls remain regimented within individual coke making
facilities. Furthermore, employee protection is ensured through
related compliance with other applicable standards such as
Respiratory Protection (1910.134) and Personal Protective Equipment
(1910.132).
Finally, the American Society of Safety Engineers (Ex. 4-11)
recommended ``this change to encourage uniformity in industrial health
recordkeeping.''
In contrast, the AFL-CIO (Ex. 3-27) remarked:
The AFL-CIO is opposed to OSHA's proposed change. The semiannual
requirement applies to a significant number of chemicals and is an
important provision, particularly in circumstances where changes in
the workplace occur that may increase the potential for worker
exposures. Furthermore, in the interest of increasing worker
protection, we believe this requirement needs to be added to all of
the agency's health standards.
After reviewing the comments, OSHA concludes that annual updates are
sufficient. Uniformity among standards is advantageous for improving
compliance. Semi-annual updating of compliance plans was most useful in
the years immediately following the promulgation of these standards. In
those years, employers were installing engineering controls, evaluating
their effectiveness and making modifications to increase their
effectiveness. Now that many years have passed and engineering control
strategies have been well established, the need to evaluate twice each
year is diminished and does not outweigh the benefits of consistency
among OSHA's health standards. Employees continue to be fully protected
by the substantive provisions of these standards. Consequently the
revisions will make compliance plan updates more consistent without
diminishing employee protection. The revisions will also reduce
employers' collection of information burdens (paperwork) which the
Paperwork Reduction Act requires OSHA to consider. Therefore, OSHA is
revising these standards to allow for an annual compliance program
review.
N. Notifying Employees of Their Exposure Monitoring Results
Many of OSHA's substance-specific standards require employers to
notify employees of their exposure monitoring results. The manner of
notification varies. (See Table 1) Some standards require the employer
to provide written notification to each employee in a monitoring
program and also post the monitoring results. Other standards require
the employer to only notify the individual of exposure monitoring
results. Still other standards require that monitoring results be
posted.
Obviously, the reason for employee notification of monitoring
results is for employees to be aware of their exposures to regulated
substances. However, the preambles to these standards do not identify
the reasons for the differences in the manner in which employees are
informed of their exposure results. Also, there was no evidence to
suggest that the timing differences were based on effects on
[[Page 1124]]
employee health. Therefore, OSHA believed that making the notification
and timing requirements consistent across standards would reduce
regulatory confusion and facilitate compliance without diminishing
employee protection.
The Agency proposed to allow employers to provide employees with
their exposure monitoring results either individually in writing, or by
posting the results in a readily accessible location, or by both. There
were a number of considerations identified by OSHA with regard to the
manner in which employees are notified. For example, individual
notification gives employees a permanent record and they may take
individual notification more seriously. Individual notification also
avoids possible privacy concerns that may be associated with posting
results. However, individual notification increases the paperwork
burden on employers. On the other hand, posting monitoring has
advantages. When monitoring results are posted, all employees, not just
those monitored, will have knowledge of overall exposure related trends
in their workplace. Posting monitoring results, however, might pose
privacy issues that will be discussed under section O, Additional
Issues for Comment. OSHA requested information on the impact the
proposed revision might have on employee protection.
Table 1.--Method of Notification and Time Period for Notification of Exposure Results
----------------------------------------------------------------------------------------------------------------
Standard Method of notification Maximum period for notification
----------------------------------------------------------------------------------------------------------------
Part 1910--General Industry
----------------------------------------------------------------------------------------------------------------
Asbestos: Paragraph 1910.1001(d)(7)(i)... Individually in writing or 15 working days.
posting.
Vinyl Chloride: Paragraph 1910.1017(n)(3) Individually in writing only 10 working days.
Inorganic Arsenic: Paragraph Individually in writing only 5 working days.
1910.1018(e)(5)(i).
Lead: Paragraph 1910.1025(d)(8)(i)....... Individually in writing only 5 working days.
Cadmium: Paragraph 1910.1027(d)(5)(i).... Individually in writing and 15 working days.
posting.
Benzene: Paragraph 1910.1028(e)(7)(i).... Individually in writing only 15 working days.
Coke Oven Emissions: Paragraph Individually in writing only 5 working days.
1910.1029(e)(3)(i).
Cotton Dust: Paragraph 1910.1043(d)(4)(i) Individually in writing only 20 working days.
1,2-Dibromo-3-Chloropropane: Paragraph Individually in writing only 5 working days.
1910.1044(f)(5)(i).
Acrylonitrile: Paragraph Individually in writing only 5 working days.
1910.1045(e)(5)(i).
Ethylene Oxide: Paragraph Individually in writing or 15 working days.
1910.1047(d)(7)(i). posting.
Formaldehyde: Paragraph 1910.1048(d)(6).. Individually in writing or 15 working days.
posting.
Methylenedianiline: Paragraph Individually in writing or 15 working days.
1910.1050(e)(7)(i). posting.
Butadiene: Paragraph 1910.1051(d)(7)(i).. Individually in writing or 5 working days.
posting.
Methylene Chloride: Paragraph Individually in writing or 15 working days.
1910.1052(d)(5)(i). posting.
------------------------------------------
Part 1915--Shipyard Employment
------------------------------------------
Asbestos: Paragraphs 1915.1001(f)(5)(i) Individually in writing or As soon as possible.
and (f)(5)(ii). posting.
------------------------------------------
Part 1926--Construction
----------------------------------------------------------------------------------------------------------------
Methylenedianiline: Paragraph Individually in writing or 15 working days.
1926.60(f)(7)(i). posting.
Lead: Paragraph 1926.62(d)(8)(i)......... Individually in writing only 5 working days.
Asbestos: Paragraphs 1926.1101(f)(5)(i) Individually in writing or As soon as possible.
and (f)(5)(ii). posting.
Cadmium: Paragraph 1926.1127(d)(5)(i).... Individually in writing and 5 working days.
posting.
----------------------------------------------------------------------------------------------------------------
In addition to the notification requirements, these standards
contain a variety of different time limits between receipt of
employees' exposure monitoring results and notification of employees.
Employee notification time for exposure results range from ``as soon as
possible,'' to 5, 10, 15 or 20 working days after the employer receives
the monitoring results. See Table 1 for the amount of time permitted by
15 substance-specific standards for general industry, one for shipyard
employment, and four for construction.
OSHA proposed to require employers regulated by the 15 substance-
specific standards for general industry to notify employees of their
exposure monitoring results within 15 working days of receiving the
results. OSHA believed a consistent time-period would simplify employer
compliance and found no reason to believe that 15 days is an
unreasonable time frame or would in any way compromise employee
protection.
For construction employers covered by the methylenedianiline, lead,
asbestos, or cadmium standards, and shipyard employers covered by the
asbestos standard, OSHA proposed to require notification as soon as
possible but no later than five working days after the employer
receives the results of exposure monitoring.
The asbestos and cadmium standards established different time
periods for notification based on the industries affected. Although the
general industry asbestos standard requires employee notification
within 15 working days, both the construction and shipyard employment
asbestos standards require notification ``as soon as possible.''
Construction and shipyard employers were believed to have employees
that were involved in more short-term and intermittent activities.
Also, the general industry cadmium standard requires employee
notification within 15 working days while the construction cadmium
standard requires notification within five working days. Again, the
preamble to the construction cadmium standard states that the five
working-day notification period is appropriate because of the short
term nature of many construction jobs (57 FR 42383).
OSHA requested comment on the appropriateness of the different
notification time periods. The Agency believed that factors such as
short-term or intermittent projects might justify retaining the shorter
notification periods for construction and shipyard employment
activities, although some health standards allow 15 working day time
periods standards for these industries.
[[Page 1125]]
OSHA invited comment and information on the proposed revisions to
the notification requirements in OSHA health standards, particularly on
the differences proposed for employers in different industries and any
reduction in employee protection that may result from the proposed
revisions.
OSHA received 24 comments on the means of employee notification and
the time period to inform employees the results of exposure monitoring
(Exs. 3-1, 3, 4, 5, 7, 8, 10, 13, 14, 15, 16, 17, 18, 22, 23, 24, 26,
27, 28, 29; 4-7, 11, 12, 13). Of these comments, the majority addressed
OSHA's proposal to allow informing employees of their exposure
individually in writing, by posting the results, or by both (Exs. 3-1,
4, 7, 8, 10, 15, 16, 17, 22, 23, 26, 27, 28, 29; 4-12, 13) and most
supported the proposal (Exs. 3-1, 7, 8, 10, 15, 16, 22, 23, 28, 29; 4-
12, 13).
For example, Phelps Dodge Corporation (Ex. 3-7) remarked:
We support OSHA's proposal to allow employers to provide
employees with their exposure monitoring results either individually
in writing or by posting the employees' results in a readily
accessible location. We agree with OSHA's preliminary finding that
the goal of ensuring that employees are aware of their exposures can
effectively be met either by individual written notification or by
posting results in a location that is readily accessible to all
employees whose results are being posted. Posting results for
general observation is efficient and provides a large number of
people access to the exposure monitoring results. However, in some
cases, individual written notification may be the preferred method
of communication if the notification involves sensitive information.
We ask OSHA to provide employers with the flexibility to choose the
best method to notify employees and make this notification an
effective communication tool.
The United Steelworkers of America (Ex. 3-16) stated that ``We agree
that these standards should be harmonized, and we agree that exposure
results could be provided individually or by posting.''
One commenter that supported employer choice of individual
notification or posting, expressed concern about employee privacy with
respect to posting monitoring results. OxyChem (Ex. 3-10) observed that
``employers should not be forced to utilize employee identifiers that
invoke privacy concerns when performing the notification of
monitoring'' such as social security numbers. OSHA absolutely agrees
that employers should not use employee identifiers when posting
monitoring results and does not require such identification and
emphatically recommends that employers not use such identifiers.
Several commenters did not support allowing employers the latitude
in choosing the method of informing employees about their exposures
(Exs. 3-4, 17, 26, 27). The Paper, Allied-Industrial, Chemical & Energy
Workers International Union (PACE) (Ex. 3-4) remarked:
PACE sees no need or rationale for OSHA to change the
requirement that employees receive their own test results on an
individual basis. The proposed change is highly objectionable. In
fact, OSHA should required that employers provide written
notification of such results to individuals and, in addition, should
require employers to post such results on an anonymous basis in a
conspicuous place in the workplace. Many workers do not pay much
attention to bulletin boards in the workplace and, therefore, use of
such a communication method would likely not be effective. Also by
being provided a written copy of exposure monitoring results, the
employee has a record of exposures to toxic substances in a form
that they can take with them, should they change employers.
OSHA concludes that its proposal to permit employers to either post
or individually provide monitoring data to employees is justified.
There is a substantial health benefit to employees to posting. They
will be able to know exposures in all parts of the workplace, to know
whether the employer is keeping exposures below the PEL, where in the
workplace they need to wear a respirator and overall exposure trends.
Individual notification may have some privacy benefits and employees
may take the notification more seriously. Balancing these factors, and
the reduced collection of information (paperwork) burden and increased
flexibility at giving the employer the option, OSHA concludes that the
proposal is justified. If an employee wants a copy of the record, then
the employee can request the record under the 29 CFR 1910.1020, Access
to Employee Exposure and Medical Records standard.
Of the 24 comments that addressed employee notification and the
time limits for informing employees of exposure results, 21 commented
on the number of days employers should have before notifying employees
of exposure (Ex. 3-1, 3, 4, 5, 7, 8, 10, 13, 14, 15, 16, 23, 24, 26,
27, 28, 29; 4-1, 7, 11, 13). Although commenters generally agreed that
it would be beneficial to have a consistent timeframe across standards,
some commenters believed that 5 days should be the reporting time for
general industry rather than the proposed 15 days (Exs. 3-4, 16, 26,
27; 4-13). For example, PACE (Ex. 3-4) remarked:
OSHA's proposal to standardize the reporting period for employee
monitoring results is fine, but the period should be a maximum of
five days. There is really no need for a longer period of time.
Providing for a longer period of time for notification communicates
the lack of importance of such monitoring. In addition, use of a one
week period will allow workers to remember what kinds of activities
they were engaged in on the day of monitoring, which, in turn, may
have lead to excessive exposure. Hence, the utility of exposure
monitoring would be enhanced with a short notification period.
The United Steelworkers of America (Ex. 3-16) observed:
We agree that these standards should be harmonized, and we agree
that exposure results could be provided individually or by posting.
But there is no reason for an employer to hold monitoring results
for up to three weeks before passing them on to the employee,
especially when the employer can do so by posting. These standards
should be harmonized upwards, to a maximum notification period of
five working days.
Finally, the AFL-CIO (Ex. 3-27) stated that:
The AFL-CIO fully agrees that it is reasonable to establish
consistency in the notification period. However, it is our position
that, in order to be genuinely consistent in protecting workers from
exposures to all of these substances, a 5 day notification period
should be applicable across all industries and not just construction
and shipyard industries. Again, OSHA's proposed 15 day period for
general industry is the lowest common denominator. Reducing,
uniformly, the notification period to 5 days increases worker
protection by reducing the period of time between notification of
the results and the subsequent implementation of responses to reduce
worker exposure where overexposures have been identified.
On the other hand, the majority of commenters agreed with the 15
day uniform reporting proposal for general industry (Exs. 3-1, 3, 7, 8,
10, 13, 14, 15, 22, 28, 29; 4-1, 7, 11). A commenter from Phelps Dodge
Corporation (Ex. 3-7) observed:
We support OSHA's proposal to make the requirements for
notifying employees of exposure monitoring results in the 15 general
industry standards consistent at 15 working days. This time interval
ensures timely communication of results to employees, while giving
employers sufficient time to adequately evaluate and communicate
exposure-monitoring results. In addition, many standards require
that the employer communicate a corrective action plan to the
employee when exposures exceed the Permissible Exposures Limit. It
is often impossible to develop an effective and realistic plan in
less than 15 working days.
Dow Chemical Company (Ex. 13) remarked:
Having consistency in this area will greatly reduce
administrative burden as well as
[[Page 1126]]
regulatory confusion. This, in turn, will facilitate better
compliance without diminishing employee protection.
The American Coke and Coal Chemicals Institute (ACCCI) (Ex. 3-28) also
supported the proposal by stating:
ACCCI is in agreement with the proposal revisions, as they would
facilitate regulatory compliance without adversely affecting
employee health. By increasing the notification period to 15 days,
it not only provides consistency with other standards but also
provides employers with the leeway to work through periods when
employees may be away from work and to coordinate any remedial
testing that may be warranted by the initial results.
Finally, the American Chemistry Council (Ex. 3-29) noted:
The wide variety of existing requirements creates confusion and
an unnecessary burden on employers to keep detailed records on
individual employees' different potential exposures. ACC recommends
OSHA establish a uniform reporting timeframe (e.g. fifteen days).
A few commenters urged OSHA not to limit the maritime shipyard
proposal (Ex. 3-1) or the construction proposals (Exs. 3-5, 7, 13, 24;
4-7) to a 5-day notification rather than a 15 day notification.
Northrop Grumman Newport News (Ex. 3-1) indicated that it:
Does not agree with the proposal to require notification ``as
soon as possible but no later than five working days'' after
shipyard employers receive exposure-monitoring results. The shipyard
employee population is as non-transitory as general industry in
spite of short-term and intermittent projects and that those
employees will receive exposure notification as effectively as in
general industry.
With respect to the construction industry, Phelps Dodge Corporation
(Ex. 3-7) stated:
We believe that the construction industry should also be allowed
15 working days to communicate the results of exposure monitoring.
While some employees in these fields are employed for only short
periods of time, the employer would still be able to reach them to
communicate their results in the vast majority of cases. Interaction
between employers and transient employees continues to take place
when paychecks or tax documents are mailed. We believe that the
proposed five-day time limit in the construction standard
effectively prohibits any meaningful employee involvement in
developing action plans.
Dow Chemical Company (Ex. 3-13) remarked:
While we understand the premise for the difference in report
times (namely, that the transient nature of construction work and
the construction workers may lead to difficulty in communicating
results), this has not been our experience. Construction workers
must still provide addresses to their employer and this information
can still be channeled to the individuals accordingly. Moreover,
employees in general industry as well as construction are advised of
their rights to access this information. To have inconsistent
notification requirements will be confusing for General Industry
employers that may have extensive construction work on their sites,
as they may have to comply with both standards. Dow believes that
both the General Industry and Construction Standards should follow
the proposed 15 working day requirement for employee notification.
Finally, Pinnacle West Capital Corporation (Ex. 4-7) observed:
We see no reason to have a shorter period for construction
workers. Our experience is that when we monitor a contractor's
employee, we provide notice to the construction company, who is then
required to provide it to their employee. The 15 working day period
would allow enough time to complete the notification. Even when the
worker has left the construction company's employment, they usually
have either his/her home address or know for which union he/she
works. This notification can be made to either place. Less than 15
working days almost make this almost impossible.
OSHA has concluded that a uniform time limit for notifying
employees in general industry has substantial benefits. It will improve
employer understanding of standards and improve compliance. As a
practical matter it will reduce employers paperwork burdens because
their compliance program will be simpler and uniform. There will be no
reduction in employee protection and probably improvement because of
improved compliance. The 15 working day period is a reasonable time for
notification in general industry with its more stable workforce and is
the time frame OSHA adopted in most of its health standards for general
industry.
Employment at a particular location is often brief in construction
and sometimes brief in shipyards. Therefore OSHA is finalizing the
proposal ``as soon as possible but not more than 5 working days''
requirement for asbestos in shipyards and MDA, lead, asbestos, and
cadmium in construction.
O. Additional Issue for Comment
Social Security Numbers
OSHA's substance-specific standards require that exposure
monitoring and medical-surveillance records that the employer is
required to retain, include the employee's social security number
(SSN). In the preamble to the final methylene chloride standard (62 FR
1598, January 10, 1997), OSHA justified the requirement for employers
to document social security numbers by observing that the numbers are
correlated to employee identity in other types of records and that they
are a more useful differentiation among employees since each number is
unique to an individual for a lifetime and does not change as an
employee changes employers. In a letter of interpretation regarding the
use of social security numbers in the asbestos standard for
construction (April 16, 1999), the Agency provided the following
response. Many employees have identical or similar names and that
identifying employees solely by name makes it difficult to determine to
which employee a particular record pertains. The use of SSNs avoids
this problem because they are unique to an individual.
In addition, epidemiologic studies of employee health from
workplace exposures to toxic substances require that social security
numbers be attached to employee medical and monitoring records. Only in
that way can employee health end points be compared to employee
exposures over many years, over changes in employers and ultimately be
compared to death certificates.
However, OSHA has examined alternatives to requiring SSNs in its
requirements for employee identification due to growing concerns about
individual privacy. In Phase II of the Standards Improvement Project,
OSHA requested public comments on: the necessity, usefulness, and
effectiveness of SSNs as a means of identifying employee records in
exposure monitoring and medical-surveillance records. Further, OSHA
asked whether there were privacy concerns or issues raised by this
requirement. Finally, the Agency inquired about the existence of other
equally effective methods of uniquely identifying employees for OSHA
exposure and medical-surveillance records.
The Agency received 14 comments with respect to OSHA's requirements
to use employee SSNs in records (Exs. 3-1, 7, 9, 16, 17, 24, 26, 27,
28, 29; 4-6, 7, 11, 13). Seven commenters believed that SSNs needed to
be retained in OSHA standards (Exs. 3-9, 16, 17, 24, 27; 4-6, 13).
NIOSH (Ex. 9) strongly believes in the use of SSNs. NIOSH stated:
In NIOSH's experience, the SSN is the most practical identifier
when studying large workplace populations. Any other unique and
unchanging individual identifier that would accompany a worker
throughout his or her life would essentially serve as an SSN
surrogate. This alternative identifier would also have to be a
unique personal identifier
[[Page 1127]]
and would thus share any privacy concerns associated with the use of
SSNs.
NIOSH listed a number of shortcomings concerning the use of employer-
generated identifiers. They include:
1. Use of non-unique identification numbers or codes across
employers;
2. Re-issuance of previously used identification codes to different
individuals;
3. Periodic changes in identification codes with changes in company
ownership or organization;
4. Introduction of new or revised data management systems;
5. Changes in product lines;
6. Elimination of functions or activities;
7. Implementation of new payroll or other administrative systems;
8. Revision of job titles;
9. Abbreviations following personal names (e.g., Jr., Sr., Esq.)
10. Variations in spelling of names or name changes (for example,
through marriage).
The United Steel Workers of America (Ex. 3-16) remarked:
Employers currently use social security numbers on virtually all
employee records. Almost all health care institutions and insurance
companies identity individuals by social security number. We
understand OMB's privacy concerns, but employee exposure records are
an insignificant part of the problem of workplace privacy. Deleting
requirements for social security numbers would complicate record
handling. It would also complicate epidemiological studies, which
depend on social security numbers to ascertain vital status.
Also, Verizon Communications, Inc. (Ex. 3-24) offered its opinion on
why SSNs should be retained in OSHA health standards:
Anytime a SSN is used as an identifier on paperwork, one might
raise the issue of privacy. However, one should try to balance these
privacy issues against the need to have a unique identifier that can
be used to track individuals. Certainly, a SSN is unique and follows
the person for a lifetime. There is no ambiguity when such an
exclusive number is used. In work-related exposure situations, it is
desirable to track individuals for the short term and the long term.
There is a strong emphasis within the public health arena to follow
and protect workers, especially over a working lifetime with
multiple employers. Verizon believes that this need outweighs the
potential privacy issues involved in using a SSN for tracking
purposes. Verizon is not aware of anything comparable to a SSN that
could serve a similar purpose. Even if there were, privacy issues
might also be raised with its use. In summary, it is Verizon's
opinion that if one balances the uniqueness of SSN and the strong
public health policy to follow and protect these individuals
employees against the public's interest in maintaining adequate
privacy, the scales are tipped in favor of retaining the current
system.
Four commenters disagreed with continuing the use of SSNs (Exs. 3-
1, 7, 28; 4-7) and suggested that some other identification system
should be developed to identify employees for the purposes of exposure
monitoring or medical-surveillance. Northrup Grumman Newport News (Ex.
3-1) expressed:
OSHA should not continue to require that social security numbers
be used as identifiers in employee exposure records. Widespread
personal security concern associated with using them to identify
individuals and records makes this practice unpopular and
unnecessary in today's environment.
Many companies, including Northrop Grumman Newport News, have
already implemented alternative employee identification systems to
allay employee security concerns and are in the process of phasing-
out routine use of social security numbers as identifiers. If OSHA
were to continue to require the use of social security numbers,
employers using alternative numbering systems would be forced to
maintain redundant and more secure social security number systems.
This would be unnecessarily cumbersome, would not provide added
benefit to OSHA, employers or employees and would be a continued
concern to employees worried about personal security issues.
Another commenter, Pinnacle West Capital Corporation (Ex. 4-7), stated:
We see no value in requiring monitoring records to include the
social security number (SSN). Most employees, either ours or
contractors are reluctant to give their SSN for privacy reasons. The
only reason we were ever told that SSNs were necessary was for use
in future epidemiological studies. We use our unique employee
numbers for our workers. If needed for an epidemiological study, we
could cross-reference the SSN from our employee numbers. That should
be adequate to meet this need.
Finally, a few commenters recognized the need to identify employees
for exposure monitoring and medical-surveillance but suggested that
some other identification system might be developed in the future (Ex.
3-26, 29; 4-13). The American Chemistry Council (Ex. 3-29) indicated
that it believed SSNs are the most effective means of tracking lifetime
exposures to employees. ``However, we also recognize potential privacy
concerns within individual companies that may warrant further
discussion and consideration. ACC would be interested in discussing
alternatives with other stakeholders should OSHA convene such a
group.'' The International Chemical Workers Union (Ex. 4-13) indicated
that it is concerned about identity theft and that a means must be
found to both protect employees privacy and ensure continuity of
records across time and across employers.
Finally, the American Society of Safety Engineers (Ex. 4-11)
remarked that employers should have the flexibility to use any system
that enables accurate identification and tracking of employees for
medical purposes.
OSHA health standards require employers to keep social security
numbers with monitoring and medical records which employers are
required to retain. All employers have access to employee social
security numbers for tax purposes. OSHA's Access to Employee Exposure
and Medical Records standard, 29 CFR 1910.1020, grants access to
employee medical records only to the employee, those who the employee
authorizes in writing to have access and to OSHA in circumstances
requiring OSHA to rigorously protect the employee's privacy. So there
is no additional privacy concern created by having social security
numbers included in the medical records beyond that already existing in
the employers use of the social security numbers for payroll and tax
purposes.
Access to employee exposure records is similar except that a
collective bargaining agent for an employee does have access to the
monitoring data for employees. That assists collective bargaining
agents to negotiate on employee health protection issues.
However, there is no requirement and no need for an employer to
attach social security numbers to employee exposure records it intends
to post or provide to anyone other than the employee whose record it
is.
OSHA is not taking action in this final rule concerning the use of
SSNs in the various health standards. OSHA believes that all commenters
have raised significant concerns and that it will need to investigate
this issue in greater detail.
First Aid
One commenter (Ex. 3-20), the American Heart Association, responded
to the proposal with a request to eliminate or revise the OSHA
Directive CPL-2-2.53, Guidelines for First Aid Training Programs. The
request to revise the OSHA Directive is not a part of rulemaking and
therefore has not been considered in this final rule.
III. Legal Considerations
The Agency concludes that the final rule does not reduce the
employee protections put into place by the rules being revised. There
is no change in exposure limits or action levels. There
[[Page 1128]]
are no reductions in respiratory protection, personal protective
equipment or industrial hygiene provisions. There is therefore no
change in risk and no need to determine significant risk, or the extent
to which the proposed rule would reduce or increase that risk, as would
be required by Industrial Union Department, AFL-CIO v. American
Petroleum Institute, 448 U.S. 607 (1980), the Supreme Court ruling
applying to standards addressing new hazards, setting more stringent
standards, or reducing employee protection. Accordingly, no further
analysis of significant risk is necessary as that has already been
determined when OSHA issued the underlying standards.
A number of the amendments made by this rule change medical and
monitoring provisions. These changes are covered by Sect. 6(b)(7) of
the OSH Act.
IV. Final Economic Analysis
OSHA has determined that this final rule is not an economically
significant regulatory action under Executive Order (E.O.) 12866. E.O.
12866 requires regulatory agencies to conduct an economic analysis for
rules that meet certain criteria. The most frequently used criterion
under E.O. 12866 is that the rule will impose annual costs on the
economy of $100 million or more. Neither the benefits nor the costs of
this rule exceed $100 million. OSHA has provided OMB's Office of
Information and Regulatory Affairs with this assessment of the costs,
benefits and alternatives, as required by section 6(a)(3)(C) of E.O.
12866.
OSHA has also determined that the final rule is not a major rule
under the Congressional Review provisions of the Small Business
Regulatory Enforcement Fairness Act. The Regulatory Flexibility Act of
1980 (RFA), as amended in 1996, requires OSHA to determine whether the
Agency's regulatory actions will have a significant impact on a
substantial number of small entities. OSHA's analysis, based on the
analysis in this section of the preamble as well as the later section
``OMB Review Under the Paperwork Reduction Act'' below, indicates that
the final rule will not have significant impacts on a substantial
number of small entities. Indeed, the final standard reduces the costs
and paperwork on all affected entities, including small businesses. The
rule benefits small entities by reducing costs and paperwork.
The final standard deletes or revises a number of provisions in
existing OSHA standards. The reasons for these changes are presented
and discussed in subsections A through N in the Summary and Explanation
of this preamble above. Most of the provisions delete requirements that
the Agency has concluded are unnecessary to protect employee health.
Some of the provisions provide greater flexibility in complying with
requirements or reduce reporting requirements that have proved to have
little if any value in protecting worker health. One provision updates
a reference to a current consensus standard (for first aid kits) and
another corrects a technical error in requirements for evaluating x-
rays for lung cancer.
The final rule is technologically feasible because it reduces or
eliminates current requirements on employers. The Agency considered
regulatory and non-regulatory alternatives to the final rule. Because
every final provision reduces requirements or provides flexibility to
employers by revising current standards, non-regulatory alternatives
are not an appropriate remedy to affect those changes. As discussed in
the Summary and Explanation section above, the Agency considered
alternatives to amending the several ancillary provisions. In most
cases, the Agency chose to revise older ancillary provisions to make
them consistent with standards more recently promulgated by the Agency.
In some cases, the final standard provided more flexibility in the way
information is communicated to employees or the Agency. All of the
final provisions were intended to reduce burden on employers--or
provide flexibility--while maintaining necessary protections for
employee health.
This Final Economic Analysis provides estimates of the cost savings
resulting from the final standard. All of the changes OSHA is making
are expected to reduce employers' costs of compliance. The revised
standard eliminates or reduces requirements for many ``ancillary''
provisions, provides greater flexibility for compliance for others, or
reduces paperwork/reporting requirements. For most of these changes,
economic benefits can be quantified. Where revisions have only provided
greater flexibility for compliance, the Agency has not calculated any
cost savings.
The Agency received several comments in response to the proposal
that asserted that the proposed standards would weaken employee
protection (e.g., AFL-CIO, Ex. 3-27). However, as discussed above in
the Summary and Explanation section, the Agency has concluded that the
final standards do not reduce protection for employees. Amending the
ancillary provisions of older standards will make them consistent with
the industrial hygiene and surveillance practices of more recent
standards.
The Agency received only a few comments on the estimates of cost
savings from the proposed standards. A comment from the International
Chemical Workers Union (Ex. 4-13) asserted that some cost savings were
``minimal'' or that some of the provisions were only a ``minimal burden
on employers,'' but did not offer any corrections to the Agency's
estimates or provide new estimates.
The AN [Acrylonitrile] Group said that the Agency had ``grossly
underestimated the time and cost-burden [savings]'' resulting from the
final standard. As an example, the AN Group cites the costs of
reporting an emergency to OSHA [29 CFR 1910.1045(d)(2)]. OSHA estimates
the cost that will be saved by the final standard as an hour's time
each for a manager and a secretary to prepare the notification of an
emergency. But the AN Group suggests that actual paperwork costs should
include assessing whether an event qualifies as an emergency, including
time for groups of professionals to meet. The Agency has concluded that
its existing regulation does not require such a complex determination.
Although that saving may be real for some employers, it is not required
or necessarily implied by the standard and the Agency is not revising
the cost saving estimate for that provision in the final standard.
Dow Chemical (Ex. 3-13) stated that the Agency's estimates of cost
savings for reduced sampling frequencies was underestimated. According
to Dow, the Agency should include the cost of ``pre-work time'' it
takes for exposure monitoring. Pre-work time would include: identifying
employees at work that day; setting up times for monitoring;
determining the number of samples to be taken; ordering badges (for
vinyl chloride, in this instance); internal analysis of the sampling
results; and written reports. Accordingly, the Agency has revised the
model in ``Provision F'' below, which estimates the cost [savings] for
exposure monitoring for vinyl chloride and acrylonitrile.
The Agency estimates that the final standard will result in total
annual cost savings of $6.8 million (see table below). (The estimates
in this Final Economic Analysis may differ slightly from the estimates
in the Paperwork Reduction Analysis below because of rounding.) Because
this rule provides only cost savings, and no new costs on employers, it
is economically feasible.
[[Page 1129]]
The following paragraphs discuss the methodology of the analysis
and the estimates of cost (saving) for specific provisions.
Estimated Annual Cost Savings Due to the Standards Improvement Project--
Phase 2
------------------------------------------------------------------------
Provisions A through N (as set out in the Summary and Annual cost
Explanation) savings ($)
------------------------------------------------------------------------
A Sec. 1910.42, Temporary Labor Camps................. 0
B Sec. 1910.151(b), Reference to First Aid Supplies in 0
Appendix A.............................................
C Sec. 1910.268, First Aid Supplies Telecom........... 5,618
D Sec. 1910.1003(f)(2) Incident Reports, 13 27,286
Carcinogens............................................
E Sec. 1910.1017(k)(6), Vinyl Chloride................ 0
F:
Sec. 1910.1017(d)(2)(i), Exposure Monitoring, 66,024
Vinyl Chloride.....................................
Sec. 1910.1017(d)(2)(ii), Exposure Monitoring, 17,554
Vinyl Chloride.....................................
Sec. 1910.1044(f)(3)(i) & f(3)(ii), Exposure 0
Monitoring, 1,2-DBCP...............................
Sec. 1910.1045(e)(3)(ii), Exposure Monitoring, 160,455
Acrylonitrile......................................
---------------
F Subtotal...................................... 244,033
G:
Sec. 1915.1001(g)(6)(iii), Alt. Control Methods, 39
Asbestos Removal...................................
Sec. 1926.1101(g)(6)(iii), Alt. Control Methods, 39
Asbestos Removal...................................
---------------
G Subtotal...................................... 78
H:
Sec. 1910.1018(n)(2)(ii)(A), ILO/UC Rating, 0
Inorganic Arsenic..................................
Sec. 1910.1029(j)(2)(ii), ILO/UC Rating, Coke Oven 0
Emissions..........................................
I:
Sec. 1910.1001(1)(7)(i), Signed Opinion, Asbestos. 0
Sec. 1910.1027(1)(10)(i), Signed Opinion, Cadmium 0
Gen. Industry......................................
Sec. 1926.1127(1)(10)(i), Signed Opinion, Cadmium 0
Con. Industry......................................
J:
Sec. 1910.1017(k)(2)(i), Semiannual Medical Exams, 31,064
Vinyl Chloride.....................................
Sec. 1910.1018(n)(3)(ii), Semiannual Medical 157,005
Exams, Inorganic Arsenic...........................
Sec. 1910.1029(j)(3)(ii-iii), Semiannual Medical 621,053
Exams, Coke Oven emissions.........................
---------------
J Subtotal...................................... 809,122
K:
Sec. 1910.1044(d), Notifying OSHA Regarding 0
Regulated Areas, 1,2-DBCP..........................
Sec. 1910.1003(f)(1) Notifying OSHA Regarding 5,457
Regulated Areas, 13 Carcinogens....................
Sec. 1910.1017(n)(1) Notifying OSHA Regarding 671
Regulated Areas, Vinyl Chloride....................
Sec. 1910.1018(d)(1) Notifying OSHA Regarding 117
Regulated Areas, Inorganic Arsenic.................
Sec. 1910.1045(d)(1) Notifying OSHA Regarding 647
Regulated Areas, Acrylonitrile.....................
---------------
K Subtotal...................................... 6,892
L:
Sec. 1910.1017(n)(2) Reporting Emergencies, Vinyl 22,504
Chloride...........................................
Sec. 1910.1045(d)(2) Reporting Emergencies, 2,588
Acrylonitrile......................................
---------------
L Subtotal...................................... 25,091
M:
Sec. 1910.1017(f)(3) Semiannual Updating 7,614
Compliance Plans, Vinyl Chloride...................
Sec. 1910.1018(g)(2)(iv), Semiannual Updating 2,284
Compliance Plans, Inorganic Arsenic................
Sec. 1910.1029(f)(6)(iv), Semiannual Updating 1,332
Compliance Plans, Coke Oven Emissions..............
Sec. 1910.1044(e)(3)(iv), Semiannual Updating 0
Compliance Plans, 1,2-DCBP.........................
Sec. 1910.1045(g)(2)(ii), Semiannual Updating 448
Compliance Plans, Acrylonitrile....................
Sec. 1926.1025(e)(2)(v), Semiannual Updating 4,210,054
Compliance Plans, Lead, Con........................
---------------
M Subtotal...................................... 4,221,732
N:
Sec. 1910.1017(n)(3) Notify Employees of Expos. 2,741
Monitoring Results, Vinyl Chloride.................
Sec. 1910.1018(e)(5)(i) Notify Employees of Expos. 9,393
Monitoring Results, Inorganic Arsenic..............
Sec. 1910.1025(d)(8)(i) Notify Employees of Expos. 891,293
Monitoring Results, Lead, Gen Ind..................
Sec. 1910.1027(d)(5)(i) Notify Employees of Expos. 50,341
Monitoring Results, Cadmium, Gen Ind...............
Sec. 1910.1029(e)(3)(i) Notify Employees of Expos. 25,765
Monitoring Results, Coke Oven......................
Sec. 1910.1043(d)(4)(i) Notify Employees of Expos. 68,102
Monitoring Results, Cotton Dust....................
Sec. 1910.1044(f)(5)(i) Notify Employees of Expos. 0
Monitoring Results, 1,2-DBCP.......................
Sec. 1910.1045(e)(5)(i) Notify Employees of Expos. 8,255
Monitoring Results, Acryonitrile...................
Sec. 1926.62(d)(8)(i) Notify Employees of Expos. 494,063
Monitoring Results, Lead Construction..............
Sec. 1926.1127(d)(5)(i) Notify Employees of Expos. 27,189
Monitoring Results, Cadmium, Con...................
---------------
N Subtotal...................................... 1,454,431
===============
Total....................................... 6,794,283
------------------------------------------------------------------------
[[Page 1130]]
Methodology
This section describes OSHA's development of the annual cost
(savings) for the provisions of the final standard. For the purposes of
this Final Economic Analysis, one-time or intermittent costs have been
annualized using a discount rate of 7 percent, as required by the U.S.
Office of Management and Budget (OMB) [Reference 1], over a specified
period of time using the formula:
a = (i x (1 + i)[bs]n[bs])/((1 +
i)[bs]n[bs]-1),
[``[bs]n[bs]'' in the formula means
raised to the nth power], where
a = annualization factor,
i = discount rate, and
n = economic life of the one-time or intermittent investment
OSHA uses average hourly earnings, including benefits, to represent
the cost of employee time. For the relevant occupational categories,
mean hourly earnings from the Year 2000 National Compensation Survey by
the Bureau of Labor Statistics have been adjusted to reflect the fact
that fringe benefits comprise about 27.1 percent of total employee
compensation in the private sector (Reference 2). (Straight-line hourly
wages and salaries were estimated to be 72.9 percent of total
compensation in 2000. Total compensation including benefits for workers
with hourly wages of $13.41 would be $13.41/.729 = $18.40). The costs
of labor used in this analysis are therefore estimates of total hourly
compensation. These average hourly costs are: $38.92 for managers;
$27.39 for production supervisors; $24.68 for chemical technicians;
$18.40 for production workers; and $17.34 for clerical workers.
Estimates of the number of establishments and the number of
employees affected by the final standard are from a statement in
support of information collection requirements (ICR) or from an
economic analysis. The number of employees affected and their hourly
total wages are used to calculate costs. The changes in existing
standards made by the final Standards Improvement Project-Phase II
pertain to approval of equipment, reporting incidents, exposure
monitoring, laboratory analysis, medical examinations, and employee
notification requirements.
Most of the provisions in the final standard reduce costs related
to a percentage of affected employees in the industry and the number of
labor hours required to monitor a specific activity. Usually, the
frequency of an activity, the number of employees requiring the
activity, and the cost of the activity per employee were used to arrive
at the estimated costs. In some instances, the costs of the activity
were calculated according to the number of affected establishments.
A. Temporary Labor Camps
Paragraph 1910.142(l)(2) requires that the camp superintendent
immediately report the outbreak of certain diseases to the local health
authority ``by telegram or telephone.'' OSHA believes that because
other forms of communication are readily available, the requirement for
notification via ``telegram or telephone'' is unnecessarily
restrictive. Thus, the Agency proposed deleting the requirements
specifying notification by telegram or telephone. The final standard
does not delete the language as proposed, but allows other means, thus
permitting more flexibility in reporting. The Agency has not calculated
the value of such savings.
B. Reference to First Aid Supplies in Appendix A to the Standard on
Medical Services and First Aid
Paragraph 1910.151(b) in the Agency's standard regulating medical
services and first aid supplies, requires employers to ensure that
adequate first aid supplies be readily available in the workplace. OSHA
added a non-mandatory appendix to this standard in a recent rulemaking
(63 FR 33460) to help employers meet this requirement. OSHA proposed to
update this appendix. OSHA has updated the appendix in the final rule.
This revision would not impose any additional cost on employers because
Appendix A is non-mandatory.
C. First Aid Supplies in the Telecommunications Standard
The final rule revises paragraph 1910.268(b)(3) of OSHA's
telecommunications standard that requires an employer to: provide first
aid supplies recommended by a consulting physician; ensure that the
items are readily accessible and housed in weatherproof containers if
used outdoors; and inspect the items at least once a month and replace
expended items. The Agency is revising the paragraph to read,
``Employers must provide employees with readily accessible, adequate,
and appropriate first aid supplies. A non-mandatory example of
appropriate supplies is listed in Appendix A to 29 CFR 1910.151.''
The final rule eliminates the existing requirements in paragraph
1910.268(b)(3) that employers must have certain first aid supplies
approved by a consulting physician before they are used. This
requirement applied only in cases where no infirmary, clinic, or
hospital was in close proximity to the worksite and the employer
intended to treat first-aid injuries at the site. OSHA's analysis here
relies on the assumptions in the Final Economic Analysis in an earlier
rulemaking (63 FR 33461). Based on the ICR to that rulemaking, the
Agency estimates that 10 percent of the establishments would meet these
criteria. OSHA also estimates that 5 minutes of a physician's time,
valued at $100/hr ($8.33 for five minutes), would be required to
approve the contents of the first aid kit at these establishments. The
opportunity cost is estimated by the market price for occupational
physical exams; i.e. at the rate of about $100 per hour.
OSHA assumes that the physician would need to approve the first aid
supplies once every 10 years, considering the possibility of the
development of new kinds of medical supplies and of new hazards at the
worksite. The cost of 5 minutes of a physician's time annualized over a
10-year period at 7 percent interest is $1.19 per year (5/60 x $100 x
annualization factor of 0.1424). The Agency estimates that there were
approximately 47,217 employers in the telecommunications industry in
1998 [County Business Patterns, 1998]. The major sector in the
telecommunications industry is telephone communications, which consists
of establishments that operate both wireline and wireless networks. The
wireline networks use wires and cables to connect customers' premises
to central offices maintained by the telecommunications companies. The
wireless networks on the other hand operate through the transmission of
signals over networks of radio towers and communications satellites
[Career Guide to Industries 2000-01 Edition, Telecommunications (SIC's
481, 482, 489)]. Since first aid supplies have to be approved once
every 10 years, each year approximately 10 percent of the
establishments incur costs to comply with the current requirement.
Thus, current annualized cost is approximately $5,618 ((47,217 x 10
percent) x $1.19). Eliminating the requirement for a physician's
approval of an establishment's first aid kit would eliminate this
annual burden of $5,603.
D. 13 Carcinogens
The final rule deletes paragraph 1910.1003(f)(2) that requires
reporting of releases of a regulated carcinogen to the nearest OSHA
Area Director. Deleting this provision results in a savings in burden
hours and associated costs.
[[Page 1131]]
Based on the ICR, the Agency estimates that reportable incidents
occur once per year at each facility and that about 97 employers fall
under OSHA jurisdiction and will be affected by the rule. A manager and
a clerical worker will each take 5 hours to collect information and to
report a release of a regulated carcinogen to the nearest OSHA Area
Director, for a total of 10 hours per employer. Thus, 970 burden hours
are attributed to this provision (485 burden hours each by a manager
and a clerk), at an annual cost of $27,286. Annual cost savings are
obtained by multiplying 485 burden hours by each wage rate and adding
the products [485 hours x ($38.92 + $17.34 per hour)]. By eliminating
the requirement to report releases of a regulated carcinogen to the
nearest OSHA Area Director, OSHA will eliminate annual cost burdens to
employers of $27,286.
E. Vinyl Chloride
Paragraph 1910.1017(k)(6) of the vinyl chloride standard specifies
that laboratories licensed by the U.S. Public Health Service (PHS)
under 42 CFR part 74 (``Clinical laboratories'') must analyze
biological samples collected during medical examinations. However, 42
CFR part 74 is outdated, and the PHS now addresses laboratory licensing
requirements under 42 CFR part 493 (``Laboratory requirements''). The
Agency proposed to delete the reference to 42 CFR part 74 from
paragraph (k)(6) of this standard. However, the Agency is replacing
this outdated requirement with a requirement that employers use
accredited laboratories for the medical tests required under the vinyl
chloride standard. This change should provide employers with greater
choice in laboratories while ensuring that qualified laboratories are
used for required medical tests. The Agency had made no estimates of
cost savings for this revision in the existing standards.
F. Monthly and Quarterly Exposure Monitoring
Several of the Agency's older standards retain provisions that
require employers to monitor employee exposures either monthly or
quarterly, depending on the concentration of the toxic substance found
in the workplace. These include: paragraphs 1910.1017(d)(2)(i) and
(d)(2)(ii) of the vinyl chloride standard, requiring employers to
conduct exposure monitoring each month if employees' exposure are above
the permissible exposure limit (PEL), and quarterly if employee
exposures are above the action level (AL); paragraphs
1910.1044(f)(3)(i) and (f)(3)(ii) of the 1,2-dibromo-3-chloropropane
(DBCP) standard, requiring exposure monitoring quarterly if employee
exposures are below the PEL, and monthly if employee exposures exceed
the PEL; and paragraphs 1910.1045(e)(3)(ii) and (e)(3)(iii) of the
acrylonitrile standard, requiring quarterly monitoring for employees
exposed at or above the AL, but below the PEL, and each month for
employees exposed above the PEL.
For substance-specific standards published more recently by the
Agency subsequent to these three standards, the most frequent exposure
monitoring requirement is semiannually if employee exposures are at or
above the AL, and quarterly if they are above the PEL. OSHA is amending
the exposure monitoring requirements in the older standards because
they are inconsistent with the exposure monitoring protocols
established by OSHA in its later substance-specific standards. OSHA
believes consistency among standards will improve compliance levels
thereby improving worker protection. OSHA is requiring that employers
conduct exposure monitoring quarterly if the results of initial
exposure monitoring show that the employee exposures are above the PEL,
and semiannually if these results are at or above the AL.
OSHA has concluded that revision of paragraphs 1910.1044(f)(3)(i)
and (f)(3)(ii) of the standard regulating DBCP, would have no effect on
cost or burden hours since no U.S. employers currently produce DBCP-
based end products.
For purposes of the below analysis, the Agency assumes that
exposure monitoring is done with an active sampling method; that is,
with typical industrial hygiene sampling pumps and collection tubes.
Passive vapor badges are available for the two substances in question,
and the PEA referred to sampling with them, but the Agency has not been
able to ascertain that passive monitoring meets the standards'
requirements for accuracy for single samples. To be conservative--to
not underestimate the potential burden--the Agency assumes sampling
with a method whose accuracy is known. This economic analysis relies on
the following assumptions of employee exposure to vinyl chloride and
acrylonitrile: the Agency estimates, based on OSHA sampling data in its
IMIS database, that 1 percent of all employees are exposed between the
AL and the permissible exposure level (PEL), and another 1 percent are
exposed above the PEL; sampling of employee exposures is conducted with
active sampling methods, i.e. personal air pumps and cassettes with
appropriate collection media for the substance; and laboratory analysis
of collected samples is performed by a commercial laboratory.
In its Preliminary Economic Analysis (PEA), the Agency estimated
that a supervisor, who earns $27.39 per hour, will spend 5 minutes to
administer, and 5 minutes to collect, each vapor badge, for a total of
0.17 hour; and a clerical worker, earning $17.34 per hour, will spend 5
minutes (.08 hour) to maintain each record of a monitoring event. In a
written comment on this rulemaking, Dow Chemical (Ex. 3-13) pointed out
that there are significant other activities needed to perform exposure
monitoring besides these identified by the Agency. In addition, the
Agency, in concurrence with the Office of Management and Budget,
currently includes all costs of exposure monitoring as paperwork costs,
viewing the entire activity as a ``collection of information''--not
just the function of recordkeeping. The existing paperwork burden is
based only on gathering the information to form a permanent record, as
noted at the beginning of this paragraph. In contrast, the new estimate
here includes an average of 1 hour for a technician to collect,
process, and record sampling data.
The final rule revises paragraph 1910.1017(d)(2)(i) of the vinyl
chloride standard to require quarterly rather than monthly exposure
monitoring if past employee exposures have been above the PEL. In the
PEA, the Agency estimated that there are 131 employees who are
currently monitored monthly who will now be monitored quarterly. The
Agency estimates that a technician spends, on average, 60 minutes for
each employee sampled, which includes planning activities, affixing
pumps, gathering sample cassettes, sending tubes or cassettes for
laboratory analysis, and recording the results into a permanent record.
The Agency doesn't believe there is any significant loss of employee
time from production activities. Thus, for each employee sampled, the
cost of the collection media and analysis and technician's time is
about $67 ($43 for the collection media and lab analysis, about $24 in
technician's time). When an estimated 131 employees are sampled monthly
the annual cost is $105,324. When sampled quarterly the estimated
annual cost is $39,300. The final standard will reduce annual employer
costs by $66,024.
The final rule also revises paragraph 1910.1017(d)(2)(ii) of the
vinyl chloride standard to require semiannual rather than quarterly
exposure monitoring if exposure is at or above the AL. In the
[[Page 1132]]
PEA the Agency estimated that there are 131 employees who must be
monitored twice a year rather than 4 times. Under the existing
standard, using the same unit cost and time estimates from the
paragraph above, employers currently expend an estimated $31,618 on
quarterly exposure monitoring that would be reduced by one-half to
$17,554 under the final standard. Cost savings would also be $17,554.
The final paragraphs 1910.1045(e)(3)(ii) and (e)(3)(iii) of the
acrylonitrile standard parallel the changes in exposure monitoring
requirements to vinyl chloride, above. The final standard requires
semiannual monitoring if employee exposures were at or above the AL,
and quarterly monitoring if these exposures were above the PEL. The
existing standard requires monthly monitoring if above the PEL and
quarterly monitoring if above the AL. In the PEA, the Agency estimated
that there are 314 employees who require monitoring and that each
exposure monitoring sample represents the exposures of 2 employees
(i.e. on average, there are 2 employees involved in the same or similar
tasks). These estimates are based on the Supporting Statement for the
Information Collection Requirements of the Acrylonitrile (AN) Standard
(29 CFR 1910.1045), OMB 1218-0126 (2000), p. 16. The Agency
estimates that a technician (wage $24.68) spends, on average, 60
minutes for each employee sampled, which includes planning activities,
affixing pumps and cassettes, gathering and sending cassettes for
analysis, and recording the results into a permanent record. The Agency
doesn't believe there is any significant loss of employee time from
production activities. Tubes or cassettes and laboratory analysis cost
$64 each. (The Agency neglected to include the costs of collection
media and laboratory analysis for acrylonitrile in the PEA.) Thus, for
each employee sampled, the cost is estimated to be about $88 (tube and
laboratory analysis $64 and technician's wage $24.68). When one-half of
the estimated 314 employees are sampled monthly, the cost is $165,792;
when sampled quarterly the estimated cost is $55,264. The final
standard will thus reduce employer costs by $110,528 by requiring
quarterly rather than monthly sampling where employee exposures are
over the PEL.
Where the final standard reduces exposure monitoring from quarterly
to semi-annually for employees above the AL but below the PEL, the
Agency estimates that the current burden for 563 employees to be
sampled is $99,854 and will be reduced to $49,927, thereby reducing the
current burden by $49,927. The total reduction in burden due to the
final acrylonitrile standard is $160,455.
G. Alternative Control Methods for Class I Asbestos Removal
OSHA is deleting provisions in OSHA's asbestos standards for
shipyard employment and for construction (paragraphs
1915.1001(g)(6)(iii) and 1926.1101(g)(6)(iii), respectively) that
require that employers submit, to the Directorate of Technical Support,
alternative control methods used to perform Class I asbestos work. OSHA
has concluded that this requirement is unnecessary because it has not
been used and that both the private sector and OSHA have substantial
expertise in this area. Current OSHA regulatory policy requires that
paperwork provisions such as this requirement, demonstrate a benefit to
employees or serve some other useful regulatory purpose.
To submit alternative control methods to the Directorate of
Technical Support, OSHA estimates would require 1 hour and cost $39.
These estimates are based on the assumption that OSHA would receive 7
notifications from employers who choose new or modified control
technology to reduce exposure in Class I asbestos for shipyards. A
manager, earning $38.92 per hour, would spend on average 10 minutes to
develop and transmit the information to the Agency for each employer.
Thus removing this requirement would result in annual cost savings of
$39.
For the construction asbestos standard, OSHA again assumes the
Agency would receive 7 notifications from employers who choose new or
modified control technology to reduce exposures in Class I asbestos
work. OSHA estimates a manager, earning $38.92 an hour, would need 10
minutes to develop and transmit the information to OSHA. Thus, 1 burden
hour would be spent, at a cost of $39, to submit alternative method
information to OSHA.
H. Evaluating Chest X-rays Using the ILO U/C Rating
OSHA is amending paragraph 1910.1018(n)(2)(ii)(A) of the inorganic
arsenic standard and paragraph 1910.1029(j)(2)(ii) of the coke oven
emissions standard. These provisions require that employees' chest x-
rays receive an International Labor Office UICC/Cincinnati (ILO U/C)
rating. Subsequent to the promulgation of these provisions, the Agency
received information from two physicians that the ILO U/C rating is not
the most appropriate standard for evaluating chest x-rays for lung
cancer (discussed above). Based on this information, OSHA believes that
the ILO U/C rating is not a suitable method to use in evaluating chest
x-rays for lung cancer. Therefore, the Agency is removing the ILO U/C
rating requirements specified in the inorganic arsenic and coke oven
emissions standards, thereby permitting the examining physician to
determine the most effective procedure for evaluating these chest x-
rays. Deleting the ILO/UC rating would provide cost savings since it
allows the examining physician to determine the most effective
procedure for evaluating chest x-rays. However, the Agency has not
calculated the value of such savings.
I. Signed Medical Opinions
Paragraph 1910.1001(l)(7)(i) of the asbestos standard and
paragraphs (l)(10)(i) of the cadmium standard for general industry, 29
CFR 1910.1027, and for construction, 29 CFR 1926.1127, require that the
examining physician sign the written medical opinion provided as part
of the medical surveillance requirements of these standards. The
preamble to the cadmium standards states that ``the requirement that
the physician sign the opinion is to ensure that the information that
is given to the employer has been seen and read by the physician and
that the physician has personally determined whether the employee may
continue to work in cadmium-exposed jobs'' (57 FR 42366). No other
substance-specific standard promulgated by OSHA requires a signed
medical opinion.
The Agency believes that the requirement to sign a medical opinion
written by a physician is unnecessary, precludes electronic
transmission of the opinion from the physician to the employer, and
provides no benefit to employees. Accordingly, OSHA is removing this
requirement from these paragraphs.
Removal of the requirement that a physician sign the written
medical opinion provided as part of the medical surveillance
requirement of these standards provides more flexibility. OSHA has not
estimated the cost savings.
J. Semiannual Medical Examinations
The Agency's final standard replaces a requirement for semiannual
medical exams in three standards (vinyl chloride, arsenic, and coke
ovens) with a requirement for an annual medical examination. This
analysis presents the burden hours and costs associated with the
current provisions and the estimates of cost savings of the final
standard.
[[Page 1133]]
The final standard's revision of a semiannual requirement for
medical examinations to annual one would generate annual cost savings
from several sources: less employee time; fewer medical examinations;
and less clerical time providing the physicians' opinions to the
affected employees and maintaining medical records.
Based on estimates in the vinyl chloride ICR of the number of
facilities, the number of employees per facility, and the distribution
of employee exposures, OSHA estimates that 890 burden hours are
incurred for medical surveillance under the semiannual examination
requirement, with 183 employees monitored twice a year for 2 hours and
79 employees once a year for 2 hours at a cost of $16,376 (890 hours x
$18.40, the wage rate of a production worker). With annual
examinations, OSHA estimates that 324 burden hours would be required,
as 262 employees would be monitored only once a year, taking 2 hours.
The cost would be $9,642 (524 hours x $18.40). Annual savings of $6,734
would result.
The revision from semiannual to annual medical examinations would
result in annual savings of $23,790 in the cost of the medical
examinations themselves, at $130 per examination, as 183 employees
would have only one, as opposed to two, medical examinations per year.
The change in frequency from semiannual to annual medical examinations
also reduces the number of hours of clerical time required from 76 to
45, resulting in annual savings of $539.
When annual savings are summed for the cost of employees' time
($6,734), medical examinations ($23,790), and clerical costs of medical
records ($539), the revision of the vinyl chloride standard generates
annual savings of $31,064.
The final rule revises the semiannual medical examination to an
annual requirement in the arsenic standard, paragraph
1910.1018(n)(3)(ii), for employees who are 45 years old or older with
10 or more years of exposure to inorganic arsenic above the AL. OSHA
assumes each examination would take one hour and forty minutes and that
50 percent of the 1,900 employees who now would require two
examinations per year would undergo only one. Requiring only one annual
medical examination would save about 1,587 hours in employee time away
from the job. Thus, replacing semiannual medical examinations with
annual medical examinations would result in annual savings of about
1,662 burden hours and $29,192 (about 1,587 burden hours at $18.40/per
hour).
The change in frequency from semiannual to annual contributes
$123,500 in annual cost savings for the medical examinations
themselves, at $130 per exam. Semiannual medical examinations cost
$413,920 while annual medical examinations would cost an estimated
$284,570. In addition, the clerical costs of medical records would drop
by $4,313 (from $13,803 to $9,489). Total annual savings resulting from
revision of the inorganic arsenic standard would be $157,005 ($123,500
+ $29,192 + $4,313) and would consist of savings in costs of employees'
time, medical examinations, and clerical time for medical records.
The final rule revises the semiannual medical examinations
requirement to annual medical examinations in the coke oven standard,
paragraph 1910.1029(j)(3)(i), for employees who are 45 years of age or
older with five or more years of exposure in regulated areas. Employees
will receive annual urinary cytology examinations as part of the annual
examination. The final standard would generate annual cost savings in
employees' time, medical examinations, and physicians' medical
opinions. Based on the ICR, medical examinations currently require
14,903 burden hours as 84 percent of the 4,600 employees who work in
regulated areas require semiannual medical examinations, 16 percent
require an annual medical examination, and 10 percent require an
additional medical examination per year. Each examination requires an
employee to be away from his or her job for 1 hour and 40 minutes, at
$18.40 per hour, for a total annual cost of $274,217. Under the final
standard, annual medical examinations would require 8,450 burden hours
at a cost of $155,484. Cost savings in employees' time would thus be
$118,733.
At a cost of $130 per medical examination and $50 for urinary
cytology examinations per employee, replacing semiannual medical
examinations (estimated cost of $1,425,384) with annual medical
examinations (estimated cost of $933,064) would result in annual cost
savings of $502,320. There would be no savings in clerical costs of
medical records. OSHA estimates that revision of the coke oven standard
would result in annual cost savings of $621,053.
K. Notification of Regulated Areas
The final rule deletes the ``13 carcinogens'' provision, paragraph
1910.1003(f)(1), that requires employers to notify the nearest OSHA
Area Director of newly established regulated areas. Deleting this
provision results in savings in burden hours and associated costs. As
in the ICR, OSHA assumes that changes in operations requiring a report
to the nearest OSHA Area Director currently occur once a year per
facility and require 1 hour each of managerial and clerical time, a
total of 2 hours per employer, to report the necessary information.
OSHA estimates that 97 employers would be affected. Burden hours are
thus estimated to total 194 hours to report the information. The cost
is estimated to be $5,457 (97 employers x ($38.92 x 1 hour + $17.34 x 1
hour)), where $38.92 is the wage rate of a manager and $17.34 is the
wage rate of a clerical worker. Thus, savings due to deleting this
provision are estimated to be 194 burden hours and $5,457.
The final rule would eliminate the vinyl chloride provision,
paragraph 1910.1017(n)(1), that requires employers to notify the
nearest OSHA Area Director of the establishment of regulated areas.
Based on the ICR, the Agency estimates that 13 new regulated areas are
established each year and that a manager, at an hourly rate of $38.92,
takes 15 minutes (0.25 hour) to notify the Area Director of the address
of the establishment and the number of employees in a new regulated
area. Thus, for new regulated areas, OSHA estimates a current burden of
3.25 hours at a cost of $126.
For existing facilities, OSHA assumes that each employer
experiences one change in a regulated area each year, and that a
supervisor requires 10 minutes (0.17 hour) to inform the Area Director
of this change. OSHA estimates that there are 80 affected facilities,
resulting in 14 burden hours and a cost of $545 (14 burden hours x
$38.92). Total burden of the current rules, for new and existing
facilities, is 17 hours, costing $671.
The final rule deletes the requirement in the inorganic arsenic
standard, paragraph 1910.1018(d)(1), that employers notify the nearest
OSHA Area Director of the establishment of regulated areas. An OSHA
report titled ``Sampling Activity by Substance'' determined that 14.1
percent of establishments had inorganic arsenic exposures that exceeded
the PEL. Based on the Agency's estimate that 42 facilities are covered
by the standard, six facilities would have employees with inorganic
arsenic exposures that exceed the PEL (14.1% x 42 = 6). OSHA assumes
that these six employers have already notified the Agency about
establishing regulated areas; therefore, only significant changes to
existing regulated areas or establishments of new regulated areas must
be reported to OSHA. The Agency assumes that one
[[Page 1134]]
significant change occurs in, or a new regulated area is added to, each
of these facilities annually, and that a manager, earning $38.92 an
hour, will take 30 minutes (0.5 hours) to notify the Agency of the
significant change or addition. Thus, OSHA estimates it would require
three burden hours for six employers to notify the Area Director about
establishment of regulated areas. Estimated cost would be $117 (three
burden hours x $38.92 an hour). By deleting this provision, savings of
three burden hours and $117 would be realized.
The final rule deletes the provision in the acrylonitrile standard,
paragraph 1910.1045(d)(1), that requires employers to notify the
nearest OSHA Area Director of the establishment of regulated areas.
Since there are no new establishments, OSHA assumes that employers will
not establish new regulated areas during this clearance period, and
estimates that each of the 23 facilities will make 1 significant change
annually in a regulated area. The Agency estimates that reporting a
significant change to the nearest OSHA Area Office currently takes a
manager 0.5 hour and a clerical worker 0.5 hour each, for a total of 1
hour for each of the 23 facilities. Thus, it costs $647 for the 23
facilities to report a significant change, at $38.92 an hour for a
manager and $17.34 an hour for a clerical. Savings due to deleting this
provision would thus be 23 burden hours and $647.
L. Reporting Emergencies and Incidents
The final rule deletes the provision in the vinyl chloride
standard, paragraph 1910.1017(n)(2), that requires employers to report
emergencies and available facts regarding each emergency to the nearest
OSHA Area Director. On request of the Area Director, the employer must
submit additional information in writing describing the nature and
extent of employee exposures and measures taken to prevent similar
emergencies in the future. OSHA estimates that each employer
experiences one reportable emergency per year and that a manager and a
secretary will each spend five hours, for a total of 10 hours,
reporting the emergency. OSHA assumes there are 80 affected employers;
a manager and a secretary would each spend 5 hours to report an
emergency for a total of 800 burden hours. The cost to the employers
would be $22,504 (80 employees x ($38.92 x 5 hours + $17.34 x 5
hours)), since a manager earns $38.92 an hour and a secretary earns
$17.34 an hour. Hence, there would be savings of 800 burden hours and
$22,504 by deleting this provision.
The final rule deletes the provision in the acrylonitrile standard,
paragraph 1910.1045(d)(2), that requires employers to report an
emergency to OSHA within 72 hours and to provide additional information
in writing to the nearest OSHA Area Office if requested to do so. OSHA
estimates that 2 emergencies will occur in each facility annually, and
that a professional and a secretary each require 1 hour for a total of
2 hours to compile and report the necessary information for each
emergency. OSHA estimates 92 burden hours would be attributed to this
provision because 23 facilities would report two emergencies per year
and a manager and a secretary would each spend 1 hour to compile and
report the necessary information. The cost of this provision would be
$2,588, since a manager earns $38.92 per hour and a secretary earns
$17.34 an hour. Savings due to deleting this requirement would be 92
burden hours, worth $2,588.
M. Semiannual Updating of Compliance Plans
The Agency's substance-specific standards typically require
employers to develop compliance plans to meet the exposure-control
objectives of the standard. Most of these standards specify that
employers must update these plans at least annually, and OSHA believes
that annual updating is sufficient to ensure the continued
effectiveness of the plans. However, several older substance-specific
standards promulgated by the Agency require semiannual updating,
including: vinyl chloride, paragraph 1910.1017(f)(3); inorganic
arsenic, paragraph 1910.1018(g)(2)(iv); lead, paragraph
1910.1025(e)(3)(iv); coke oven emissions, paragraph
1910.1029(f)(6)(iv); 1,2-dibromo-3-chloropropane (DBCP), paragraph
1910.1044(g)(2)(ii); acrylonitrile, paragraph 1910.1045(g)(2)(v); and
lead in the construction industry, paragraph 1926.62(e)(2)(v).
OSHA has concluded that for those older standards with a high
degree of compliance, updating compliance plans semi-annually does not
increase worker protection. Therefore, the Agency is revising its older
substance-specific standards to require annual, instead of semiannual,
updating of compliance plans. OSHA believes that making this
requirement consistent across its standards, will further improve
employer compliance. Accordingly, the final standard eliminates a
significant paperwork requirement without reducing employee protection.
The following discussion estimates the cost savings of this amendment.
The final rule revises the vinyl chloride standard to require that
employers update compliance plans at least annually, instead of
semiannually. As in the ICR, the Agency estimates that semiannual
updates require 480 burden hours (20 facilities, each needing eight
hours from a manager and four hours from a secretary) to update the
compliance plans, at a cost of $15,229. On average, a manager earns
$38.92 an hour while a secretary earns $17.34 an hour. Annual updates
on the other hand, would require 240 burden hours at a cost of $7,614.
Thus, revising the standard to allow for annual updates of compliance
plans instead of semiannual updates would result in savings of $7,614.
Modifying the inorganic arsenic standard, 29 CFR 1910.1018, to
require that employers update compliance plans at least annually
likewise would reduce burden hours and cost. OSHA estimates there are
six employers affected by this standard and that a manager and a
secretary need 8 hours and 4 hours, respectively, to update the
compliance plans. With semiannual updates, the standard would require
144 burden hours at a cost of $4,569. Revising the standard to require
annual compliance updates would entail 72 burden hours at a cost of
$2,284, thereby resulting in savings of $2,284.
The final revision of the lead standard for general industry,
paragraph 1910.1025(e)(3)(iv), would reduce the frequency for updating
the compliance plan from semiannually to annually for areas with
exposures over the PEL. OSHA's information on areas over the PEL in
general industry is relatively old and the standard is almost 25 years
old. Therefore, a substantial amount of time has gone by to achieve
exposures below the PEL. Accordingly, OSHA has not assigned a cost
saving for this provision at this time. Instead, OSHA requested
comments on the approximate number of general industry lead facilities
that still have areas over the PEL, but received none in the record.
OSHA's estimate of the cost savings from this provision remains
unchanged from the PEA.
Revision of the coke oven standard, paragraph 1910.1029(f)(6)(iv),
would allow employers to update their compliance plans annually instead
of semiannually. OSHA estimates that each of the 14 plants takes 3
hours to review and update its compliance plan semiannually for a total
of 84 burden hours. OSHA estimates that a manager earning $32.92 takes
2 hours to update the compliance semiannually; and that a clerk earning
$17.34 will take 1 hour semiannually to update the plans.
[[Page 1135]]
Therefore the cost for the 14 plants to update their compliance plans
semiannually is $2,665. Revising semiannual updating to annual the 14
plants would take 42 hours annually costing a total of $1,333. The
burden hour savings would be 42 hours and cost saving would be $1,332.
The final revision of the 1,2-dibromo-3-chloropropane (DBCP)
standard, 29 CFR 1910.1044, would have no cost or burden hours to
employers since no U.S. employers currently produce DBCP-based end
products.
Revision of the acrylonitrile standard, paragraph
1910.1045(g)(2)(v), would require that employers update compliance
plans annually instead of semiannually. OSHA assumes that a manager
earning $38.92 an hour would devote 0.5 hour to update a compliance
plan at each facility. With semiannual updating of compliance plans,
employers would require 23 burden hours at a cost of $895 (23 hours x
$38.92). Revision of the standard to require annual updates would lower
this to 11.5 burden hours at a cost of $448 (11.5 x $38.92). Savings
due to this revision would thus be $448.
The revision of the lead in construction standard, paragraph
1926.62(e)(2)(v), requires employers to update compliance plans
annually instead of semiannually. Based on the Lead in Construction
Paperwork Package, which in turn drew upon the Economic Analysis for
that standard, OSHA estimates the standard now requires 216,344
employer burden hours at a cost of $8,420,108 (216,344 hours x $38.92)
to update compliance plans semiannually. The Agency estimates that the
revision of the standard to require annual updates would simply cut the
burden in half, to 108,172 hours at a cost of $4,210,054 (108,172 hours
x $38.92). Thus, the savings due to changing from semiannual to annual
compliance updates would be $4,209,657. Although the burden reduction
from this revised standard is the largest among the standards being
revised in this rulemaking, the Agency has consistently applied simple
adjustments to its current paperwork model of burden on employers for
each of its calculations. The Agency did not receive any comment about
either the number of affected employers or unit costs for estimating
the burden. The Agency's final estimate of the reduction in paperwork
burden for this standard is thus unchanged from the proposal.
N. Notifying Employees of Their Exposure Monitoring Results
Many of OSHA's substance-specific standards require employers to
notify employees of their exposure monitoring results. However, the
standards specify several different methods for providing this notice.
The standards state that an employer must provide such notification to
employees individually in writing or by posting the results in a
readily accessible location, or both. In addition, the maximum period
for notifying employees of their exposure monitoring results after the
employer receives them varies across the standards. These periods range
from ``as soon as possible'' to 20 working days after receipt of the
monitoring results.
A review of the preambles to each of the above standards indicates
that the final choice of notification method and maximum period for
notification was a matter of convenience; none of the preambles
provided objective evidence that the final requirements were the only
effective or even most effective in protecting employees. The record
developed during this rulemaking supports this view. OSHA has concluded
that making the requirements consistent among the standards would
reduce confusion and facilitate compliance without diminishing employee
protection. As a result, the Agency is revising the standards by
requiring employers to provide employees with their exposure monitoring
results individually in writing or by posting the employees' results in
a readily accessible location. Although the posting option would reduce
employers' paperwork burden to some extent, they must still maintain
individual exposure monitoring records for employees under Sec. Sec.
1910.1020, 1915.1020, and 1926.33--OSHA's records-access standards for
general industry, shipyard employment, and construction, respectively.
Thus, employees could still get subsequent access to their exposure
monitoring results.
OSHA proposed to standardize the period of time for notifying
employees of their exposure monitoring results after the employer
receives them across 20 pertinent standards. Currently, the
notification period ranges from ``as soon as possible'' to 20 working
days after receipt of the monitoring results. The Agency proposed to
standardize the notification period to 15 days for general industry and
5 days for one shipyard and several construction standards on which
OSHA made specific findings. Making these requirements consistent will
reduce confusion and facilitate compliance with the provisions.
However, it will not result in any significant cost savings.
OSHA assumes that the employers will choose to post the employees'
results in a readily accessible location for all the standards that
give the option of providing the results individually in writing or by
posting. This would generate savings in burden hours and costs.
The final rule would revise the vinyl chloride standard, paragraph
1910.1017(n)(3), to require employers to provide employees with their
exposure monitoring results individually in writing or by posting the
employees' results in a readily accessible location. Based on the ICR,
under the present standard for exposure above the AL, but below the
PEL, 42 burden hours are required at a cost of $727 as 131 employees
would be notified quarterly by a secretary earning $17.34 an hour who
would spend 5 minutes per notification. For exposures above the PEL,
126 burden hours at a cost of $2,181 are required, as the same number
of employees would be notified monthly by the secretary. Additional
monitoring involves another 6 burden hours, at a cost of $111. Thus,
the present vinyl chloride standard requires a total of 174 burden
hours and a cost of $3,019.
With the revised standard, for exposure above the AL but below the
PEL, 3 burden hours at a cost of $55 would be incurred as a secretary
of each of 20 employers would post monitoring results semiannually at a
readily accessible location. For exposure above the PEL, a secretary
would quarterly post monitoring results at 20 facilities in a readily
accessible location, requiring 6 burden hours at a cost of $111.
Additional monitoring would require 6 burden hours at a cost of $111.
Thus, the revised standard would require 15 burden hours at a cost of
$277. Cost savings would amount to $2,741.
The final rule revises the inorganic arsenic standard, paragraph
1910.1018(e)(5)(i), to require employers to provide employees with
their exposure monitoring results individually in writing or by posting
the employees' results in a readily accessible location. OSHA assumes
the employers would prefer to post the employees' results in a readily
accessible location as that would be less costly.
The present inorganic arsenic standard requires employers to notify
employees individually in writing of their exposure monitoring results.
As in the Inorganic Arsenic Paperwork Package, OSHA estimates that
7,400 employees are exposed to inorganic arsenic, 14.1 percent or 1,043
of these are exposed above the PEL and will be monitored quarterly,
12.8 percent or 947
[[Page 1136]]
of these employees are exposed above the AL but below the PEL and will
receive semiannual monitoring, while the employers must provide 10
percent or 740 of these employees with the results obtained to meet the
additional monitoring requirement. OSHA estimates that a secretary,
earning $17.34 per hour, will take 5 minutes (.08 hour) to prepare each
notification. Thus, 545 burden hours estimated to cost $9,444 are
attributed to the present inorganic arsenic standard.
With the revised standard, employers would be allowed to post
monitoring results in a readily accessible location, which is cheaper
than writing to employees individually. For estimating the burden, the
assumptions would remain the same as under the present standard except
employers or facilities would post monitoring results. OSHA estimates
there are 42 facilities: 14.1 percent or 6 of these have employees
exposed above the PEL and will be monitored quarterly; 12.8 percent or
5 of these have employees that are exposed above the AL but below the
PEL and will be monitored semiannually, and an additional 10 percent or
4 facilities will be monitored yearly. Thus, the revised standard would
require 3 burden hours at a cost of $51. Cost savings due to changing
from writing employees individually to employers posting monitoring
results in a readily accessible location would amount to $9,393.
The final rule revises the lead standard for general industry,
paragraph 1910.1025(d)(8)(i), to require employers to provide employees
with their exposure monitoring results individually in writing or by
posting the employees' results in a readily accessible location. OSHA
assumes the employers would post the employees' results in a readily
accessible location.
Currently, monitoring is required initially to determine if any
employees are exposed to lead at or above the action level, and every 6
months if employees are exposed above the AL but below the PEL and
quarterly if employees are exposed to lead above the PEL. OSHA assumes
zero burden hours for quarterly monitoring based on the assumption in
the paperwork burden analysis that no industry sectors have working
conditions in which employees are being exposed above the PEL. The
Agency has estimated that about 11,508 employees would receive initial
monitoring and 377,859 employees may be exposed to lead at levels
between the AL and the PEL, which would require periodic monitoring at
6-month intervals. OSHA estimates that a secretary earning $17.34 an
hour will require 5 minutes (.08 hour) to prepare each of 767,226
employee notifications (11,508 initial notifications and 377,859
employees x 2 semiannual notifications).
The paperwork burden for employee notification of monitoring
results under the existing standard is as follows: 11,508 employees are
notified once annually of initial monitoring results and 377,589
employees receive results twice a year. Notifying employees of 767,226
sampling results requires 0.08 hours each for a total of 61,378 hours,
which, at an hourly secretarial wage of $17.34, costs $1,064,296.
Employee notification under the revised standard will reduce the
paperwork burden considerably: 62,357 employers will post sampling
results twice a year, taking 0.08 hours for each, or 9,977 burden
hours, which will cost $173,001 at the same secretarial wage. Cost
savings would amount to 51,401 burden hours, or $891,293.
The final rule revises the cadmium standard for general industry,
paragraph 1910.1027(d)(5)(i), to require employers to provide employees
with their exposure monitoring results individually in writing or by
posting the employees' results in a readily accessible location. As
posting the monitoring results is cheaper than individually writing
employees, OSHA assumes the employers would prefer to post the
monitoring results.
The present standard requires employers to notify employees
individually in writing and to post in a centralized location their
exposure monitoring results. As in the Cadmium General Industry
Paperwork Package, the Agency estimates that 71,306 employees may need
periodic monitoring when exposed to cadmium above the AL. Under the
existing standard, OSHA estimates that a secretary, earning $17.34 per
hour, will take 5 minutes (.08 hour) semiannually to individually
inform the employees in writing of exposure monitoring results and to
also post a copy of the results in a centralized location. The Agency
also estimates that 143 additional samples will be taken in 143 plants
when raw materials, process, personnel, or work practices change. Thus,
under the existing standard, 11,420 burden hours would be required at a
cost of $198,030 as 71,306 employees are notified individually in
writing and 143 plants post notices of the employees' exposure
monitoring results in centralized locations.
Under the final standard, 8,517 burden hours at a cost of $147,685
would be required (secretaries at each of the 53,161 employers, and for
posting 143 additional samples spending five minutes, at $17.34 per
hour, to post monitoring results). Cost savings due to changing from
individually writing employees and posting notices in centralized
location to employers posting notices in a readily accessible location
would amount to $50,341.
The final rule revises the coke oven emissions standard, paragraph
1910.1029(e)(3)(i), to require employers to provide employees with
their monitoring results individually in writing or by posting the
employees' results in a readily accessible location. OSHA assumes the
employees would prefer to post the employees' results in a readily
accessible location.
The present standard requires employers to notify employees
individually in writing of their exposure monitoring results. As in the
ICR, the Agency estimates that 4,600 employees receive exposure
measurements (i.e., are ``covered employees'' because they work in
regulated areas). These measurements include 18,400 quarterly
measurements (4,600 employees x 4 measurements) and 230 resamplings (5%
of 4,600 employees), for a total of 18,630 samples. The Agency also
assumes that a secretary, at a wage rate of $17.34 per hour, will take
5 minutes (.08 hour) to notify each employee of his or her sampling
results. Thus, 1,490 burden hours would be required at a cost of
$25,844 as 4,830 employees would be notified individually in writing of
their exposure monitoring results.
With the final standard, 5 burden hours at a cost of $79 would be
attributed to secretaries, who earn $17.34 per hour, at each of the 14
employers and would spend 5 minutes each to post monitoring results at
a readily accessible location. Cost savings would amount to $25,765.
The final rule revises the cotton dust standard, paragraph
1910.1043(d)(4)(i), to require employers to provide employees with
their exposure monitoring results individually in writing or by posting
the employees' results in a readily accessible location. OSHA assumes
the employers would prefer to post the employees' results in a readily
accessible location.
OSHA estimated the numbers of exposed employees and the number of
facilities in the industry by utilizing data from Employment and
Earnings and County Business Patterns. The Agency estimates that 49,628
employees would be notified in writing of their exposure monitoring
results. OSHA estimates that a secretary, earning $17.34 per hour, will
take 5 minutes (.08 hour) to prepare each notification. Thus, 3,970
burden hours are required at a
[[Page 1137]]
cost of $68,844 as 53,938 employees are notified individually in
writing of their exposure monitoring results.
Under the final standard, 43 burden hours at a cost of $742 would
be required (a secretary at each of the 535 plants, earning $17.34 per
hour, would spend 5 minutes (.08 hour) to post monitoring results).
Cost savings would amount to $68,102.
The final rule would revise the 1,2-dibro-3-chloropropane,
paragraph 1910.1044(f)(5)(i), to require employers to provide employees
with their exposure monitoring results individually in writing or by
posting the employees' results in a readily accessible location. No
cost or burden hours accrue to employers under this standard since OSHA
has determined that no U.S. employers currently produce DBCP or DBCP-
based end-use products.
The final rule would revise the acrylonitrile standard, paragraph
1910.1045(e)(5)(i), to require employers to provide employees with
their exposure monitoring results individually in writing or by posting
the employees' results in a readily accessible location. OSHA assumes
the employers would prefer to post the employees' results in a readily
accessible location.
The Agency estimates that under the present standard, 923 employees
must be informed of sampling results in writing. OSHA estimates that a
secretary, earning $17.34 per hour, will take 5 minutes (.08 hour) to
prepare each notification. Thus, 485 burden hours are required at a
cost of $8,415.
Under the revision, 9 burden hours at a cost of $160 would be
attributed to secretaries at each of the 23 plants, earning $17.34 per
hour, spending 5 minutes (.08 hour) each to post quarterly monitoring
results and one additional monitoring result. Cost savings would amount
to $8,255.
The final rule would revise the lead standard for the construction
industry, paragraph 1926.62(d)(8)(i), to require employers to provide
employees with their exposure monitoring results individually in
writing or by posting the employees' results in a readily accessible
location. OSHA assumes the employers would prefer to post the
employees' results in a readily accessible location.
As in the Lead in Construction Paperwork Package, the Agency
estimates that under the present standard, 177,194 employees are
notified two times a year in writing of their exposure monitoring
results. OSHA estimates that a secretary, earning $17.34 per hour, will
take six minutes (.10 hour) to prepare each notification. Thus, 38,678
burden hours are required at a cost of $670,671.
The revised standard would require that employers post monitoring
results at readily accessible locations at each facility. Thus, 10,185
burden hours at a cost of $176,608 would be required in the lead
standard for construction as secretaries of each of 147,073 firms,
earning $17.34 per hour, would spend six minutes (.10 hour) to post
monitoring results two times a year. Cost savings would amount to
$494,063.
The final rule revises the cadmium standard for the construction
industry, paragraph 1926.1127(d)(5)(i), to require employers to provide
employees with their exposure monitoring results individually in
writing or by posting the employees' results in a readily accessible
location. OSHA assumes the employers would prefer to post the
employees' results in a readily accessible location.
The Agency estimates that under the present standard 7,500
employees need monitoring when exposed to cadmium above the AL three
times per year. OSHA estimates that a secretary, earning $17.34 per
hour, will take 5 minutes (.08 hour) to individually inform the
employees in writing of exposure monitoring results and to also post a
copy of the results in a centralized location. The Agency assumes that
the time associated with posting a copy of the result is minimal after
already completing the individual notification; thus no additional time
is assumed. Included in this 5 minutes is the time to maintain the
record as required in paragraph (n)(1). The present standard requires
1,720 burden hours at a cost of $32,044.
With the final standard, 280 burden hours at a cost of $4,855 would
be required (secretaries at 1,000 employers, earning $17.34 per hour,
would spend 5 minutes each to post monitoring results). The revision
would result in cost savings of $27,189.
References
1. Office of Management and Budget, ``Guidelines and Discount Rates
for Benefit-Cost Analysis of Federal Programs,'' Circular No. A-94
Revised (Transmittal Memo No. 64). October 29, 1992.
2. U.S. Dept. of Labor, Bureau of Labor Statistics, ``Employer
Costs for Employees.''
V. Regulatory Flexibility Certification
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq. (as amended), OSHA examined the regulatory requirements of the
proposed rule to determine if they would have a significant economic
impact on a substantial number of small entities. As indicated in
section IV (``Economic Analysis'') of this preamble, the proposed rule
is expected to reduce compliance costs and regulatory burden for all
employers, large and small. The reduction in compliance costs is under
$100 million. Accordingly, the Agency certifies that the proposed rule
would not have a significant economic impact on a substantial number of
small entities.
VI. Environmental Impact Assessment
OSHA has reviewed the proposed rule in accordance with the
requirements of the National Environmental Policy Act (NEPA) of 1969
(42 U.S.C. 4321 et seq.), the regulations of the Council on
Environmental Quality (40 U.S.C. 1500), and the Department of Labor's
NEPA procedures (29 CFR part 11). The Agency finds that the revisions
included in the final rule do not directly involve the control of
hazardous materials. Therefore, the final rule would have no additional
impact on the environment, including no impact on the release of
materials that contaminate natural resources or the environment, beyond
the impact imposed by the existing requirements these proposed
revisions would amend.
VII. OMB Review Under the Paperwork Reduction Act
Under the Paperwork Reduction Act (PRA) of 1995, agencies are
required to seek the Office of Management and Budget (OMB) approval for
all collections of information (paperwork). As a part of the approval
process, agencies are required to solicit comment from affected parties
with regard to the collection of information, including the financial
and time burdens estimated by the agencies for the collection of
information. The paperwork burden-hour estimate and cost analysis that
an Agency submits to OMB is termed an ``Information Collection
Request'' (ICR).
In the October 31, 2002, proposed rule, OSHA requested the public
to comment on the 13 ICRs that the Agency submitted to OMB. These ICRs
requested OMB to approve revisions to the current collections of
information. In December 2002, OMB approved the proposed burden hour
and cost reduction contained in the 13 ICRs. OMB stated on the
approvals: ``DOL will resubmit this package as a revision if changes
are made based on comments to the Standards Improvement Project
Proposed Rule.''
The final rule does not change any of the proposed revisions to the
collections
[[Page 1138]]
of information contained in the 13 ICRs. Table 4 lists the 13 ICRs,
their OMB control number, expiration date, and changes to the
collections of information contained in the ICRs. However, based on
public comment (Ex. 4-13), the Agency did increase the amount of time
employers take to conduct exposure monitoring from 10 minutes to 1
hour. OSHA has submitted documentation to OMB, PRA Change Worksheet
(OMB 83-C form), for Vinyl Chloride (OMB Control number 1218-0010 ) and
Acrylonitrile (OMB Control number 1218-0126) to reflect the increased
time employers take to conduct exposure monitoring, and the larger
burden hour reduction from reducing the frequency of exposure-
monitoring.
Information Collection Requests Expiration Dates & Final Revisions
----------------------------------------------------------------------------------------------------------------
Burden hour
OMB Control Number; expiration date ICR provision Final changes to ICR changes
----------------------------------------------------------------------------------------------------------------
1218-0010.............................. Vinyl Chloride (Sec. Reduced the frequency -1,048
Exp. Date: 9/30/2005................... 1910.1017(d)(2) (i)). employers must conduct
periodic exposure-
monitoring from monthly to
quarterly monitoring.
Vinyl Chloride (Sec. Reduced the frequency -262
1910.1017(d)(2) (ii)). employers must conduct
periodic exposure-
monitoring from quarterly
to semi-annual monitoring.
Vinyl Chloride (Sec. Increased the time to 66
1910.1017(d)(2) (iii)). conduct additional
exposure monitoring.
Vinyl Chloride (Sec. Reduced the frequency -240
1910.1017(f) (3)). employers must update
their compliance plans
from every six months to
annually.
Vinyl Chloride (Sec. Reduced the number of -366
1910.1017(k)(2) (i)&(ii)). medical examinations from
semi-annually to annually.
Vinyl Chloride (Sec. Reduced the number of -15
1910.1017(k) (4)). physician's written
opinions employers must
provide to their employees.
Vinyl Chloride (Sec. Reduced the number of -105
1910.1017(m) (2)). exposure records employers
must develop and maintain.
Vinyl Chloride (Sec. Reduced the number of -14
1910.1017(m) (2)). medical records employers
must develop and maintain.
Vinyl Chloride (Sec. Removed burden hours for -17
1910.1017(n) (1)). employers to notify OSHA
when establishing a
regulated area.
Vinyl Chloride (Sec. Removed burden hours for -800
1910.1017(n) (2)). employers to report
emergencies to OSHA area
director.
Vinyl Chloride (Sec. Allows employers to post -159
1910.1017(n) (3)). exposure monitoring
results and increase time
to inform employees of
their exposure-monitoring
results from 10 to 15
working days.
---------------
Subtotal........................... .......................... ........................... -2,960
===============
1218-0061.............................. Cotton Dust (Sec. Allow employers to post -3,927
Exp. Date: 9/30/2005................... 1910.1043 (d)(4) (i)). exposure monitoring
results.
1218-0085.............................. 13 Carcinogens (Sec. Removed burden hours for -970
Exp. Date: 11/30/2005.................. 1910.1003(f) (2)). employers to report spills
to local OSHA area offices.
---------------
13 Carcinogens (Sec. Removed burden hours for -194
1910.1003(f) (1)). employers to notify OSHA
when establishing a
regulated area.
Subtotal........................... .......................... ........................... -1,164
===============
1218-0092.............................. Lead in General Industry Allow employers to post -51,401
Exp. Date: 12/31/2005.................. (Sec. exposure-monitoring
1910.1025(d)(8)(i)). results.
Lead in General Industry Revise required compliance 0
(Sec. 1910.1025(e)(3) plan update from every six
(iv)). months to annually. No
information on areas over
the PEL in general
industry, and the standard
is almost 25 years old.
---------------
Subtotal........................... .......................... ........................... -51,401
===============
1218-0101.............................. 1,2-Dibromo-3-chlorpropane Removed burden hours for 0
Exp. Date: 11/30/2005.................. (DBCP) (Sec. 1910.1044 employers to report when
(d)(4)). DBCP is introduced into
workplace to OSHA.
DBCP (Sec. Reduced the frequency 0
1910.1044(f)(3)(i), (ii)). employers must conduct
periodic exposure
monitoring.
DBCP (Sec. 1910.1044(f) Allow employers to post -0
(5)). exposure monitoring
results and increase time
to inform employees of
their exposure- monitoring
results from 5 working
days to 15 working days.
DBCP (Sec. Reduced the frequency 0
1910.1044(g)(2)(ii)). employers must update
their compliance plans
from every six months to
annually.
---------------
Subtotal........................... .......................... ........................... 0
===============
1218-0104.............................. Inorganic Arsenic (Sec. Removed burden hours for -3
Exp. Date: 9/30/2005................... 1910.1018(d)(1)). employers to notify OSHA
when establishing a
regulated area.
[[Page 1139]]
Inorganic Arsenic (Sec. Allow employers to post -541
monitoring results exposure-monitoring
1910.1018(e)(5)(i)). results.
Inorganic Arsenic (Sec. Reduced the frequency -72
1910.1018(g)(2)(iv)). employers must update
their compliance plans
from every six months to
annually.
Inorganic Arsenic (Sec. Revise the x-ray rating 0
1910.1018(n)(2)(ii)(A)). procedure; no significant
change.
Inorganic Arsenic (Sec. Reduced the number of -1,661
1910.1018(n)(3)(ii)). medical examinations from
semi-annually to annually.
Inorganic Arsenic (Sec. Reduced the frequency -80
1910.1018(n) (5)). employers must provide
information to the
physician.
Inorganic Arsenic (Sec. Reduced the frequency -80
1910.1018(n) (6)). employers must provide the
physician's written
opinion to their employers.
Inorganic Arsenic (Sec. Reduced the number of -79
1910.1018(q) (6)). medical records employers
must develop and maintain.
---------------
Subtotal........................... .......................... ........................... -2,516
===============
1218-0126.............................. Acrylonitrile (Sec. Removed burden hours for -23
Exp. Date: 9/30/2005................... 1910.1045(d)(1)). employers to notify OSHA
when establishing a
regulated area.
Acrylonitrile (Sec. Removed burden hours for -92
1910.1045(d)(2)). employers to report
emergencies to OSHA area
director.
Acrylonitrile (Sec. Reduced the frequency -1,819
conduct employers must periodic
1910.1045(e)(3)(ii). exposure monitoring from
monthly to quarterly and
from quarterly to semi-
annually.
Acrylonitrile (Sec. Increased the time to +11
1910.1045(e)(4)). conduct additional
monitoring.
Acrylonitrile (Sec. Allow employers to post -476
1910.1045(e)(5)). exposure-monitoring
results.
Acrylonitrile (Sec. Reduced the frequency -11
1910.1045(g)(2) (ii)). employers must update
their compliance plans
from every six months to
annually.
Acrylonitrile (Sec. Reduced the number of -291
1910.1045) (q)(2)). exposure monitoring
records employers must
develop and maintain.
---------------
Subtotal........................... .......................... ........................... -2,701
===============
1218-0128.............................. Coke Ovens Allows employers to post -1,486
Exp. Date: 9/30/2005................... 1910.1029(e)(3)(i)). exposure-monitoring
results.
Coke Ovens (Sec. Reduced the frequency -42
1910.1029(f)(6) (iv)). employers must update
their compliance plans
from every six months to
annually.
Coke Ovens (Sec. Revise the x-ray rating 0
1910.1029(j)((2) (ii)). procedure; no significant
change.
Coke Ovens (Sec. Reduced the number of -2,898
1910.1029(j)(3) (iii)). medical examinations from
semi-annually to annually.
---------------
Subtotal........................... .......................... ........................... -4,426
===============
1218-0134.............................. Asbestos (Sec. Modified time to inform 0
Exp. Date: 12/31/2005.................. 1926.1101(f)(5)(i)). employees of their
exposure-monitoring
results from ``as soon as
possible'' to no later
than 5 days after receipt.
Asbestos (Sec. Remove burden hours for -1
1926.1101(g)(6)(l). employers to submit
alternative control
methods to OSHA.
---------------
Subtotal........................... .......................... ........................... -1
===============
1218-0185.............................. Cadmium in General Allows employers to post -2,903
Exp. Date: 12/31/2005.................. Industry (Sec. exposure-monitoring
1910.1027(d)(5)). results.
Cadmium in General Removed the requirement 0
Industry (Sec. that the physician's
1910.1027(l)(10)(l)). written opinion be signed.
---------------
Subtotal........................... .......................... ........................... -2,903
===============
1218-0186.............................. Cadmium Construction (Sec. Allow employers to post -1,440
Exp. Date: 12/31/2005.................. 1926.1127(d)(5)(i)). exposure-monitoring
results.
Cadmium Construction (Sec. Remove the physician's 0
1926.1127(l)(10)(i)). written opinion.
---------------
Subtotal........................... .......................... ........................... -1,440
===============
1218-0189.............................. Lead in Const. (Sec. Allow employers to post -28,493
Exp. Date: 12/31/2005.................. 1926.62 9(d) (8)). exposure-monitoring
results.
Lead in Const. (Sec. Reduce the frequency of -108,172
1926.62(e) (2)(v)). updating written
compliance programs.
---------------
[[Page 1140]]
Subtotal........................... .......................... ........................... -136,665
===============
1218-0195.............................. Asbestos (Sec. Modified time to inform 0
Exp. Date: 12/31/2005.................. 1915.1001(f)(5)). employees of their
exposure-monitoring
results from ``as soon as
possible'' to no later
than 5 days after receipt.
Asbestos (Sec. Remove burden hours for -1
1915.1001(g)(6)(iii)). employers to submit
alternative control
methods to OSHA.
---------------
Subtotal........................... .......................... ........................... -1
===============
Total Burden Hour Reduction........ .......................... ........................... -210,105
----------------------------------------------------------------------------------------------------------------
VIII. Unfunded Mandates
OSHA has reviewed the final rule in accordance with the Unfunded
Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq., and Executive Order
12875. As discussed above, OSHA has determined that the final rule is
likely to reduce the regulatory burdens imposed on public and private
employers by the existing requirements these final revisions would
amend. The final rule would not expand existing regulatory requirements
or increase the number of employers who are covered by the existing
rules. Consequently, compliance with the final rule would require no
additional expenditures by either public or private employers. In sum,
the final rule does not mandate that state, local, and tribal
governments adopt new, unfunded regulatory obligations.
IX. Federalism
The Agency has reviewed the 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 before taking actions that restrict state policy options, and
take such actions only when clear constitutional authority exists and
the problem is of national scope. The Executive Order provides for
preemption of state law only when Congress expresses an intent that a
Federal agency do so. The Federal agency must limit any such preemption
to the extent possible.
With respect to states that do not have occupational safety and
health plans approved by OSHA under Section 18 of the Occupational
Safety and Health Act of 1970 (the ``Act'') (29 U.S.C. 667), the Agency
finds that the final rule conforms to the preemption provisions of the
Act. These provisions authorize OSHA to preempt state promulgation and
enforcement of requirements dealing with occupational safety and health
issues covered by Agency standards, unless the state has a state
occupational safety and health plan approved by the Agency. (See Gade
v. National Solid Wastes Management Association, 112 S.Ct. 2374
(1992).) The provisions of 29 U.S.C. 667 prohibit states without such
programs from issuing citations for violations of requirements covered
by Agency standards. The final rule would not expand this limitation.
Regarding states that have OSHA-approved occupational safety and
health plans (``State-plan states''), the Agency finds that the final
rule complies with Executive Order 13132 because it addresses a problem
(i.e., health hazards) that is national in scope. Adoption of these
final revisions, section 18(c)(2) of the Act (29 U.S.C. 667(c)(2))
would not preempt any alternative revisions made by State-plan states
if these revisions are at least as effective as the final revisions.
X. State-Plan States
The 24 states and two territories with their own federally-approved
occupational safety and health plans must develop revisions that are at
least as effective as the final revisions adopted by the Agency within
six months after publication of the final rule. These states and
territories are: Alaska, Arizona, California, Connecticut (State and
local government employees only), Hawaii, Indiana, Iowa, Kentucky,
Maryland, Michigan, Minnesota, Nevada, New Jersey (State and local
government employees only), New Mexico, New York (State and local
government employees only), North Carolina, Oregon, Puerto Rico, South
Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands,
Washington, and Wyoming.
XI. Authority
John L. Henshaw, 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 document.
Signed in Washington, DC, on the 20th day of December 2004.
John L. Henshaw,
Assistant Secretary of Labor.
List of Subjects
29 CFR Part 1910
Hazardous substances, Occupational safety and health, Reporting and
recordkeeping requirements.
29 CFR Part 1915
Hazardous substances, Occupational safety and health, Reporting and
recordkeeping requirements, Shipyard employment, Vessels.
29 CFR Part 1926
Construction industry, Hazardous substances, Occupational safety
and health, Reporting and recordkeeping requirements.
0
In accordance with sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, and 657)), section 41 of the
Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941), section
107 of the Contract Work and Safety Standards Act (40 U.S.C. 333),
section 4 of the Administrative Procedures Act (5 U.S.C. 553) and
Secretary of Labor's Order No. 3-2000 (65 FR 50017), the Agency is
amending 29 CFR parts 1910, 1915, and 1926 as follows:
PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS
Subpart J--General Environmental Controls
0
1. The authority citation for subpart J 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
[[Page 1141]]
(41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR
111), or 3-2000 (65 FR 50017), as applicable.
Sections 1910.141, 1910.142, 1910.145, 1910.146, and 1910.147
also issued under 29 CFR part 1911.
Sec. 1910.142 [Amended]
0
2. In Sec. 1910.142, remove the words ``telegram or telephone'' at the
end of paragraph (l)(2) and add in their place, ``telegram, telephone,
electronic mail or any method that is equally fast.''
Subpart K--Medical and First Aid
0
3. The authority citation for subpart K 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), or 3-2000 (65 FR
50017), as applicable, and 29 CFR part 1911.
0
4. In the first paragraph of Appendix A to Sec. 1910.151, remove the
words ``American National Standard (ANSI) Z308.1-1978, ``Minimum
Requirements for Industrial Unit-Type First-aid Kits'' and add, in
their place, ``American National Standard (ANSI) Z308.1-1998 ``Minimum
Requirements for Workplace First-aid Kits.''
Subpart R--Special Industries
0
5. The authority citation for subpart R 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), or 3-2000 (65 FR
50017), as applicable, and 29 CFR part 1911.
0
6. In Sec. 1910.268, revise paragraph (b)(3) to read as follows:
Sec. 1910.268 Telecommunications.
* * * * *
(b) * * *
(3) Employers must provide employees with readily accessible,
adequate, and appropriate first aid supplies. A non-mandatory example
of appropriate supplies is listed in Appendix A to 29 CFR 1910.151.
* * * * *
Subpart Z--Toxic and Hazardous Substances
0
7. The authority citation for subpart Z 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; 5 U.S.C. 553;
Secretary of Labor's Orders 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), and
3-2000 (65 FR 50017), 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 in Tables Z-1, Z-2, and Z-3 of 29 CFR1910.1000. The
Agency issued 29 CFR 1910.1000 under section (6)(a) of the Act (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 under 29 CFR part 1911, except for the inorganic
arsenic, benzene, and cotton dust listings.
Section 1910.1001 also issued under section 107 of the Contract
Work Hours and Safety Standards Act (40 U.S.C. 333) 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, and1910.1200 also issued under 29
U.S.C. 653.
0
8. In Sec. 1910.1001, revise paragraph (d)(7)(i) to read as set forth
below, and remove the word ``signed'' from the first sentence of the
introductory text of paragraph (l)(7)(i).
Sec. 1910.1001 Asbestos.
* * * * *
(d) * * *
(7) Employee notification of monitoring results. (i) The employer
must, within 15 working days after the receipt of the results of any
monitoring performed under this sections, notify each affected employee
of these results either individually in writing or by posting the
results in an appropriate location that is accessible to affected
employees.
* * * * *
Sec. 1910.1003 [Amended]
0
9-10. Section 1910.1003 is amended by removing and reserving paragraph
(f).
0
11. Section 1910.1017 is amended by:
0
a. Revising paragraphs (d)(2)(i), (d)(2)(ii), the last sentence of
paragraph (f)(3) and paragraphs (k)(2), (k)(6) and (n)(3);
0
b. Removing paragraphs (n)(1) and (n)(2) and redesignating paragraph
(n)(3) as new paragraph (n) and revising it.
The revisions read as follows:
Sec. 1910.1017 Vinyl chloride.
* * * * *
(d) * * *
(2) * * * (i) Must be repeated at least quarterly for any employee
exposed, without regard to the use of respirators, in excess of the
permissible exposure limit.
(ii) Must be repeated not less than every 6 months for any employee
exposed without regard to the use of respirators, at or above the
action level.
* * * * *
(f) * * *
(3) * * *Such plans must be updated at least annually.
* * * * *
(k) * * *
(2) Examinations must be provided in accordance with this paragraph
at least annually.
* * * * *
(6) Laboratory analyses for all biological specimens included in
medical examination shall be performed by accredited laboratories.
* * * * *
(n) Employee notification of monitoring results. The employer must,
within 15 working days after the receipt of the results of any
monitoring performed under this section, notify each affected employee
of these results and the steps being taken to reduce exposures within
the permissible exposure limit either individually in writing or by
posting the results in an appropriate location that is accessible to
affected employees.
* * * * *
0
12. Section 1910.1018 is amended by:
0
a. Removing and reserving paragraph (d);
0
b. Revising paragraphs (e)(5)(i), (g)(2)(iv), (n)(2)(ii)(A), (n)(3)(i);
0
c. Removing paragraph (n)(3)(ii) and redesignating paragraph
(n)(3)(iii) as new (n)(3)(ii); and
0
d. Removing in Appendix C Section I, second paragraph, item (2), the
words ``and an International Labor Office UICC/Cincinnati (ILO U/C)
rating.''
The revisions read as follows:
Sec. 1910.1018 Inorganic arsenic.
* * * * *
(e) * * *
(5) * * * (i) The employer must, within 15 working days after the
receipt of the results of any monitoring performed under this section,
notify each affected employee of these results either individually in
writing or by posting the results in an appropriate location that is
accessible to affected employees.
* * * * *
(g) * * *
(2) * * *
(iv) The plans required by this paragraph must be revised and
updated at least annually to reflect the current status of the program.
* * * * *
(n) * * *
(2) * * *
(ii) * * *
[[Page 1142]]
(A) A standard posterior-anterior chest x-ray;
* * * * *
(3) * * *(i) Examinations must be provided in accordance with this
paragraph at least annually.
* * * * *
0
13. In Sec. 1910.1025, revise paragraphs (d)(8)(i) and (e)(3)(iv) to
read as follows:
Sec. 1910.1025 Lead.
* * * * *
(d) * * *
(8) * * *
(i) The employer must, within 15 working days after the receipt of
the results of any monitoring performed under this section, notify each
affected employee of these results either individually in writing or by
posting the results in an appropriate location that is accessible to
affected employees.
* * * * *
(e) * * *
(3) * * *
(iv) Written programs must be revised and updated at least annually
to reflect the current status of the program.
* * * * *
0
14. In Sec. 1910.1027 revise paragraph (d)(5)(i) to read as set forth
below and remove the word ``signed'' from the first sentence of the
introductory text of paragraph (l)(10)(i).
Sec. 1910.1027 Cadmium.
* * * * *
(d) * * *
(5) * * * (i)The employer must, within 15 working days after the
receipt of the results of any monitoring performed under this section,
notify each affected employee of these results either individually in
writing or by posting the results in an appropriate location that is
accessible to employees.
* * * * *
0
15-16. In Sec. 1910.1028 revise paragraph (e)(7)(i) to read as
follows:
Sec. 1910.1028 Benzene.
* * * * *
(e) * * *
(7) * * * (i) The employer must, within 15 working days after the
receipt of the results of any monitoring performed under this section,
notify each affected employee of these results either individually in
writing or by posting the results in an appropriate location that is
accessible to employees.
* * * * *
0
17. Section Sec. 1910.1029 is amended by:
0
a. Revising paragraphs (e)(3)(i), (f)(6)(iv), (j)(2)(ii), (j)(3)(ii)
and (j)(3)(iii);
0
b. Removing paragraph (j)(3)(iv);
0
c. Redesignating paragraph (j)(3)(v) as (j)(3)(iv); and
0
d. Removing the words ``14 by 17'' and the words
``and a ILO/UC rating to assure some standard of x-ray reading'' from
the third sentence of Appendix B.II.A.
The revision read as follows:
Sec. 1910.1029 Coke oven emissions.
* * * * *
(e) * * *
(3) * * * (i) The employer must, within 15 working days after the
receipt of the results of any monitoring performed under this section,
notify each affected employee of these results either individually in
writing or by posting the results in an appropriate location that is
accessible to employees.
* * * * *
(f) * * *
(6) * * *
(iv) Written plans for such programs shall be submitted, upon
request, to the Secretary and the Director, and shall be available at
the worksite for examination and copying by the Secretary, the
Director, and the authorized employee representative. The plans
required under paragraph (f)(6) of this section shall be revised and
updated at least annually to reflect the current status of the program.
* * * * *
(j)* * *
(2)* * *
(ii) A standard posterior-anterior chest x-ray;
* * * * *
(3) * * *
(ii) The employer must provide the examinations specified in
paragraphs (j)(2)(i) through (j)(2)(vii) of this section at least
annually for employees 45 years of age or older or with five (5) or
more years employment in the regulated area.
(iii) Whenever an employee who is 45 years of age or older or with
five (5) or more years employment in a regulated area transfers or is
transferred from employment in a regulated area, the employer must
continue to provide the examinations specified in paragraphs (j)(2)(i)
through (j)(2)(vii) of this section at least annually as long as that
employee is employed by the same employer or a successor employer.
* * * * *
0
18-19. In Sec. 1910.1043, revise paragraph (d)(4)(i) to read as
follows:
Sec. 1910.1043 Cotton dust.
* * * * *
(d) * * *
(4) * * * (i) The employer must, within 15 working days after the
receipt of the results of any monitoring performed under this section,
notify each affected employee of these results either individually in
writing or by posting the results in an appropriate location that is
accessible to employees.
* * * * *
0
20-21. In Sec. 1910.1044 remove and reserve paragraph (d), and revise
paragraphs (f)(3)(i), (f)(3)(ii), (f)(5)(i) and the last sentence of
paragraph (g)(2)(ii) to read as follows:
Sec. 1910.1044 1,2-Dibromo-3-chloropropane.
* * * * *
(f) * * *
(3) * * * (i) If the monitoring required by this section reveals
employee exposures to be at or below the permissible exposure limit,
the employer must repeat these measurements at least every 6 months.
(ii) If the monitoring required by this section reveals employee
exposures to be in excess of the permissible exposure limit, the
employer must repeat these measurements for each such employee at least
quarterly. The employer must continue quarterly monitoring until at
least two consecutive measurements, taken at least seven (7) days
apart, are at or below the permissible exposure limit. Thereafter the
employer must monitor at least every 6 months.
* * * * *
(5) * * * (i) The employer must, within 15 working days after the
receipt of the results of any monitoring performed under this section,
notify each employee of these results either individually in writing or
by posting the results in an appropriate location that is accessible to
employees.
* * * * *
(g) * * *
(2) * * *
(ii) * * * These plans must be revised at least annually to reflect
the current status of the program.
* * * * *
0
22-23. In Sec. 1910.1045 remove and reserve paragraph (d), and revise
paragraphs (e)(3)(ii), (e)(3)(iii), (e)(5)(i) and (g)(2)(v) to read as
follows:
Sec. 1910.1045 Acrylonitrile.
* * * * *
(e) * * *
(3) * * *
(ii) If the monitoring required by this section reveals employee
exposure to be at or above the action level but at or below the
permissible exposure limits, the employer must repeat such monitoring
for each such employee at least every 6 months. The employer must
continue these measurements every 6 months until at least two
consecutive measurements taken at least seven (7) days a part, are
below the action level, and thereafter the employer
[[Page 1143]]
may discontinue monitoring for that employee.
(iii) If the monitoring required by this section reveals employee
exposure to be in excess of the permissible exposure limits, the
employer must repeat these determinations for each such employee at
least quarterly. The employer must continue these quarterly
measurements until at least two consecutive measurements, taken at
least seven (7) days apart, are at or below the permissible exposure
limits, and thereafter the employer must monitor at least every 6
months.
* * * * *
(5) * * * (i) The employer must, within 15 working days after the
receipt of the results of any monitoring performed under this section,
notify each affected employee of these results either individually in
writing or by posting the results in an appropriate location that is
accessible to employees.
* * * * *
(g) * * *
(2) * * *
(v) The plans required by this paragraph must be revised and
updated at least annually to reflect the current status of the program.
* * * * *
0
24. In Sec. 1910.1047, revise (d)(7)(i) to read as follows:
Sec. 1910.1047 Ethylene oxide.
* * * * *
(d) * * *
(7) * * * (i) The employer must, within 15 working days after the
receipt of the results of any monitoring performed under this section,
notify each affected employee of these results either individually in
writing or by posting the results in an appropriate location that is
accessible to employees.
* * * * *
0
25. In Sec. 1910.1048, revise (d)(6) to read as follows:
Sec. 1910.1048 Formaldehyde.
* * * * *
(d) * * *
(6) Employee notification of monitoring results. The employer must,
within 15 working days after the receipt of the results of any
monitoring performed under this section, notify each affected employee
of these results either individually in writing or by posting the
results in an appropriate location that is accessible to employees. If
employee exposure is above the PEL, affected employees shall be
provided with a description of the corrective actions being taken by
the employer to decrease exposure.
* * * * *
0
26. In Sec. 1910.1051, revise paragraph (d)(7)(i) to read as follows:
Sec. 1910.1051 1,3-Butadiene.
* * * * *
(d) * * *
(7) * * * (i) The employer must, within 15 working days after the
receipt of the results of any monitoring performed under this section,
notify each affected employee of these results either individually in
writing or by posting the results in an appropriate location that is
accessible to employees.
* * * * *
PART 1915--OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR SHIPYARD
EMPLOYMENT
0
27. The authority citation for Part 1915 is revised 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 (``the Act''), 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), and 3-2000 (65 FR 50017), as applicable.
Sections 1915.120 and 1915.152 also issued under 29 CFR part
1911.
Section 1915.1001 also issued under 5 U.S.C. 553.
Subpart Z--Toxic and Hazardous Substances
0
28. In Sec. 1915.1001, revise paragraph (f)(5) to read as set forth
below and remove paragraph (g)(6)(iii).
Sec. 1915.1001 Asbestos.
* * * * *
(f) * * *
(5) Employee notification of monitoring results. The employer must,
as soon as possible but no later than 5 days after the receipt of the
results of any monitoring performed under this section, notify each
affected employee of these results either individually in writing or by
posting the results in an appropriate location that is accessible to
employees.
* * * * *
PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION
Subpart D--Occupational Health and Environmental Controls
0
30. The authority citation for subpart D is revised to read as follows:
Authority: Section 107, Contract Work Hours and Safety Standards
Act (40 U.S.C. 333); sections 4, 6, and 8 of the Occupational Safety
and Health Act of 1970 (``the Act''), 29 U.S.C. 653, 655, and 657; 5
U.S.C. 553; Secretary of Labor's Orders 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), and 3-2000 (65 FR 50017), as applicable; and 29 CFR part 1911.
0
31. In Sec. 1926.60, revise paragraph (f)(7)(i) to read as follows:
Sec. 1926.60 Methylenedianilene.
* * * * *
(f) * * *
(7) * * *(i) The employer must, as soon as possible but no later
than 5 working days after the receipt of the results of any monitoring
performed under this section, notify each affected employee of these
results either individually in writing or by posting the results in an
appropriate location that is accessible to employees.
* * * * *
0
32. In Sec. 1926.62, revise paragraphs (d)(8)(i) and (e)(2)(v) to read
as follows:
Sec. 1926.62 Lead.
* * * * *
(d) * * *
(8) * * * (i) The employer must, as soon as possible but no later
than 5 working days after the receipt of the results of any monitoring
performed under this section, notify each affected employee of these
results either individually in writing or by posting the results in an
appropriate location that is accessible to employees.
* * * * *
(e) * * *
(2) * * *
(v) Written programs must be revised and updated at least annually
to reflect the current status of the program.
* * * * *
Subpart Z--Toxic and Hazardous Substances
0
33. The authority citation for subpart Z is revised to read as follows:
Authority: Section 107, Contract Work Hours and Safety Standards
Act (40 U.S.C. 333); sections 4, 6, and 8 of the Occupational Safety
and Health Act of 1970 (``the Act''), 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), and
3-2000 (65 FR 50017), as applicable; and 29 CFR part 1911.
Sections 1926.1101 and 1926.1127 also issued under 5 U.S.C. 553.
Section 1926.1102 also issued under 5 U.S.C. 553, but not under
29 U.S.C. 655 or 29 CFR part 1911.
0
34. In Sec. 1926.1101, revise paragraph (f)(5) to read as set forth
below and remove paragraph (g)(6)(iii).
Sec. 1926.1101 Asbestos.
* * * * *
(f) * * *
[[Page 1144]]
(5) Employee notification of monitoring results. The employer must,
as soon as possible but no later than 5 working days after the receipt
of the results of any monitoring performed under this section, notify
each affected employee of these results either individually in writing
or by posting the results in an appropriate location that is accessible
to employees.
* * * * *
0
35-36. In Sec. 1926.1127 revise paragraph (d)(5)(i) to read as set
forth below and remove the word ``signed'' from the first sentence of
the introductory text of paragraph (l)(10)(i).
Sec. 1926.1127 Cadmium.
* * * * *
(d) * * *
(5) * * * (i) The employer must, as soon as possible but no later
than 5 working days after the receipt of the results of any monitoring
performed under this section, notify each affected employee of these
results either individually in writing or by posting the results in an
appropriate location that is accessible to employees.
* * * * *
[FR Doc. 04-28221 Filed 12-30-04; 8:45 am]
BILLING CODE 4510-26-P