[Federal Register Volume 81, Number 192 (Tuesday, October 4, 2016)]
[Proposed Rules]
[Pages 68504-68685]
[FR Doc No: 2016-19454]

Vol. 81

Tuesday,

No. 192

October 4, 2016

Part II

Department of Labor

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

Occupational Safety and Health Administration

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

29 CFR Parts 1904, 1910, 1915, and 1926

Standards Improvement Project-Phase IV; Proposed Rule

Federal Register / Vol. 81 , No. 192 / Tuesday, October 4, 2016 /
Proposed Rules

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

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1904, 1910, 1915, and 1926

[Docket No. OSHA-2012-0007]
RIN 1218-AC67

Standards Improvement Project-Phase IV

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

ACTION: Proposed rule; request for comments.

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

SUMMARY: In response to the President's Executive Order 13563,
``Improving Regulations and Regulatory Review,'' the Occupational
Safety and Health Administration (OSHA) is continuing its efforts to
remove or revise outdated, duplicative, unnecessary, and inconsistent
requirements in its safety and health standards. The current review,
the fourth in this ongoing effort, is called Standards Improvement
Project-Phase IV (SIP-IV). The goal of the proposed rulemaking is to
reduce regulatory burden while maintaining or enhancing employees'
safety and health. SIP-IV focuses primarily on OSHA's construction
standards.

DATES: Submit comments and hearing requests by December 5, 2016. All
submissions must bear a postmark or provide other evidence of the
submission date.

ADDRESSES: Submit comments and additional material using any of the
following methods:
    Electronic. Submit comments and attachments electronically via the
Federal eRulemaking Portal at http://www.regulations.gov. Follow the
instructions online for making electronic submissions.
    Facsimile. Commenters may fax submissions, including any
attachments that are no longer than 10 pages in length to the OSHA
Docket Office at<PHONE_NUMBER>; OSHA does not require hard copies of
these documents. Commenters must submit lengthy attachments that
supplement these documents (e.g., studies, journal articles) to the
OSHA Docket Office, Technical Data Center, Room N-2625, U.S. Department
of Labor, 200 Constitution Ave. NW., Washington, DC 20210. These
attachments must clearly identify the commenter's name, date, subject,
and docket number (i.e., OSHA-2012-0007) so the Agency can attach them
to the appropriate comments.
    Regular mail, express mail, hand (courier) delivery, or messenger
service. Submit a copy of comments and any additional material (e.g.,
studies, journal articles) to the OSHA Docket Office, Docket No. OSHA-
2012-0007, Technical Data Center, Room N-2625, U.S. Department of
Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone:
(202) 693-2350 (TDY number:<PHONE_NUMBER>). Note that security
procedures may result in significant delays in receiving comments and
other written materials by regular mail. Contact the OSHA Docket Office
for information about security procedures concerning delivery of
materials by express mail, hand delivery, or messenger service. The
hours of operation for the OSHA Docket Office are 8:15 a.m.-4:45 p.m.,
e.t.
    Instructions. All submissions received must include the Agency name
and the docket number for this rulemaking (i.e., OSHA-2012-0007). OSHA
places all submissions, including any personal information provided, in
the public docket without change; this information will be available
online at http://www.regulations.gov. Therefore, the Agency cautions
commenters about submitting information they do not want made available
to the public, or submitting comments that contain personal information
(either about themselves or others) such as Social Security numbers,
birth dates, and medical data.
    OSHA requests comments on all issues related to this proposed rule,
including whether these revisions will have any economic, paperwork, or
other regulatory impacts on the regulated community.
    Docket. To read or download submissions or other material in the
docket (including material referenced in the preamble), go to http://www.regulations.gov, or contact the OSHA Docket Office at the address
listed above. While the Agency lists all documents in the docket in the
http://www.regulations.gov index, some information (e.g., copyrighted
material) is not publicly available to read or download through this
Web site. All submissions, including copyrighted material, are
accessible at the OSHA Docket Office. Contact the OSHA Docket Office
for assistance in locating docket submissions.

FOR FURTHER INFORMATION CONTACT:
    Press inquiries. Contact Frank Meilinger, Director, OSHA Office of
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210; telephone:<PHONE_NUMBER>; email:
<EMAIL_ADDRESS>    General and technical information. Contact Blake Skogland, Office
of Construction Standards and Guidance, OSHA Directorate of
Construction, U.S. Department of Labor, 200 Constitution Avenue NW.,
Room N-3468, Washington, DC 20210; telephone:<PHONE_NUMBER>; fax:
(202) 693-1689; email<EMAIL_ADDRESS>    Copies of this Federal Register notice. Electronic copies are
available at http://www.regulations.gov. This Federal Register notice,
as well as news releases and other relevant information, also are
available at OSHA's Web page at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Background
III. Summary and Explanation of the Proposed Rule
IV. Preliminary Economic Analysis and Regulatory Flexibility Act
Analysis
V. Legal Considerations
VI. OMB Review Under the Paperwork Reduction Act of 1995
VII. Federalism
VIII. State Plans
IX. Unfunded Mandates Reform Act of 1995
X. Review by the Advisory Committee for Construction Safety and
Health
XI. Public Participation

I. Executive Summary

    OSHA is proposing 18 revisions to existing standards in its
recordkeeping, general industry, maritime, and construction standards,
with most of the revisions to its construction standards. The purpose
of Standards Improvement Projects (SIPs) is to remove or revise
outdated, duplicative, unnecessary, and inconsistent requirements in
OSHA's safety and health standards, which will permit better compliance
by employers and reduce costs and paperwork burdens where possible,
without reducing employee protections. OSHA is conducting SIP-IV in
response to the President's Executive Order 13563, ``Improving
Regulations and Regulatory Review'' (76 FR 38210). OSHA would update
three standards to align with current medical practice, including a
reduction to the number of necessary employee x-rays, updates to
requirements for pulmonary function testing, and updates to the table
used for decompression of employees during underground construction.
Additionally, the proposed revisions include an update to the consensus
standard incorporated by reference for signs and devices used to
protect workers near automobile traffic, a revision to the requirements
for roll-over protective structures to comply with current consensus
standards,

updates for storage of digital x-rays and the method of calling
emergency services to allow for use of current technology, and a
revision to lockout/tagout requirements in response to a court
decision, among others. OSHA is also proposing to remove from its
standards the requirements that employers include an employee's social
security number (SSN) on exposure monitoring, medical surveillance, and
other records in order to protect employee privacy and prevent identity
fraud.
    SIP rulemakings do not address new significant risks or estimate
benefits and economic impacts of reducing such risks. Overall, SIP
rulemakings are reasonably necessary under the OSH Act because they
provide cost savings, or eliminate unnecessary requirements. The Agency
does estimate cost savings and paperwork reductions for SIP
rulemakings. The Agency has estimated that one revision (updating the
method of identifying and calling emergency medical services) may
increase construction employers costs by about $28,000 per year while
two provisions (reduction in the number of necessary employee x-rays
and elimination of posting requirements for residential construction
employers) provide estimated costs savings of $3.2 million annually.
The Agency has not estimated or quantified benefits to employees from
reduced exposure to x-ray radiation or to employers for the reduced
cost of storing digital x-rays rather than x-ray films, among others.
The Agency has preliminarily concluded that the proposed revisions are
economically feasible and do not have any significant economic impact
on small businesses. The Preliminary Economic Analysis in this preamble
provides an explanation of the economic effects of the proposed
revisions.

II. Background

    The purpose of the SIP-IV rulemaking is to remove or revise
outdated, duplicative, unnecessary, and inconsistent requirements in
OSHA's safety and health standards. The Agency believes that improving
OSHA standards will increase employers' understanding of their
obligations, which will lead to increased compliance, improve employee
safety and health, and reduce compliance costs.
    In 1995, in response to a Presidential memorandum to improve
government regulation,\1\ OSHA began a series of rulemakings designed
to revise or remove standards that were confusing, outdated,
duplicative, or inconsistent. OSHA published the first rulemaking,
``Standards Improvement Project, Phase I'' (SIP-I) on June 18, 1998 (63
FR 33450).\2\ Two additional rounds of SIP rulemaking followed, with
final SIP rules published in 2005 (SIP-II) (70 FR 1111) and 2011 (SIP-
III) (76 FR 33590).\3\
---------------------------------------------------------------------------

    \1\ Clinton, W.J. Memorandum for Heads of Departments and
Agencies. Subject: Regulatory Reinvention Initiative. March 4, 1995.
    \2\ Revisions made by the SIP-I rulemaking included adjustments
to the medical-surveillance and emergency-response provisions of the
Coke Oven Emissions, Inorganic Arsenic, and Vinyl Chloride
standards, and removal of unnecessary provisions from the Temporary
Labor Camps standard and the textile industry standards.
    \3\ In the final SIP-II rulemaking published in 2005 (70 FR
1111), OSHA revised a number of provisions in its health and safety
standards identified as needing improvement either by the Agency or
by commenters during the SIP-I rulemaking. These included updating
or removing notification requirements from several standards,
updating requirements for first aid kits to reflect newer consensus
standards, updating requirements for laboratories analyzing samples
under the vinyl chloride standard, making worker exposure monitoring
frequencies consistent under certain health standards, among other
things. The final SIP-III rule, published in 2011 (76 FR 33590),
updated consensus standards incorporated by reference in several
OSHA rules, deleted provisions in a number of OSHA standards that
required employers to prepare and maintain written training-
certification records for personal protective equipment, revised
several sanitation standards to permit hand drying by high-velocity
dryers, and modified OSHA's sling standards to require that
employers use only appropriately marked or tagged slings for lifting
capacities.
---------------------------------------------------------------------------

    As stated above, the President's Executive Order 13563 (E.O.),
``Improving Regulations and Regulatory Review,'' sets out the goals and
criteria for regulatory review, and requires agencies to review
existing standards and regulations to ensure that these standards and
regulations continue to protect public health, welfare, and safety
effectively, while promoting economic growth and job creation. The E.O.
encourages agencies to use the best, least burdensome means to achieve
regulatory objectives, to perform periodic reviews of existing
standards to identify outmoded, ineffective, or burdensome standards,
and to modify, streamline, or repeal such standards when appropriate.
    The Agency believes that the SIP rulemaking process is an effective
means to improve its standards and advised the Advisory Committee for
Construction Safety and Health (ACCSH) at a public meeting held on
December 16, 2011 that it intended to review its standards under the
SIP criteria, with particular emphasis on construction standards. A
transcription of these proceedings (ACCSH Transcript) is available at
Docket No. OSHA-2011-0124-0026.
    Recognizing the importance of public participation in the SIP
process, the Agency published a Request for Information (RFI) on
December 6, 2012 (77 FR 72781) asking the public to identify standards
that were in need of revision or removal, and to explain how such
action would reduce regulatory burden while maintaining or increasing
the protection afforded to employees. The Agency received 26 comments
in response to the RFI. As discussed below, several of the proposed
amendments contained in this proposed rule were recommended in the
public comments received in response to the RFI. Other proposed SIP
amendments were identified by the Agency's own internal review and by
ACCSH.

III. Summary and Explanation of the Proposed Rule

    OSHA is proposing a number of actions amending its standards,
including revisions to its general industry, maritime, and construction
standards. A detailed discussion of each of the proposed revisions
follows, including a discussion of comments the Agency received in
response to the RFI. Some of the proposed revisions affect more than
one industry (i.e., general industry, construction). When proposed
revisions to a general industry standard would affect additional
industries, OSHA will discuss the revisions fully in the general
industry section and then reference the provisions affected in the
sections covering the other industries.

A. Proposed Revision in Occupational Injuries and Illnesses Recording
and Reporting Standards (29 CFR Part 1904)

Subpart C--Recording Forms and Recording Criteria, Recording Criteria
for Cases Involving Occupational Hearing Loss in 29 CFR 1904.10
    The provisions of 29 CFR part 1904 provide for the recording and
reporting of occupational injuries and illnesses. Section 1904.10 sets
out the recordkeeping criteria for recording cases involving
occupational hearing loss. Current Sec.  1904.10(b)(6) provides that
``[i]f a physician or other licensed health care professional
determines that a hearing loss is not work-related or has not been
significantly aggravated by occupational noise exposure, [the employer
is] not required to consider the case work-related or to record the
case on the OSHA 300 log.'' Section 1904.5 provides the requirements
for determining whether an injury or illness is work-related.
    To clarify the relationship between Sec. Sec.  1904.10(b)(6) and
1904.5, OSHA incorporated the following language

into the recordkeeping compliance directive:

    Physician or other licensed health care professional (PLHCP)
must follow the rules set out in 1904.5 to determine if the hearing
loss is work-related. If an event or exposure in the work
environment either caused or contributed to the hearing loss, or
significantly aggravated a pre-existing hearing loss, the PLHCP must
consider the case to be work-related. It is not necessary for work
to be the sole cause, or the predominant cause, or even a
substantial cause of the hearing loss; any contribution from work
makes the case work-related. The employer is responsible for
ensuring that the PLHCP applies the analysis in Section 1904.5 when
evaluating work-related hearing loss, if the employer chooses to
rely on the PLHCP's opinion in determining recordability.

(CPL 02-00-135, Chapter 5, Section IX, Question 10-4, 01/12/2012.)
    In this rulemaking, OSHA is proposing to add a specific cross
reference to Sec.  1904.5 in paragraph Sec.  1904.10(b)(6) to make the
language in Sec.  1904.10(b)(6) consistent with the above-quoted
language from the compliance directive. The reference specifies that
employers must comply with the provisions of Sec.  1904.5 when making a
determination of whether a worker's hearing loss is work-related. OSHA
believes the proposed revision will assist employers in complying with
the hearing-loss recording requirement.

B. Proposed Revisions in General Industry Standards, Shipyard
Standards, and Construction Standards (29 CFR Parts 1910, 1915, and
1926)

1. Subpart J of 1910--General Environmental Controls, Control of
Hazardous Energy (Lockout/Tagout) in 29 CFR 1910.147
    The Control of Hazardous Energy (Lockout/Tagout) standard, 29 CFR
1910.147, establishes requirements for the control of hazardous energy,
including electrical, pneumatic, mechanical, hydraulic, chemical or
thermal energy, during the servicing and maintenance of machinery and
equipment. Workers who service equipment without preventing the
discharge of this energy can be electrocuted or suffer burns,
amputations, lacerations, bone fractures, or crushing injuries, among
others.
    According to its terms, the lockout/tagout standard applies to
servicing and maintenance operations ``in which the unexpected
energization or startup of the machines or equipment, or the release of
stored energy could cause injury to employees'' (Sec.
1910.147(a)(1)(i) (emphasis in original)). Because OSHA believes the
term ``unexpected'' has been misinterpreted to exclude some operations
where employees are subject to injury from startup or the release of
stored energy, the Agency is proposing to remove the word from Sec.
1910.147(a)(1) and several other places it appears in the standard
(Sec. Sec.  1910.147(a)(2)(iii)(A), (a)(3)(i), (b), (c)(1), (c)(4)(i),
(f)(4), and in Appendix A). The lockout/tagout standard was designed to
protect workers from being injured if a machine or other piece of
equipment they are servicing releases stored energy, for example, by
starting or moving during the servicing. The standard protects these
employees by requiring that machines or equipment be de-energized and
locked or tagged out by the worker performing the servicing or
maintenance before the work is performed. The essence of the standard's
protection is that a de-energized machine or piece of equipment cannot
be restarted unless the worker servicing it personally removes the
lockout or tagout device he or she has applied.
    Thus, OSHA intended the phrase ``unexpected energization'' to mean
any re-energization or startup that occurs before the servicing
employee removes the lockout/tagout device from the energy isolation
device or equivalent energy control mechanism.
    In line with this intent, OSHA has historically interpreted the
term ``unexpected energization'' to mean energization that is
unintended or unplanned by the servicing employee (72 FR 72452, 72496,
December 20, 2007; CPL 02-00-147). OSHA believes that preventing this
type of unintended or unplanned energization during servicing is
necessary to fully effectuate the standard's purpose of protecting
workers through the control of hazardous energy. (See CPL 02-00-147,
The Control of Hazardous Energy--Enforcement Policy and Inspection
Procedures at 3-1 (Feb. 11, 2008) (``Quite simply, the [lockout/tagout]
standard is violated when an employee is, or may be, exposed to
hazardous energy that has not been isolated, even if the employee knows
that the energy has not been controlled and continues to constitute a
hazard.''))
    Several decisions of the Occupational Safety and Health Review
Commission (OSHRC) support this interpretation. In Burkes Mechanical,
Inc., 21 BNA OSHC 2136, 2139 & n.4 (No. 04-0475, 2007), OSHRC rejected
an argument that the lockout/tagout standard did not apply to employees
who were servicing conveyor equipment that was operating. The fact that
they knew the equipment was moving did not mean that the hazard fell
outside the scope of the standard. Similarly, OSHRC found the standard
applied in Otis Elevator Co., 24 BNA OSHC 1081 (No. 09-1278, 2013),
aff'd, 762 F.3d 116 (D.C. Cir. 2014), where an employee was trying to
unjam the stuck gate assembly of an elevator car without proper energy
control measures in place. The energization was unexpected because,
although the worker knew the gate assembly would start to move when
unjammed, he could not predict when it would become unjammed. The
United States Court of Appeals for the District of Columbia Circuit
affirmed OSHRC's decision for the same reason. Otis Elevator Co. v.
Secretary of Labor, 762 F.3d 116, 122 (D.C. Cir. 2014).
    On the other hand, OSHA's understanding of the standard has not
always been accepted. In Reich v. General Motors Corp., Delco Chassis
Div. (GMC Delco), 17 BNA OSHC 1217 (Nos. 91-2973, 91-3116, 91-3117,
1995); aff'd 89 F.3d 313 (6th Cir. 1996), both OSHRC and the United
States Court of Appeals for the Sixth Circuit rejected OSHA's
interpretation. Instead they held that the lockout/tagout standard did
not apply where a startup procedure for a machine provided a warning to
a worker servicing it that it was about to start. In that case, workers
were servicing machines that used an eight-to-twelve-step startup
procedure, including time delays, and audible or visual warnings. The
court and OSHRC held that, because these features would warn the
servicing employees that the machines were about to start, the startup
would not be ``unexpected.'' According to the Sixth Circuit, ``the
plain language of the lockout standard unambiguously renders the rule
inapplicable where an employee is alerted or warned that the machine
being serviced is about to activate.'' 89 F.3d at 315.
    OSHA believes that the GMC Delco decisions fundamentally
misconstrue the ``unexpected'' language of the lockout/tagout standard
by allowing employers to use warning and delay systems as alternatives
to following the requirements of the standard. Warning devices are not
as protective as a lockout/tagout program, and the standard does not
allow them to be used as an alternative to a lockout/tagout program.
Indeed, the exclusive use of warning devices subverts the intent of the
standard by removing control over the hazardous energy from individual
authorized employees and instead placing the burden on those exposed
employees to become cognizant of and to recognize the warnings, so that
they can attempt to escape danger zones before they are injured. In
adopting the standard, OSHA considered this approach to be impractical
and dangerous. Instead, OSHA intended to

protect employees effectively from all forms of hazardous energy by
isolating machines from their energy sources during servicing and/or
maintenance and providing the workers who were servicing them with
control over the energy isolation devices (see CPL 02-00-147 at 3-3 &
ch. 4).
    In addition, by holding that work on a device that gives warning
before startup does not fall within the standard, the GMC Delco
decisions, in essence, require a case-by-case assessment of various
warning schemes to determine the applicability of the standard. To
enforce the standard consistent with those decisions, OSHA has provided
its compliance officers with 11 different factors to evaluate to
determine whether particular warning devices are adequate and reliable
enough to allow all employees to escape all types of hazardous energy
in all circumstances that may occur (see CPL 02-00-147 at 3-5 to 3-6).
This creates a degree of uncertainty about the applicability of the
standard for the regulated community that OSHA did not intend.
    As a result of the GMC Delco decisions, OSHA is proposing to remove
the term ``unexpected'' from the lockout/tagout standard to revert to
its original understanding of the standard. The proposal is intended to
make clear that the lockout/tagout standard covers all equipment
servicing activities in which there are energization, startup, or
stored energy hazards.
    This proposal is consistent with the court's recognition that the
rulemaking process provides OSHA with the opportunity to change the
application of the lockout/tagout standard. GMC Delco, 89 F.3d at 316.
It will also make the standard consistent with OSHA's shipyard lockout/
tagout standard, which is almost identical to the general industry
standard except that it omits the word ``unexpected'' from the scope
provision. 29 CFR 1915.89. The shipyard lockout/tagout proposal gave
the same reasons for deleting the word as are provided here (72 FR
72452, 72496, December 20, 2007), and OSHA finalized the rule after
failing to receive any comments addressing the issue. (76 FR 24576,
24704, May 2, 2011).
    Removing the word ``unexpected'' will improve protection of workers
under the standard, eliminate the confusion regarding applicability of
the standard caused by the GMC Delco decisions, and make the lockout/
tagout standard consistent with the lockout/tagout provisions in the
General Working Conditions in Shipyard Employment standard.
2. Subpart Z of 1910, 1915, and 1926--Toxic and Hazardous Substances,
Asbestos in 29 CFR 1910.1001, Inorganic Arsenic in 29 CFR 1910.1018,
Cadmium in 29 CFR 1910.27, Coke Oven Emissions in 29 CFR 1910.29,
Acrylonitrile in 29 CFR 1910.1045, Asbestos in 29 CFR 1915.1001,
Asbestos in 29 CFR 1926.1101, Cadmium in 29 CFR 1926.1127
    OSHA is proposing a series of revisions to requirements addressing
employee chest X-rays in the Agency's health standards. In particular,
OSHA is proposing to remove the requirement in several of its standards
that employers provide periodic chest X-rays to screen for lung cancer;
to allow employers to use digital films and other reasonably-sized
standard films for X-rays; and to update terminology and references to
ILO guidelines included in its asbestos standards.
Removing Periodic Chest X-Ray Requirements for Lung-Cancer Screening
    OSHA requires medical surveillance in its health standards to
detect early indications of adverse health effects in exposed workers
before symptoms occur, so that appropriate interventional measures can
be taken. Several OSHA standards currently require periodic chest X-
rays (CXR), also referred to as posterior-anterior CXR, radiographs, or
roentgenograms (a term no longer used). When the Agency published these
standards, routine screening for lung cancer with CXR was appropriate
clinical practice. However, since then, large studies with many years
of follow-up have not shown a benefit to CXR screening, either on lung
cancer incidence or mortality. Therefore, OSHA is proposing to remove
the requirement for periodic CXR in the following standards: Sec. Sec.
1910.1018, Inorganic Arsenic; 1910.1029, Coke Oven Emissions; and
1910.1045, Acrylonitrile. OSHA is not proposing to remove the
requirement for a baseline CXR in these, or any other, standards. OSHA
is also not proposing to remove the CXR requirements in standards where
it is used for purposes other than periodic screening for lung cancer.
For example, the proposal does not affect periodic CXRs required by
OSHA's standards to detect or monitor the progression of
pneumoconiosis.
    Similarly, OSHA is proposing to amend Appendix H of the asbestos
standard, Sec.  1910.1001.\4\ Appendix H provides non-mandatory
guidelines for asbestos medical exposure, and OSHA proposes to include
the text ``Plural plaques and thickening may be observed on chest X-
rays.'' OSHA is retaining CXRs in the asbestos standard to continue
screening for asbestosis, and the proposed text notes the changes
related to asbestosis that can be seen on CXRs. The change thus
explains the purpose of the CXR.
---------------------------------------------------------------------------

    \4\ OSHA is also proposing the same change for the parallel
appendices in the Maritime and Construction Asbestos standards, 29
CFR 1915.1001 Appendix I and 1926.1101 Appendix I.
---------------------------------------------------------------------------

    Section 6(b)(7) of the Occupational Safety and Health Act, 29
U.S.C. 655(b)(7), allows OSHA to modify medical examination
requirements in existing standards when ``warranted by experience,
information, or medical or technological developments.'' OSHA has used
this authority on several occasions. For example, when contemporary
evidence indicated that sputum cytology did not improve lung-cancer
survival rates, OSHA removed the sputum-cytology-examination
requirements from the Coke Oven and Inorganic Arsenic standards in the
SIP-I rulemaking (63 FR 33450, 33458-59, June 18, 1998). In addition,
OSHA also reduced CXR frequencies from semi-annual to annual for some
workers exposed to inorganic arsenic and coke oven emissions in SIP-I.
The Agency based this reduction on data available at the time
indicating that semi-annual x-rays provided no additional protection,
when compared to annual x-rays, in improving the detection of, and
survival from, lung cancer for higher risk persons (63 FR 33459-60).
This eliminated unnecessary radiation exposure for employees and
reduced the burden on employers. OSHA retained the medical history and
physical-examination requirements in these standards.
    For the reasons discussed below, OSHA has made a preliminary
determination that the current literature shows that there is no
evidence of benefit, either in lung cancer incidence or mortality, from
screening with CXR in the general population. The primary goal of
population-based screening is to detect disease at an early stage when
cure or control is possible, thereby decreasing the number of people
who die from the disease (Black and Welch, 1997; U.S. Preventive
Services Task Force (USPSTF), 2013; Mazzone, 2012).\5\ Several large-
scale, randomized controlled trials have been conducted over the years
to determine whether

screening with chest x-rays, with or without the addition of sputum
cytology tests, was effective in reducing mortality from lung cancer.
These studies are discussed below. The Mayo Lung Project compared
participants in an ``intervention'' group, who were offered chest
radiography and sputum cytology every four months, with those in a
``control'' group offered standard medical care. Participants were
middle-aged and older men who were chronic heavy cigarette smokers and
thus at high risk of developing lung cancer. After the initial
prevalence screening, 9,211 male smokers aged 45 and older who
completed the prevalence screening with negative results and who
qualified for incidence rescreening were randomized to either of the
two groups. The more screening-intensive intervention group was
encouraged (and reminded) to undergo free chest x-rays and free sputum
cytology tests every four months for six years. While the ``controls''
were offered standard medical care, they also were advised to undergo
annual chest x-rays and sputum cytology tests, resulting in significant
contamination of the control group by CXR performed off protocol.
Follow-up ranged from one to five years, and averaged three years.
---------------------------------------------------------------------------

    \5\ Materials referenced are posted on http://regulations.gov,
Docket No. OSHA-2012-0007, and are accessible at OSHA's Docket
Office, U.S. Department of Labor, 200 Constitution Avenue NW., Room
N2625, Washington, DC 20210; telephone<PHONE_NUMBER>. (OSHA's TTY
number is<PHONE_NUMBER>.) OSHA Docket Office hours of operation are
8:15 a.m. to 4:45 p.m., E.T.
---------------------------------------------------------------------------

    At the end of the follow-up (July 1, 1983), the Mayo Clinic study
observed no difference in lung cancer mortality between the
intervention and control groups, but observed an excess of 46 cases in
the intervention group, a possible indication of over-diagnosis in lung
cancer screening. The excess number of cases also could have resulted
from short follow-up time (that is, additional cases may have been
observed in the control group if the study lasted longer). In summary,
this trial demonstrated significantly increased lung cancer detection,
resectability, and survivorship after detection in the group offered
screening every four months compared with the control group. However,
there was no significant difference in lung cancer mortality rate
between the two groups. Contamination of the control group, together
with 25 percent non-compliance in the screened group, limited the
statistical power of this trial. The authors concluded that ``results
do not justify recommending large-scale radiologic or cytologic
screening for early lung cancer at this time (Fontana, et al., 1984;
Fontana, et al., 1991).''
    The term ``over-diagnosis'' refers to identifying through screening
a disease that would otherwise remain undiagnosed during an
individual's lifetime (i.e., because symptoms do not present). Over-
diagnosis is a serious potential risk of screening, as the evaluation
and treatment of over-diagnosed cancer can lead to morbidity, and even
to premature mortality (Black, 2000).
    In order to assess whether over-diagnosis accompanies lung cancer
CXR screening, Marcus et al. (2006) extended the follow-up of the same
Mayo Clinic population studied by Fontana et al. for an additional 16
years using a randomized controlled trial with a stop-screen feature. A
stop-screen study design (i.e., one in which screening is terminated
after a prespecified number of years but follow-up continues for
ascertainment of cases of disease and deaths) provides the best setting
in which to assess whether over-diagnosis accompanies screening (Marcus
et al., 2006). If over-diagnosis does not occur, the cumulative number
of cases in each group will be equal after screening stops and the
number of cancers in the control group identified through symptoms
catches up with those identified earlier through screening (Marcus et
al., 2006).
    At the start of the study in 1983, information on lung cancer
status was available for 6,101 participants. From 1971 through the end
of 1999, 585 participants in the more frequently screened group and 500
in the usual-care group were diagnosed with lung cancer. Because the
number of lung cancers in the usual care group did not equalize with
those in the more frequently screened group at the end of the study
period, the study investigators concluded that ``the persistence of
excess cases in the intervention [group] after 16 years of additional
follow-up provides continued support for over-diagnosis in lung cancer
screening'' (Marcus et al., 2006).
    OSHA identified one study that included men who were younger than
45. A Czech study, Kubic and Polak (1986), enrolled 6,364 smokers aged
40 to 64 years. This study compared semi-annual screening using x-ray
and sputum cytology to screening at three-year intervals, and to no
screening. Although it found more earlier-stage lung cancers in both
screened groups, this study also found no significant difference in
mortality rates. In 1993, the Prostate, Lung, Colorectal, and Ovarian
(PLCO) Randomized Trial examined the question whether screening would
reduce mortality rates from PLCO cancers. In a randomized controlled
study conducted in ten screening centers in the US, 154,901
participants aged 55 through 74 years were assigned either to the group
that received annual CXR for three or four years, or to the ``usual
care'' (no radiographic intervention) group; 51.6 percent of the
participants were current or former smokers. All diagnosed cancers,
deaths, and causes of death were ascertained through 13 years of
follow-up or until December 31, 2009, whichever event occurred earlier
(Oken et al., 2011). The study found no statistically significant
differences in lung cancer mortality or incidence rates between the
intervention and ``usual care'' groups, despite finding a higher
proportion of early stage (potentially curable) lung cancers in the
screened group (Hocking et al., 2010). Of particular note is the rate
of false positives in the study; of 13,038 participants with at least
one positive CXR, 12,730, or 97.6 percent, did not test positive for
lung cancer. Furthermore, 121 participants without cancer underwent an
invasive surgical procedure (Hocking et al., 2013).
    An effective screening measure should detect a disease in its early
stages before clinical signs and symptoms appear (Herman, 2006).
Patients who are diagnosed while they are still asymptomatic tend to
have better outcomes than those who are symptomatic (In, et al., 2008).
It is well documented in the radiology literature that initial CXR
misses 19-50 percent of lung cancers (Quekel, 1999). In the past
decades, several technological innovations have shown improved
sensitivity in detecting lung cancer. Several small studies have shown
that newer techniques (e.g., dual-energy subtraction radiology,
electronic bone suppression, temporal subtraction) may result in fewer
missed diagnoses of pulmonary nodules. However, no large-scale
randomized or non-randomized studies are available that assess the
sensitivity of these radiological techniques.
    Baseline screening of general populations for unsuspected lung
cancer with CXR yields only a small fraction--less than one percent--of
lung cancer cases (Hocking et al., 2010; Kubik and Polak, 1986; Fontana
et al., 1984). Currently, the majority (approximately 85 percent) of
patients with lung cancer present for clinical evaluation with symptoms
(Mazzone, et al., 2014); detection of lung cancer in the remaining
(asymptomatic) patients frequently occurs when an x-ray or CT scan is
done for another reason (Mazzone et al., 2014; PubMed Health).
    Several authoritative sources of health-information do not
recommend CXR for wide-scale screening. For example, the National
Cancer Institute (NCI) in its online Lung Cancer Screening PDQ
(Physician's Data Query) concluded, ``Based on solid evidence,
screening with chest x-ray and/or

sputum cytology does not reduce mortality from lung cancer in the
general population or in ever-smokers.'' The NCI PDQ goes on to discuss
the harm associated with false-positive screenings: ``Based on solid
evidence, at least 95 percent of all positive chest x-ray screening
exams (but not all) do not result in a lung cancer diagnosis. False-
positive exams result in unnecessary invasive diagnostic procedures.''
The NCI PDQ refers to the Oken (2011) and Marcus (2006) studies when
estimating the magnitude of over-diagnosis at 6 percent to 17 percent.
The Cochrane Collaboration, a non-profit group that reviews health-care
literature for the purpose of making empirical recommendations, updated
its original review article, ``Screening for lung cancer,'' in 2013.
This latest review included nine trials (eight randomized controlled
studies and one controlled trial) with a total of 453,965 subjects. The
review includes many of the studies discussed here. The authors
concluded:

    The current evidence does not support screening for lung cancer
with chest radiography or sputum cytology. Annual low-dose CT
screening is associated with a reduction in lung cancer mortality in
high-risk smokers but further data are required on the cost
effectiveness of screening and the relative harms and benefits of
screening across a range of different risk groups and settings.

(Manser et al., 2013).

    Screening workers exposed to lung carcinogens is a complex issue.
Current tools, particularly CXR, have not been shown to be effective in
reducing mortality in high-risk smoking populations, and have not been
studied in worker populations (Fontana, 1984; Oken, 2011; Marcus et
al., 2011; Hocking et al., 2010). However, workers exposed to lung
carcinogens are at a higher risk for lung cancer than the general
population. OSHA conducts risk analyses as part of its regulatory
requirements, and has determined that occupational exposure to each of
these: Inorganic arsenic, coke oven emissions, and acrylonitrile, was
found to be associated with a ``significant risk'' of lung cancer
(Sec. Sec.  1910.1018, Inorganic Arsenic; 1910.1029, Coke Oven
Emissions; and 1910.1045, Acrylonitrile).
    OSHA has also preliminarily determined that the existing evidence
is insufficient to justify using alternative screening methods to CXR.
While the National Institute for Occupational Safety and Health (NIOSH)
is currently evaluating the applicability of Low-Dose Computed
Tomographic (LDCT) as a screening tool for workers exposed to lung
carcinogens, it may be years before this research can provide a
recommendation on the efficacy of LDCT. Additionally, research is
needed on the risks associated with LDCT-associated radiation exposure
occurring during a screening protocol for workers exposed to lung
carcinogens in the workplace.
    As noted earlier in this discussion, OSHA is proposing to remove
the requirement to use periodic CXR as a screening tool for lung cancer
from the following standards: Sec. Sec.  1910.1018, Inorganic Arsenic;
1910.1029, Coke Oven Emissions; and 1910.1045, Acrylonitrile.
    Although OSHA is proposing to remove periodic CXR requirements from
the medical-surveillance sections of these three standards, the Agency
emphasizes that the Access to Medical and Exposure Records standard (29
CFR 1910.1020) would still require employers to maintain all medical
records, including records of CXRs previously administered. That is,
this proposed rule would not relieve employers in general industry,
maritime, and construction of the duty to maintain records of CXRs
already administered under the requirements of Sec. Sec.  1910.1018,
1910.1029, 1910.1045, 1915.1018, 1915.1045, 1926.1118, and 1926.1145
\6\ in accordance with Sec.  1910.1020.
---------------------------------------------------------------------------

    \6\ The Construction and Maritime Inorganic Arsenic and
Acrylonitrile standards, Sec. Sec.  1915.1018, 1915.1045, 1926.1118,
and 1926.1145, merely reference the respective general industry
standards (Sec. Sec.  1910.1018 and 1910.1045), so OSHA is not
proposing to revise them.
---------------------------------------------------------------------------

    OSHA is not proposing to remove the initial, baseline CXR
requirement in these three standards. The Agency recognizes that
requiring initial, baseline CXR at pre-placement or at the initiation
of a medical-surveillance program provides benefits to workers exposed
to lung carcinogens, their employers, and health-care professionals
evaluating those workers. For example, even with known limitations, CXR
can serve to document the absence of disease. Baseline CXR also can be
useful in preventing additional testing after detecting an abnormality
at a future date. In this regard, the PLCO Screening Trial found that
``evaluation stopped after comparison of the screening radiograph with
a prior CXR in about one-third'' of those participants presenting with
an abnormal follow-up CXR (Hocking et al., 2013). When a worker
receives a CXR prompted by symptoms, physical examination, or other
indicator, and has an abnormality on that CXR, a baseline CXR from
years before with the same lesion would reduce the need for additional
evaluation (e.g., CT scans, biopsy); such evaluations can be invasive,
and lead to unnecessary irradiation for workers and additional costs
for employers. However, workers receiving baseline CXR also may undergo
invasive, potentially unnecessary work-ups and diagnostic testing for
CXR-detectable lesions that may never progress to clinical
significance. OSHA will continue to monitor the literature on baseline
chest X-rays.
Updating Other Chest X-Ray Requirements
    In recent years, improvements in medical technology permit
screening with digital CXRs, also referred to as digital radiographs,
in addition to traditional film-based CXRs. The medical community is
rapidly adopting the technology, and both the International Labor
Organization (ILO) and NIOSH recently published guidelines for digital
radiographs (ILO, 2011; NIOSH, 2011).
    OSHA is proposing to update the CXR requirements to allow the use
of digital radiograph in the medical surveillance provisions of its
Coke Oven Emissions, Acrylonitrile, and Inorganic Arsenic standards
discussed above, and in its three asbestos standards and two cadmium
standards. The latter standards are: Sec. Sec.  1910.1001, Asbestos
(General Industry); 1915.1001, Asbestos (Maritime); 1926.1101, Asbestos
(Construction); 1910.1027, Cadmium (General Industry); and 1926.1127
Cadmium (Construction).\7\ As noted previously, OSHA is proposing to
add the option of digital radiography standards to its existing
standards because digital radiography systems are rapidly replacing
traditional analog film-based systems in medical facilities. Another
Department of Labor Program, the Office of Workers' Compensation
Programs, published a final rule allowing the submission of digital
radiographs in connection with benefit claims, and set out quality
standards for administering and interpreting digital radiographs. (See
79 FR 21606; April 17, 2014). OSHA's proposal will codify current
Agency policy as stated in a Letter of Interpretation dated September
24, 2012 to Dr. Michael Hodgson, in which OSHA confirmed that it ``will
allow, but will not require, digital radiography in place of
traditional chest roentgenograms for medical surveillance exams under
the Asbestos Standards for

general industry, construction, and shipyards.''
---------------------------------------------------------------------------

    \7\ The Maritime Cadmium standard, Sec.  1915.1027, is a
reference to the general industry standard (Sec.  1910.1027), so
OSHA is not proposing to revise it.
---------------------------------------------------------------------------

    Radiographic facilities and the physicians that are required by
OSHA standards to classify CXR according to ILO's classification
guidelines and that employ digital radiographs in their practice should
follow the NIOSH Guidelines, ``Application of Digital Radiography for
the Detection and Classification of Pneumoconiosis,'' or the most
recent NIOSH guidance on using digital radiography to detect
pneumoconiosis. In its current guidelines, NIOSH recommends that ``only
authorized ILO standard digital images should be used for classifying
digital chest images for pneumoconiosis.'' NIOSH does not recommend
using film-based ILO reference radiographs for comparison with digital
chest images or printed hard copies of the images. In this revision of
the chest x-ray requirements, OSHA is also proposing to allow other
reasonably-sized standard x-rays films, such as the 16 inch by 17 inch
size, to be used in addition to the 14 inch by 17 inch film specified
in some standards. In these standards, the phrase ``A 14- by 17-inch
film or digital posterior-anterior chest X-ray'' (or similar) would be
replaced by ``A 14- by 17-inch or other reasonably-sized standard film
or digital posterior-anterior chest X-ray.'' This proposed change will
affect the acrylonitrile standard (Sec.  1910.1045); the inorganic
arsenic standard (Sec.  1910.1018); the coke oven standard (Sec.
1910.1029); and the asbestos standards (Sec. Sec.  1910.1001,
1915.1001, and 1926.1101).\8\ Updating this requirement ensures
consistency across standards as well as conformance with current
medical practice. This proposed change also would codify existing
Agency policy outlined in a Letter of Interpretation (February 16, 1993
to David Lee Sirott) confirming that 16 inch by 17 inch X-rays are
generally acceptable for the purpose of complying with OSHA standards.
---------------------------------------------------------------------------

    \8\ And minor rewording to conform to the proposed language in
the cadmium standards (1910.1027 and 1926.1127).
---------------------------------------------------------------------------

    Proposed updates also include replacement of ``roentgenogram'' with
``X-ray'' to reflect current terminology and corrections to remove
references to semi-annual exams for certain employees in Coke Ovens
Emissions appendices, Sec.  1910.1029 App. A(VI) and App. B(II)(A), as
these exams were eliminated in the second SIP rulemaking (70 FR 1112).
In addition, the proposal makes changes to conform to the language used
in the ILO's ``Guidelines for the use of the ILO International
Classification of Radiographs of Pneumoconioses,'' which specifically
refers to a classification system as applying to CXR, while
interpretation refers to the information translated by the physician to
the employer. Finally, the proposed revisions include updating the
version of the ILO Classification of Radiographs of Pneumoconioses to
the 2011 version (from the 1980 version), and clarifying that
classification must be accordance with the ILO classification system
(rather than ``a professionally accepted Classification system'') in
Appendix E of each of the three asbestos standards.
Statement of Reasonable Availability
    As noted above, OSHA is incorporating the ILO Classification of
Radiographs of Pneumoconioses, Revised Edition 2011, by reference. OSHA
believes that this classification document is reasonably available to
interested parties. It is available for purchase from the International
Labour Organization (ILO), 4 route des Morillons, CH-1211 Gen[egrave]ve
22, Switzerland; telephone: +41 (0) 22 799 6111; fax: +41 (0) 22 798
8685; Web site: http://www.ilo.org/. In addition, it is available in
the docket for this rulemaking and in OSHA's docket office for review.
If OSHA ultimately finalizes this rule, the classification document
will be maintained in OSHA's national and regional offices for review
by the public.
References
Aberle, R., Adams, A., Berg, C., Black, W., Clapp, J., Fagerstrom,
R., et al. (2011). Reduced Lung-Cancer Mortality with Low-Dose
Computed Tomographic Screening. N. Engl. J. Med. 365(5): 395-409.
Bach, P.B., Mirkin, J.N., Oliver, T.K., Azzoli, C.G., Berry, D.A.,
Brawley, O.W., . . . and Detterbeck, F.C. (2012). Benefits and Harms
of CT Screening for Lung Cancer: A Systematic Review. JAMA, 307(22):
2418-2429.
Black, W.C. (2000). Overdiagnosis: An Underrecognized Cause of
Confusion and Harm in Cancer Screening. Journal of the National
Cancer Institute, Vol 92 (16): 1280
Fasola, G., Belvedere, O., Aita, M., Zanin, T., Follador, A.,
Cassetti, P., et al. (2007). Low-Dose Computed Tomography Screening
for Lung Cancer and Pleural Mesothelioma in an Asbestos-Exposed
Population: Baseline Results of a Prospective, Nonrandomized
Feasibility Trial--An Alpe-Adria Thoracic Oncology Multidisciplinary
Group Study (ATOM 002). The Oncologist, 12: 1215-1224.
Fontana, R.S., Sanderson, D.R., Taylor, W.F., Woolner, L.B., Miller,
W.E., Muhm, J.R., and Uhlenhopp, M.A. (1984). Early Lung Cancer
Detection: Results of the Initial (Prevalence) Radiologic and
Cytologic Screening in the Mayo Clinic study. Am. Rev. Resp. Dis.,
130(4): 561. Abstract only.
Fontana, R.S., Sanderson, D.R., Woolner, L.B., Taylor, W.F., Miller,
W.E., Muhm, J.R., Bernatz, P.E., Payne, W.S, and Pairolero, P.C. and
Bergstralh, E.J., (1991). Screening for Lung Cancer, A Critique of
the Mayo Lung Project. Cancer, 67(supplement): 1155-1164).
Herman, C. (2006). What Makes a Screening Exam ``Good''? AMA Virtual
Mentor, 8(1):34-7.
Hocking, W.G., Hu, P., Oken, M.M., Winslow, S.D., Kvale, P.A.,
Prorok, P.C., Ragard, L.R., et al. (2010). Lung Cancer Screening in
the Randomized Prostate, Lung, Colorectal, and Ovarian (PLCO) cancer
screening trial. J. Nat. Cancer Inst., 102(10): 722-731.
Hocking, W.G., Tammemagi, M.C., Commins, J., Oken, M.M., Kvale,
P.A., Hu, P., . . . and Prorok, P.C. (2013). Diagnostic Evaluation
Following a Positive Lung Screening Chest Radiograph in the
Prostate, Lung, Colorectal, Ovarian (PLCO) Cancer Screening Trial.
Lung Cancer. 82(2): 238.
In, K.H., Kwon, Y.S., Oh, I.J., Kim, K.S., Jung, M.H., Lee, K.H.,
Kim, S.Y., Ryu, J.S., Lee, S.Y., Jeong, E.T., Lee, S.Y., . . . Kim,
Y.C. (2009). Lung cancer patients who are asymptomatic at diagnosis
show favorable prognosis: a Korean Lung Cancer Registry Study. Lung
Cancer. 64(2): 232-7. Abstract only.
[ILO] International Labour Organization (2011). Guidelines for the
Use of the ILO International Classification of Radiographs of
Pneumoconioses, Revised Edition 2011. Geneva, Switzerland: ILO.
Kubik, A., and Polak, J. (1986). Lung Cancer Detection Results of a
Randomized Prospective Study in Czechoslovakia. Cancer, 57(12):
2427-2437.
Manser, R., Lethaby, A., Irving, L., Stone, C., Brynes, G.,
Abramson, M., and Campbell, D. (2013). Screening for Lung Cancer.
Cochrane Database Syst. Rev., The Cochrane Library, 6.
Marcus, P., Bergstralh, E.J., Zweig, M., Harris, A., Offord, K.P.,
and Fontana, R.S. (2006). Extended Lung Cancer Incidence Follow-up
in the Mayo Lung Project and Overdiagnosis. J. Nat. Cancer Inst.,
98(11).
Mazzone, P.J., Choi, H.K., and Ha, D. (2014) Lung Cancer. Cleveland
Clinic Center for Continuing Education, The Disease Management
Project, Chapter on Pulmonary Disease.
Moyer, V.A. (2014). Screening for Lung Cancer: U.S. Preventive
Services Task Force Recommendation Statement. Annals Internal Med,
160 (5).
[NCI] National Cancer Institute (Last modified 2/2014). Screening
for Lung Cancer With Chest X-Ray and/or Sputum Cytology. Retrieved
from: http://www.cancer.gov/cancertopics/pdq/screening/lung/HealthProfessional on September 16, 2014.
Oken, M., Hocking, W., Kvale, P., Andriole, G., Buys, S., Church,
T., et al. (2011). Screening by Chest Radiograph and Lung Cancer
Mortality: The Prostate, Lung, Colorectal, and Ovarian (PLCO)
Randomized Trial. JAMA, 306(17): 1865-1873.
PubMed Health, Retrieved 9/16/2014 from: http://
www.ncbi.nlm.nih.gov/

pubmedhealth/PMH0004529/on September 16, 2014.
Quekel, L.G., Kessels, A.G., Goei, R, and van Engelshoven, J.M.
(1999). Miss rate of lung c[aacute]ncer on the chest radiograph in
clinical practice. Chest. 115(3):720-4.
Toyoda, Y., Nakayama, T., Kusunoki, Y., Iso, H., and Suzuki, T.
(2008). Brit. J. Cancer, 98: 1602-1607.
Screening for Lung Cancer, Topic Page (2013). U.S. Preventive
Services Task Force. (2013). U.S. Preventive Services Task Force.
Retrieved on September 16, 2014 from: http://www.uspreventiveservicestaskforce.org/uspstf/uspslung.htm.
3. Subpart Z of 1910--Toxic and Hazardous Substances, Pulmonary-
Function Testing Requirements for Cotton Dust in 29 CFR 1910.1043
Background
    In 1978, OSHA promulgated the standard for occupational exposure to
cotton dust at 29 CFR 1910.1043 because workers exposed to cotton dust
are at risk of developing the respiratory disease, byssinosis (43 FR
27350, June 23, 1978). As described in the preambles to the proposed
and final rules, byssinosis is characterized by a continuum of effects
(41 FR 56497, 56500-56501, December 28, 1976; 43 FR 27352-27354).
Generally, workers who develop byssinosis first experience an acute
stage (also called the reactor state), with mild and apparently
reversible symptoms that occur on the first day of the work week, after
one or more days away from the workplace. Symptoms include chest
tightness, difficulty breathing, coughing, and possibly wheezing. Some
of those workers also experience temporary acute declines in lung
function over the course of a workshift as measured by pulmonary-
function testing. As the disease progresses, workers may begin to
experience symptoms on other days of the work week. Sometimes the
disease progresses into a chronic, irreversible stage that involves
permanent narrowing of bronchial tubes. Symptoms during the chronic
stage are similar to symptoms observed with emphysema and chronic
bronchitis, and include chronic cough with phlegm production and
progressive shortness of breath. At this stage, impaired lung function
associated with the disease is clearly detectable by pulmonary function
testing. Byssinosis can lead to disability or death. Rates of
progression depend on exposure levels and susceptibility of workers.
    The Cotton Dust Standard contains medical-surveillance provisions
at 29 CFR 1910.1043(h). These provisions require initial and periodic
medical-surveillance examinations that include administration of a
medical questionnaire to determine if workers are experiencing symptoms
(Sec. Sec.  1910.1043(h)(2)(ii) and (h)(3)(i)). Medical surveillance
requirements also include pulmonary function testing (i.e., spirometry
testing) to objectively measure lung function and to assess changes in
lung function (Sec.  1910.1043(h)(2)(iii)).
    The preamble for the final Cotton Dust standard noted the poor
accuracy and high variability of pulmonary function tests in the past,
resulting from lack of uniform specifications for equipment calibration
checks, test procedures, and personnel training (43 FR 27391). To
improve the accuracy and consistency of pulmonary function testing,
OSHA mandated specific requirements in the Cotton Dust Standard based
on recommendations from the American Thoracic Society (ATS) and the
National Institute for Occupational Safety and Health (NIOSH) (43 FR
27391; 29 CFR 1910.1043, Appendix D). Since 1978, pulmonary function
testing procedures and technology have evolved significantly, and some
of the mandates in the Cotton Dust Standard now are outdated. OSHA is
proposing to update the lung function testing requirements for the
Cotton Dust Standard to make them consistent with current practices and
technology.
Proposed Revisions
    OSHA based the proposed revisions to the Cotton Dust Standard
pulmonary function testing requirements on current recommendations from
the American Thoracic Society/European Respiratory Society (ATS/ERS),
NIOSH, and the American College of Occupational and Environmental
Medicine (ACOEM). Each of these organizations is a recognized authority
on generally accepted practices in pulmonary function testing. In the
following discussion, references to generally accepted practices refer
to only those practices recommended by ATS/ERS, NIOSH, or ACOEM.
    Like other respiratory diseases, byssinosis can slow the speed of
expired air and/or reduce the volume of air that can be inspired and
then exhaled. To detect and monitor these impairments, spirometry
measures the maximal volume and speed of air that is forcibly exhaled
after taking a maximal inspiration. Forced Vital Capacity (FVC) is
defined as total exhaled volume after full inspiration. Speed of
expired air is determined by dividing the volume of air exhaled in the
first second, i.e., the Forced Expiratory Volume in One Second (FEV1),
by the total FVC to give the FEV1/FVC ratio. Values obtained from
accurate and repeatable spirometry testing are then compared to
reference predicted values, which are averages expected for a person of
the same gender, age, height, and race as the employee being tested. A
spirometry result that is 100 percent of the predicted value for a
person of the same gender, age, and height and race indicates that the
individual being tested has average lung function (OSHA, 2013).
Depending upon the race of the individual and the reference value group
being used, an adjustment may need to be made on the basis of race.
This issue is discussed at greater length later in this discussion.
Values are also compared to the employees' previous measurements.
    Currently, Sec.  1910.1043(h)(2)(iii) requires that health care
providers conducting medical surveillance compare the employees' values
to the predicted values in Appendix C of the standard. Appendix C
currently contains predicted values derived from equations published by
Knudson et al. (1976).
    OSHA is proposing to revise this provision to specify use of the
third National Health and Nutrition Examination Survey (NHANES III)
reference data set and to replace the values currently in Appendix C
with the NHANES III values, derived from Spirometric Reference Values
from a Sample of the General U.S. Population (Hankinson et al., 1999),
which will be incorporated by reference. Currently, NIOSH (CDC/NIOSH,
2003), ATS/ERS (Pellegrino et al., 2005), and ACOEM (Townsend, 2011)
all recommend NHANES III as the most appropriate reference data set for
assessing spirometry results for individuals in the U.S. population.
The data set from NHANES III is the most recent and most representative
of the U.S. population (Hankinson et al., 1999). It lists reference
values for non-smoking, asymptomatic male and female Caucasians,
African Americans, and Mexican Americans aged 8- to 80-years old.
Strict adherence to ATS quality control standards ensured optimal
accuracy in developing this data set of spirometry values (Hankinson et
al., 1999).
    OSHA also proposes to make a correction to Sec.  1910.1043,
Appendix B-II, Section B, ``Occupational History Table''. The table's
column titled ``Tenure of Employment'' contains boxes in which dates of
employment are entered. To allow the entry of dates that occurred later
than 1999, OSHA would change the column's two sub-headers to

read as follows: ``From 19_ or 20_'' and ``To 19_ or 20_''.
Statement of Reasonable Availability
    As noted above, OSHA is incorporating the Spirometric Reference
Values from a Sample of the General U.S. Population (Hankinson JL,
Odencrantz JR, Fedan KB. American Journal of Respiratory and Critical
Care Medicine, 159(1):179-187, January 1999). These values are also
available to interested parties at http://www.cdc.gov/niosh/topics/spirometry/nhanes.htm. In addition, they are available at
www.regulations.gov in the docket for this rulemaking and in OSHA's
docket office for review. If OSHA ultimately finalizes this rule, the
data set will be maintained in OSHA's national and regional offices for
review by the public.
    Section 1910.1043(h)(2)(iii) currently specifies that FEV1 and FVC
predicted values be multiplied by 0.85 to obtain reference values for
blacks because the Knudson data set contains reference values only for
Caucasians. However, such an adjustment for that race/ethnic group is
no longer necessary because the NHANES III data set contains reference
values for African Americans. However, the NHANES III data set does not
contain reference values for Asian Americans, who typically have
smaller lung volumes compared to Caucasians of the same age, height,
and gender (Pellegrino et al., 2005). To obtain Asian American
reference values, ATS/ERS (Redlich et al., 2014) and ACOEM (Townsend,
2011) recommend that Caucasian reference values for FVC and FEV1 be
multiplied by a factor of 0.88. Therefore, OSHA is proposing use of a
0.88 correction factor to obtain Asian American reference values for
the FVC and FEV1. Because race does not appear to affect FEV1/FVC
(ratio), OSHA is not proposing to apply a correction factor to
Caucasian values to derive a ratio for Asian Americans. If the NHANES
data set is updated to include Asian American values in the future, and
generally accepted practices endorse that data set for use in the U.S.,
OSHA will consider revising Sec.  1910.1043(h)(2)(iii).
    OSHA's proposal to replace the Knudson values currently in Appendix
C with the NHANES III data set would simplify interpretation of
spirometry results by providing reference values for more race/ethnic
groups; however, neither the NHANES III nor the proposed correction
factor addresses every race/ethnic group. Therefore, OSHA is proposing
text that indicates comparison to ``appropriate'' race/ethnicity values
for groups not included in NHANES III. For example, using Mexican-
American values for non-Mexican-American Hispanic workers may be
appropriate. Designations of race/ethnicity are self-reported by
workers, and bi-racial or multi-racial workers should select the race
category that best describes them. OSHA's guidance document provides
some additional guidance on this topic, including a recommendation to
use Caucasian reference values for Native American Indians (OSHA,
2013).
    The software for most spirometers includes the NHANES III data set,
which is identified as the Hankinson 1999 data set on some spirometers.
If software for older spirometers does not include the NHANES III data
set, users of those spirometers would be able to access the NHANES III
values online through the NIOSH calculator (CDC/NIOSH, 2010). Tables of
the NHANES III values are also available in an appendix to OSHA's
spirometry guidance for healthcare professionals that is available
online (OSHA, 2013). Therefore, NHANES III values are widely available
to spirometry providers, including those providers using older
spirometers.
    Currently, paragraph (h)(2)(iii) requires an evaluation of
pulmonary function testing values using predicted values of FVC and
FEV1, which are the only reference values listed in the tables in
current Appendix C. The NHANES III reference data set includes the
lower limit of normal (LLN) as well as predicted values for FEV1, FVC,
and the FEV1/FVC ratio. The LLN for these spirometry measurements
represents the lower fifth percentile of a healthy (normal) population.
That is, 95 percent of a healthy (normal) population should have
spirometry values above the LLN, and spirometry values below the LLN
could be abnormal (OSHA, 2013). Generally accepted practices by ATS/
ERS, NIOSH, and ACOEM currently compare spirometry values to the LLN
values to identify impaired pulmonary function.
    In particular, ATS/ERS (Pellegrino et al., 2005) defines airways
obstruction as an FEV1/vital capacity (VC) below the LLN. ACOEM
(Townsend, 2011) and NIOSH (CDC/NIOSH, 2003) define borderline airway
obstruction as an FEV1/FVC below the LLN, with an FEV1 between the LLN
and the predicted value; they define airways obstruction as both FEV1/
FVC and an FEV1 below the LLN. ATS/ERS, NIOSH, and ACOEM indicate that
an FVC or VC less than the LLN could indicate possible restrictive
impairment (Pellegrino et al., 2005; Townsend, 2011; CDC/NIOSH, 2003).
    Therefore, OSHA is proposing to update (h)(2)(iii) to require an
evaluation of FEV1, FVC, and FEV1/FVC against the LLN and percent
predicted values to fully characterize possible pulmonary impairment in
exposed workers, which is consistent with generally accepted current
practices described above. OSHA's proposal to evaluate the FEV1/FVC
ratio in addition to FEV1 and FVC will not affect triggers for changes
in medical surveillance frequency or referral for a detailed pulmonary
examination, because the standard bases those triggers solely on FEV1
values.
    However, OSHA is also proposing to change the triggers for the
frequency of medical surveillance. Currently, paragraphs (h)(3)(ii)(A)
and (B) of the standard require frequency of medical surveillance based
in part on whether the FEV1 is above or below 80 percent of the
predicted value. OSHA is proposing that the basis for frequency of
medical surveillance be whether the FEV1 is above or below the LLN. As
noted above, generally accepted practices currently use the LLN as the
basis for classifying possibly abnormal lung function. Pulmonary
function normally declines with age, and the LLN better accounts for
age-related declines than the current standard (Townsend et al., 2011).
There is evidence that the cut-off point used by the standard, 80
percent of the predicted value, can result in erroneous lung function
interpretation in adults (Pellegrino et al., 2005). Therefore, OSHA is
proposing to use the LLN to determine the frequency of lung-function
testing.
    Section 1910.1043, Appendix D, sets standards for spirometric
measurements of pulmonary function. OSHA is basing the proposed changes
to Appendix D on the most recent spirometry recommendations from ATS/
ERS (Miller et al., 2005). Many of the proposed changes reflect
advances in spirometry procedures or methods of interpretation.\9\
Other proposed changes reflect technological changes associated with
the current widespread use of flow-type spirometers, in addition to
volume-type spirometers, which were in widespread use in 1978 when OSHA
published the current standard, and remain in use today. The proposed

changes would apply only to equipment purchased one year after OSHA
publishes the final standard in the Federal Register. This would give
time for distributors to exhaust existing stocks and allow medical
providers to continue using the older spirometers until they buy new
ones in the normal course of business.
---------------------------------------------------------------------------

    \9\ Appendix D provides minimal standards that must be employed
when making spirometry measurements. Users of Appendix D should also
consult generally accepted practices from ATS/ERS (Pellegrino et
al., 2005; Miller et al., 2005), NIOSH (CDC/NIOSH, 2003), and ACOEM
(Townsend, 2011) for a complete list of current spirometry
standards. OSHA's spirometry guidance also outlines those practices
(OSHA, 2013).
---------------------------------------------------------------------------

    Current Appendix D(I)(b) specifies volume capacity for spirometers,
and the proposed revision would change it from seven to eight liters.
Current Appendix D(I)(e) specifies flow rates for flow-type
spirometers, and the proposed revision would change it from 12 to 14
liters per second. These proposed revisions to Appendix D(I)(b) and (e)
reflect current recommendations by ATS/ERS (Miller et al., 2005).
    Current Appendix D(I)(g) requires either a tracing or display, and
OSHA is proposing to revise this language to ``paper tracing or real-
time display.'' When OSHA published the current standard in 1978, a pen
linked to a physical strip chart generated tracings of expiration
curves on graph paper during pulmonary testing. In contrast, most
current flow-type and volume-type spirometers use computer-generated
displays of expiration curves projected on the spirometer or on an
attached computer screen.
    OSHA is proposing to add size specifications for computer-generated
displays, the technology most often used today (Miller et al., 2005).
An issue that was critical for tracings in 1978, and remains critical
for both tracings and displays today, is that they be large enough to
allow a technician to easily evaluate the technical acceptability of
the expiration during testing. A large real-time display allows the
technician to easily view a technically unacceptable expiration and
coach the worker to achieve optimal expirations in subsequent attempts.
Current Appendix D(I)(g) also specifies requirements for paper tracings
of the expiration curve, and requires that the tracings be of
sufficient size for hand measurements to conform to Appendix D(I)(a).
OSHA is proposing to revise paragraph D(I)(g) to indicate ``If hand
measurements will be made.'' OSHA is proposing these changes because
hand measurements are currently rarely used, and the values currently
shown in the expiration curve are usually computer generated today.
    Appendix D(I)(g) also requires the spirometer to display flow
versus volume or volume versus time tracings. The proposed revision
would require the spirometer to display both flow-volume and volume-
time curves or tracings during testing. The flow-volume curve
emphasizes early expiration and allows the technician to detect
problems early in the maneuver (OSHA, 2013). The volume-time curve
emphasizes the end of the expiration and allows the technician to coach
the patient to achieve a complete expiration (OSHA, 2013). OSHA is also
proposing to update the paragraph to indicate that both types of curves
or tracings must be stored and available for recall. This requirement
to store curves will allow the assessment of results for acceptability
and repeatability, once testing is concluded, and it will also make it
possible to include the curves in reports to health care providers who
interpret the results (OSHA, 2013).
    Current Appendix D(I)(h) requires that instruments be capable of
accumulating volume for a minimum of 10 seconds and not stop
accumulating volume before (1) the volume change for a 0.5-second
interval is less than 25 millimeters, or (2) the flow is less than 50
milliliters per second for a 0.5-second interval. As noted by ATS in
1987, these end-of-test criteria, which were first included in the 1979
ATS statement, caused premature termination of exhalation and FVCs that
were falsely reduced by as much as 9 percent (ATS, 1987). To avoid such
falsely reduced FVCs, ATS defined end-of-test criteria only according
to volume change from 1987 onward (ATS 1987, 1994, 2005). Therefore,
OSHA is proposing to update the first clause by specifying the
currently recommended volume change of less than 25 milliliters for a
1-second interval (Miller et al, 2005) and is also proposing to remove
the latter clause, i.e., that the instrument shall not stop
accumulating volume before the flow is less than 50 milliliters per
second for a 0.5-second interval. The proposed changes make Appendix D
consistent with current ATS/ERS recommendations for expiratory end-of-
test criteria using volume increment only, since flow rate criteria
were abandoned in 1987 (ATS, 1987; Miller et al., 2005). OSHA is also
proposing to update this provision by revising the time for which the
instrument must be capable of accumulating volume to 15 seconds, the
maximum time for which an exhalation should be done according to ATS/
ERS (Miller et al., 2005). In 1987, ATS stated that they encourage
spirometer designs that allowed patients to continue exhaling for as
long as possible (ATS, 1987).
    Current Appendix D(I)(j), (II)(b), and (IV)(b) provide requirements
for the calibration of spirometers, and the proposal updates several of
these requirements. The proposed revisions to Appendix D(I)(j),
(II)(b), and (IV)(b) clarify that the technician must always check the
calibration of spirometers, and recalibrate them only if the spirometer
requires the technician to do so. That change is consistent with
recommendations by ATS/ERS (Miller et al., 2005). The reason for the
proposed change is that while technicians cannot recalibrate many
spirometer models in current use, they nevertheless must check all
spirometers regularly when in use to ensure that the spirometers are
operating within calibration limits, i.e., that the spirometers are
accurate (OSHA, 2013).
    OSHA is proposing to delete the following text from Appendix
D(I)(j) because it is ambiguous and provides no useful information: ``.
. . with respect to the FEV1 and FVC. This calibration of the FEV1 and
FVC may be either directly or indirectly through volume and time base
measurements.'' OSHA also is proposing to update paragraph D(I)(j) to
include the current ATS/ERS requirements for calibration-syringe
accuracy and volume displacement (Miller et al., 2005). As noted above,
OSHA is proposing to revise the term ``calibration'' to ``calibration
check.'' Another proposed change to paragraph D(I)(j) is to revise the
term ``calibration source'' to ``calibration syringe'' because a
syringe is the only type of calibration source currently used, so
specifying a syringe instead of a source would clarify the requirement.
    In addition, OSHA proposes to change the word ``should'' in D(I)(j)
to ``shall,'' so the new D(I)(j)(2) would read, ``the volume-
calibration syringe shall provide a volume displacement of at least 3
liters and shall be accurate to within  0.5 percent of 3
liters (15 milliliters).'' The phrase ``should'' sounds advisory, and
the current practices that OSHA proposes to adopt are based on the 3
liter size of the syringe. OSHA seeks comment on this change to
``shall.''
    Current Appendix D(II)(b) provides that technicians should perform
calibrations using a syringe or other source of at least two liters.
The proposed change in the syringe volume to three liters is consistent
with current practices. OSHA also is proposing to change the term
``syringe or other volume source'' to ``syringe'' for the reasons
described above in the discussion of paragraph D(I)(j). Another
proposed change to Appendix D(II)(b) would be to delete the phrase ``or
method.'' The meaning of that phrase is unclear; the sentence is
addressing calibration checks of an instrument (i.e., spirometer), not
a method. OSHA also is proposing calibration check procedures for flow-
type and volume-type spirometers to determine whether a spirometer is
recording 3 liters of air

3.5 percent (Miller et al., 2005; OSHA, 2013). The check of flow-type
spirometers would involve the injection of air at three different
speeds, and the check of volume-type spirometers would involve a single
injection of air and a check for spirometer leakage. Users should refer
to generally accepted practices and other guidance for complete details
about calibration checks (see, e.g., Miller et al., 2005; Townsend,
2011; OSHA, 2013). OSHA also proposes to change the term
``recalibration'' in this provision to ``calibration checks'' for the
reasons stated above in the discussion of paragraph D(I)(j). Finally,
OSHA proposes to change ``should'' to ``shall'' in the first sentence
of D(II)(B) for the same reasons as discussed above regarding paragraph
D(I)(j).
    Appendix D(II)(a) currently contains requirements for measuring
forced expirations, including having the patient make at least three
forced expirations. OSHA is proposing to update this paragraph to have
the patient perform at least three, but no more than eight, forced
expirations during testing. This proposed change would clarify that up
to eight forced expirations can be attempted to obtain three acceptable
forced expirations (Miller et al., 2005). The same paragraph currently
states that ``The subject may sit, . . .'' OSHA proposes that
``subject'' be changed to ``patient'' because ``subject'' implies
someone in an experimental trial, while patient is the more appropriate
term for someone undergoing screening at a medical facility, and
``patient'' is the term used most often in the standard. OSHA also is
proposing to clarify the text in paragraph D(II)(a) to indicate that
the expiration must be repeatable. The term ``repeatability,'' now used
by ATS/ERS, would be an update to the existing term
``reproducibility''; paragraph D(II)(a)(7) lists the criteria for
repeatable (formerly, reproducible) results. In addition, Appendix
D(II)(a) lists elements of ``unacceptable'' efforts in paragraphs
(a)(1)-(a)(7); OSHA proposes to revise this language to ``technically
unacceptable'' to make clear that the problem is not with the worker's
lungs but with the flaws in how the test is conducted.
    Appendix D(II)(a)(3) currently specifies that a worker's efforts
during testing are unacceptable when the expiration does not continue
for at least five seconds or until an obvious plateau in the volume-
time curve occurs. The proposed revision to this paragraph clarifies
that results may be acceptable if the worker attempted to exhale
(versus actually exhaled) for at least six seconds and until an obvious
plateau in the volume-time curve occurs (Miller et al., 2005).
Therefore, the expiration must meet both of these criteria for a
spirometry result to be technically acceptable. Many workers who are
young or have small lung volumes can complete an expiration in less
than six seconds, and their results may be acceptable if the technician
observes an obvious plateau in the volume-time curve (OSHA, 2013).
    Appendix D(II)(a)(4) provides that the results are unacceptable
when the worker coughs or closes the glottis during forced expiration.
This proposed change clarifies that the results are unacceptable if
coughing occurs in the first second of expiration, a condition that is
consistent with current ATS/ERS recommendations (Miller et al., 2005).
Coughing in the first second interferes with measurement of the FEV1
(Miller et al., 2005), but coughing toward the end of the expiration
does not affect test results (OSHA, 2013). Glottis closure at any time
may result in premature termination of the expiration (Miller et al.,
2005).
    Appendix D(II)(a)(6) provides that the results are unacceptable
when there is an unsatisfactory start to expiration characterized by
excessive hesitation, i.e., one with an extrapolated volume greater
than 10 percent of the FVC on the volume-time curve. As noted in the
1987 ATS statement, a criterion of 10 percent could result in a falsely
elevated FEV1 from a suboptimal effort (ATS, 1987). The proposed change
would indicate that extrapolated volume must be less than 150
milliliters or 5 percent of the FVC, whichever is greater, to be
unacceptable. It would update the provision to be consistent with the
most recent ATS/ERS recommendation on criteria for start-of-test so
that an accurate time zero is set (Miller et al, 2005). All ATS or ATS/
ERS statements define acceptable start-of-test criteria according to
volume, as well as percent FVC, using whichever criterion is larger for
a given patient (ATS, 1979, 1987, 1994; Miller et al., 2005), and it is
not clear why the volume value was excluded from the current cotton
dust standard. OSHA is proposing to include the 2005 ATS/ERS
recommendations for volume, in addition to percentage of FVC, for
consistency with ATS/ERS. Expressing the values as both percentage of
FVC and as a volume, and using whichever approach gives the larger
allowed extrapolated volume, aids in the interpretation of results for
individuals with very small or very large lung volumes. For example,
since 5 percent of FVC will be less than 150 milliliters in individuals
with FVC < 3.00 L, the 150 milliliter criterion would be used for those
patients. But 5 percent of FVC would exceed 150 milliliters in
individuals with FVC > 3.00 L, so in that case the 5 percent of FVC
criterion would be used to evaluate the start-of-test for these
patients.
    As stated above, Appendix D(II)(a)(7) contains criteria for
acceptable repeatability. Editorial changes proposed in Appendix
D(II)(a)(7) are for clarification. Notably, OSHA would remove the word
``three'' because technicians can examine up to eight acceptable curves
to select the two highest FEV1 and FVC values (Miller et al., 2005).
OSHA is also proposing to change ``variation'' to ``difference''
because ``difference'' is the more appropriate mathematical term to use
when comparing only two numbers.
    In Appendix D(II)(a)(7), OSHA also is proposing to revise the
maximum difference between the two largest FVC values and the two
largest FEV1 values of a satisfactory test to 150 milliliters, a change
from the current maximum difference of 10 percent or 100
milliliters, whichever is greater. This proposed revision to the
criteria for acceptable repeatability reflects current ATS/ERS
recommendations (Miller et al., 2005). In 2005, ATS/ERS stated that
many patients are able to achieve repeatability of FEV1 and FVC to
within 150 milliliters (Miller et al., 2005). In 1994, the ATS changed
its repeatability criterion from a volume and a percentage difference
between values to a volume difference only, so that the criterion was
equally stringent for all lung sizes, and also so that it was easy to
compute during the test if hand-measurements were made (ATS, 1994).
OSHA is also proposing editorial changes to make it clear that the
difference between the two largest acceptable FVC values should not
exceed 150 milliliters and the two largest acceptable FEV1 values
should not exceed 150 milliliters.
    The Agency discussed proposed changes to Appendix D(II)(b) above.
    OSHA is proposing to remove Appendix D(III)(b). The paragraph
refers to a NIOSH guideline that specifies an outdated evaluation
criterion of FEV1/FVC ratio of 0.75 percent, and OSHA is unaware of an
updated NIOSH cotton dust guideline that more appropriately compares
the FEV1/FVC ratio to LLN. As noted above, generally accepted practices
use the LLN as the basis for classifying possibly abnormal lung
function because it accounts for age-related declines in lung function
(Townsend, 2011). Appendix D(III)(b) also refers to a table that OSHA
never included in the final Cotton Dust

Standard. That table was most likely Table XII-12 in the NIOSH criteria
document for cotton dust (CDC/NIOSH, 1974). The lack of the table does
not appear to be a pressing issue since no user complained about the
missing table after OSHA promulgated the standard. In addition, the
information is available to users in the NIOSH criteria document.
    The proposed updates to paragraphs D(IV)(a) and (d) would change
``reproducibility'' to ``repeatability'' to conform to the terminology
now used by ATS/ERS (Miller et al., 2005). ``Repeatability'' would have
the same meaning as ``reproducibility.'' OSHA also is proposing to
change the term ``calibration'' in paragraph D(IV)(b) to ``calibration
checks'' for the reasons stated above in the discussion of paragraph
D(I)(j). OSHA also proposes to change ``subject'' to ``patient'' in
paragraph D(IV)(c) for the reason discussed above in the discussion of
paragraph D(II)(a).
References
ATS (American Thoracic Society). Medical Section of the American
Lung Association(1979). ATS Statement--Snowbird Workshop on
Standardization of Spirometry. American Review of Respiratory
Disease, 119, 831-838.
ATS (American Thoracic Society). Medical Section of the American
Lung Association(1987). Standardization of Spirometry--1987 Update.
Am Rev Respir Dis, 136, 1285-1298.
ATS (American Thoracic Society). Medical Section of the American
Lung Association(1994). Standardization of Spirometry--1994 Update.
Am Resp Crit Care Med, 152, 1107-1136.
CDC/NIOSH (Centers for Disease Control/National Institute for
Occupational Safety and Health)(1974). Criteria for a Recommended
Standard: Occupational Exposure to Cotton Dust. Chapter XII: Tables
and Figures. http://www.cdc.gov/niosh/pdfs/75-118f.pdf.
CDC/NIOSH (Centers for Disease Control/National Institute for
Occupational Safety and Health)(2003). Spirometry training guide.
December 1, 2003. http://www.cdc.gov/niosh/docs/2004-154c/pdfs/2004-154c.pdf.
CDC/NIOSH (Centers for Disease Control/National Institute for
Occupational Safety and Health)(2010). Spirometry reference value
calculator. http://www.cdc.gov/niosh/topics/spirometry/RefCalculator.html.
Hankinson, J. L., Odencrantz, J. R. and Fedan, K. B. (1999).
Spirometric reference values from a sample of the general US
population. Am J Respir Crit Care Med., 159, 179-87.
Hankinson, J. H., Kawut, S. M. and Shahar, E. (2010). Performance of
American Thoracic Society-recommended spirometry reference values in
a multiethnic sample of adults. Chest, 137, 138-145.
Knudson, R. J., Slatin, R. C., Lebowitz, M. D. and Burrows, B.
(1976). The maximal expiratory flow-volume curve. Normal standards,
variability, and effects of age. Am Rev Respir Dis, 113, 587-600.
Miller, M. R., Hankinson, J., Brusasco, V., Burgos, F., Casaburi,
R., Coates, A. . . . Wanger, J. (2005). American Thoracic Society/
European Respiratory Society (ATS/ERS) Task Force: Standardisation
of Spirometry. Eur Respir J, 26, 319-33, http://www.thoracic.org/statements/resources/pfet/PFT2.pdf.
OSHA (Occupational Safety and Health Administration) (2013).
Spirometry testing in occupational health programs. Best practices
for healthcare professionals. US Department of Labor. http://www.osha.gov/Publications/OSHA3637.pdf.
Pellegrino, R., Viegi, G., Brusasco, V., Crapo, R. O., Burgos, F.,
Casaburi, R. . . . Wanger, J. (2005). ATS/ERS standardisation of
lung function testing. Interpretative strategies for lung function
tests. Eur Respir J., 26, 948-968.
Redlich, C. A., Tarlo, S.M., Hankinson, J.L., Townsend, M. C.,
Eschenbacher, W. L., Von Essen, S. G., Sigsgaard, T. and Weissman,
D.N. (2014). American Thoracic Society Committee on Spirometry in
the Occupational Setting. Official American Thoracic Society
technical standards: Spirometry in the occupational setting. Am J
Respir Crit Care Med., 189(8), 983-93.
Sanders, C. L., Yesupriya, A. J., and Curtin, L. R. (undated).
Analysis of Population Structure and Stratification in NHANES III
Self-Reported Race/Ethnicities. http://www.cdc.gov/genomics/events/file/print/10year/08_pop_struct_ab.pdf.
Townsend, M. C. (2011). American College of Occupational and
Environmental Medicine (ACOEM) Occupational and Environmental Lung
Disorders Committee. Spirometry in the occupational health setting--
2011 update. J Occup Environ Med, 53, 569-584. http://www.acoem.org/uploadedFiles/Public_Affairs/Policies_And_Position_Statements/ACOEM%20Spirometry%20Statement.pdf.
4. Subpart F of 1915--General Working Conditions, Definitions in 29 CFR
1915.80
    Existing requirements in the sanitation standard for Shipyard
Employment, Sec.  1915.88(j)(1) and (j)(2), specify that employers
must, to the extent reasonably practicable, clean and maintain
workplaces in a manner that prevents vermin infestation. When employers
detect vermin, they must implement and maintain an effective vermin-
control program.
    Paragraph (b)(33) of Sec.  1915.80 defines the term ``vermin'' as
``insects, birds, and other animals, such as rodents and feral cats,
that may create safety and health hazards for employees.'' OSHA
included this definition in the proposal for 29 CFR part 1915, subpart
F, General Working Conditions in Shipyard Employment, on December 20,
2007 (72 FR 72452). In that NPRM, OSHA requested comment on the
proposed vermin-control provisions, as well as examples of vermin that
are present and the types of controls employers use to prevent the
harborage of vermin in shipyard worksites. Id. at 72484. The Agency
cited the hazards associated with exposure to insects, birds, and
rodents in the preamble discussion, but did not mention any hazards
associated with feral cats. Id. The Agency received two comments on
these provisions. One commenter stated that vermin did not pose a
serious hazard to workers and that OSHA should remove these provisions
from the rulemaking (Ex. 197.1, Docket No. OSHA-S049-2006-0675). The
other commenter explained that the number and types of vermin are
greater than OSHA indicated in the proposed discussion, and that ``[t]o
`implement and maintain an effective control program' as required in
this section would probably be very expensive, near impossible or even
illegal'' (Ex. 121.1, Docket No. OSHA-S049-2006-0675). Based on the
general industry sanitation standard that applied to shipyard
employment prior to the subpart F rulemaking, and these limited
comments, the final standard adopted the proposed definition 76 FR
24576 (May 2, 2011). The final rule preamble also did not identify any
hazards associated with feral cats. Id. at 24616.
    Recently, stakeholders raised concerns about including feral cats
in the definition of vermin. These stakeholders argue that while the
possibility exists for feral cats to pose safety and health hazards for
employees (e.g., bites, scratches, fecal contamination), the threat is
minor as the cats tend to avoid human contact. Further, these
stakeholders expressed concern that including the term ``feral cats''
in the definition of vermin encourages cruel and unnecessary
extermination. OSHA recognizes these concerns and, therefore, is
proposing to remove the term ``feral cats'' from the definition in
Sec.  1915.80(b)(33). The revised provision would define the term
``vermin'' as ``insects, birds, rodents and other animals that may
create safety and health hazards for employees.'' The Washington State
Plan also removed the term ``feral cats'' from its definition of
vermin, which is equivalent to OSHA's definition in Sec.
1915.80(b)(33) (WAC<PHONE_NUMBER>1). The proposed revision also is
consistent with the general industry sanitation standard provision on
vermin, which describes vermin as ``rodents, insects, and other
vermin'' (Sec.  1910.141(a)(5)). OSHA does not believe that removing
the term ``feral

cats'' from the definition will reduce worker health and safety, and
notes that feral cats may help reduce the presence of other vermin. To
the extent feral cats pose a safety or health hazard at any particular
shipyard, OSHA would consider the cats to be ``other animals'' under
the standard.
5. Subpart D of 1926--Occupational Health and Environmental Controls,
Medical Services and First Aid in 29 CFR 1926.50
    Under 29 CFR 1926.50, employers must provide specified medical
services and first aid to employees to address serious injuries that
may occur on the job. Existing Sec.  1926.50(f) requires the posting of
telephone numbers of physicians, hospitals, or ambulances for worksites
located in areas where 911 emergency service is not available. OSHA
adopted this requirement in 1979 when 911 emergency service was still a
relatively new concept, and was available only in certain parts of the
country.
    Today, 911 emergency service is available almost everywhere in
North America. In nearly all locations in the United States and Canada,
a 911 call over a land-line telephone will link the caller to an
emergency-dispatch center. In the United States, most localities with
911 service also have so-called ``Enhanced 911,'' which will not only
connect the land-line caller to a dispatcher, but also will
automatically provide the caller's location to the emergency
dispatcher. This automatic-location information is critical for
emergency responders in cases when the 911 caller does not know his/her
exact location, or does not have sufficient time to provide such
information.
    Although the automatic transmission of location information to
emergency dispatchers is customary for land-line telephones, the task
of automatically transmitting location information is more complex when
the emergency call originates from a wireless telephone. Since 1996,
the Federal Communications Commission (FCC) has been phasing in the
requirement that wireless carriers adopt technologies that provide 911
caller-location information. However, carriers are not likely to
complete the phase-in until 2019; consequently, the FCC established a
procedure for exempting carriers from the location requirement. As a
result, in some remote areas of the country, wireless-telephone
carriers still are unable to provide accurate information about the
location of the 911 caller to 911 answering centers. The proposed
revision to Sec.  1926.50(f) updates the 911 service-posting
requirements consistent with the current status of land-line and
wireless-telephone technologies.
    The proposed standard addresses the problem of locating callers,
usually cell-phone callers, in remote areas that do not have automatic-
location capability. In such areas, the proposed standard requires
employers to post in a conspicuous location either the latitude and
longitude of the worksite or other location-identification information
that effectively communicates the location of the worksite. OSHA notes
that when ACCSH discussed this proposal, one member stated that he had
seen a contractor provide latitude and longitude coordinates at a
remote site on stickers given to employees. (ACCSH Aug. 23, 2013
transcript, p. 85.) Employers can obtain information about which
counties, or portions of counties, are exempted from the 911 location
accuracy requirements from FCC PS Docket No. 07-114, which is publicly
available on the FCC's Electronic Comment Filing System (ECFS) Web
page: http://apps.fcc.gov/ecfs/proceeding/view?name=07-114.
    The proposed revision also requires employers to ensure that the
communication system they use to contact ambulance service is
effective. Under existing Sec.  1926.50(e), employers are required to
provide a communication system for contacting ambulance service, or
proper equipment for transportation of an injured person. When using
wireless telephones as a communication system, however, that system's
availability varies based on the location of the caller. If an employer
is relying upon a communication system at a worksite, it must be
effective at the worksite. The Agency is retaining the requirement to
post telephone numbers of physicians, hospitals, or ambulances for
worksites located in areas where 911 emergency service is not
available.
6. Subpart D of 1926--Occupational Health and Environmental Controls,
Gases, Vapors, Fumes, Dusts, and Mists in 29 CFR 1926.55
    The provisions of Sec.  1926.55 establish permissible exposure
limits for numerous toxic chemicals used during construction
activities. These provisions are the construction counterpart to the
general industry standard at Sec.  1910.1000. However, OSHA believes
that several of these provisions, notably paragraph (a), paragraph (c),
and Appendix A to Sec.  1926.55, need clarification. In this regard,
OSHA believes, first, that the use of the phrase ``threshold limit
values'' and the reference to the American Conference of Governmental
Industrial Hygienists (ACGIH), in both paragraph (a) and Appendix A,
are confusing. Since these are OSHA standards, the correct terminology
to express these limits is ``permissible exposure limits,'' and the
proposed revision makes this revision. Moreover, while OSHA originally
adopted these limits from ACGIH recommendations, the limits are OSHA,
not ACGIH, requirements. Therefore, the proposed revision deletes the
references to ACGIH.
    Second, the phrase ``shall be avoided'' in paragraph (a) has an
advisory, rather than a mandatory, connotation and, therefore, is not
appropriate in regulatory text. OSHA is proposing to revise this
language to read, ``An employee's exposure . . . must at no time exceed
the exposure limit given for that substance.''
    Third, the words ``inhalation, ingestion, skin absorption, or
contact'' in paragraph (a) are redundant and confusing. In addition,
the concentrations listed are airborne values, and the standard
addresses exposure through any route. Therefore, the proposed language
deletes these words.
    Fourth, Appendix A is not an appendix but an integral part of the
standard. The proposal, therefore, would acknowledge this relationship
by revising the heading to read, ``Table A.''
    Fifth, Appendix A (proposed Table A) has a column labelled ``Skin
Designation'' under which an ``X'' demarcates certain substances,
although the appendix provides no definition of ``X.'' The 1970 ACGIH
publication, however, notes that the ``X'' identifies substances that
present a dermal hazard. The proposed revision adds a footnote to the
proposed table that clarifies the meaning of this designation.
    Sixth, Appendix A (proposed Table A) has two footnotes designated
by asterisks. However, there are no asterisks in the body of the
appendix referencing these footnotes. The first footnote, consisting of
a single asterisk, says, ``The PELs are 8-hour TWAs unless otherwise
noted; a (C) designation denotes a ceiling limit.'' The second
footnote, consisting of two asterisks, states, ``As determined from
breathing-zone air samples.'' The proposed revision deletes these two
footnotes, and moves the content of the footnotes to proposed
paragraphs (a)(1) and (a)(2) of Sec.  1926.55.
    Finally, OSHA is proposing to correct the cross-references to
OSHA's construction asbestos standard in paragraph (c) and in Appendix
A (proposed Table A). The correct cross reference is: Sec.  1926.1101.

7. Subpart D of 1926--Occupational Health and Environmental Controls,
Process Safety Management of Highly Hazardous Chemicals in 29 CFR
1926.64
    To avoid unnecessary duplication, OSHA is proposing to replace the
entire 31 pages of regulatory text for the Process Safety Management of
Highly Hazardous Chemicals (PSM) Standard for construction at Sec.
1926.64 with a cross reference to the identical general industry
standard at Sec.  1910.119. Other construction standards have similar
cross references to corresponding general industry standards; for
example, the Respiratory Protection Standard for construction at Sec.
1926.103 refers to the general industry Respiratory Protection Standard
at Sec.  1910.134.
    OSHA believes that it is unnecessary to reproduce the entire PSM
Standard in 29 CFR part 1926 because construction employers rarely have
a PSM program at their worksites. The PSM standard affects construction
employers mainly through paragraph (h), Contractors, when they perform
construction work at refineries or chemical-manufacturing plants; in
these cases, the host employer generally will have a copy of the
standard available. Should construction employers require a copy of the
PSM Standard, they can obtain a copy readily at OSHA's Web page.
8. Subpart E of 1926--Personal Protective and Life Saving Equipment,
Criteria for Personal Protective Equipment in 29 CFR 1926.95
    Current Sec.  1926.95(a) of the construction personal protective
equipment (PPE) standard states that PPE ``shall be provided, used, and
maintained in a sanitary and reliable condition wherever it is
necessary.'' PPE must fit properly in order to provide adequate
protection to employees. This can be a particular issue for small-
stature construction workers, including some females, who may not be
able to use standard-size PPE. Section 1926.95(c)'s requirement that
PPE to be ``of safe design'' implicitly precludes the use of ill-
fitting equipment. However, OSHA's construction standard does not
contain an explicit requirement for PPE used in construction to fit
each affected employee, like the general industry PPE standard does
(see 29 CFR 1910.132(d)(1)(iii)).
    Several commenters responding to the request for information for
this rulemaking, including the AFL-CIO and the International Safety
Equipment Association, recommended that the Agency revise its
construction PPE standards to ensure that PPE fits all construction
employees (Exs. OSHA-2012-0007-0012 and -0018).
    Revising Sec.  1926.95(c) to require employers to select PPE that
properly fits each employee will clarify the construction PPE
requirements on this point and make them consistent with general
industry PPE requirements. The Agency believes that providing clear and
explicit language on this point will help ensure employers provide
employees with properly fitting PPE, thereby adequately protecting
employees exposed to hazards requiring PPE. The proposed language,
therefore, merely clarifies, and makes explicit, the requirement that
all PPE used in construction fit properly.
9. Subpart E of 1926--Personal Protective and Life Saving Equipment,
Safety Belts, Lifelines, and Lanyards in 29 CFR 1926.104
    OSHA is proposing to revise the minimum breaking-strength
requirement for lifelines in the Safety belts, lifelines, and lanyards
standard, Sec.  1926.104(c), to 5,000 pounds. This proposed revision
will bring Sec.  1926.104(c) into conformity with the breaking-strength
requirements for lanyards and vertical lifelines in the Fall protection
systems criteria and practices (``Fall Protection'') standard at Sec.
1926.502(d)(9). The Agency concludes that making identical
specifications for the same equipment will avoid confusion and,
thereby, improve compliance.
    The breaking strength of a lifeline is the maximum load that it can
carry without failing or breaking. Under existing Sec.  1926.104(c),
the minimum breaking-strength requirement is 5,400 pounds. As noted by
OSHA in the proposed Fall Protection standard published on November 25,
1986 (51 FR 42718, 42726), the Agency based the 5,400-pound requirement
on the breaking strength of the then-available \3/4\-inch diameter
manila rope used for body-belt systems and not on the forces generated
in a fall. The basis for the revised requirement of 5,000 pounds
adopted in the final Fall Protection standard and proposed now for
Sec.  1926.104(c) is the force generated by a 250-pound employee
experiencing a force 10 times the force of gravity, plus a two-fold
margin of safety. Id. This proposed revision also is consistent with
the most recent ANSI/ASSE standards Z359.1 2007 and A10.32.
10. Subpart G of 1926--Signs, Signals, and Barricades
    The provisions regarding accident prevention signs, signals, and
barricades in 29 CFR 1926.200(g), 201 and 202, subpart G (Signs,
Signals, and Barricades), contain requirements for employers' use of
accident prevention signs, tags, signaling and barricades. These
provisions require that traffic control signs and devices used for the
protection of workers, barricades used for the protection of workers,
and signaling by flaggers and the use of flaggers, including warning
garments worn by flaggers, comply with the mandatory provisions of
either of two versions of Part VI of the MUCTD. Employers may comply
with Part VI of the 1988 Edition, Revision 3, September 3, 1993, MUTCD
(``1988 Edition'') or the Millennium Edition, December 2000 MUTCD
(``Millennium Edition'').
    Several commenters to the SIP-IV Request for Information (77 FR
72781), including the AFL-CIO (OSHA-2012-0007-0012), the Laborers'
Health and Safety Fund of North America (OSHA-2012-0007-0011), and the
American Road and Transportation Builders Association (OSHA-2012-0007-
0025), asked OSHA to update subpart G because the Department of
Transportation (DOT) updated the MUTCD in 2009. These revisions aimed
to expedite traffic, promote uniformity, improve safety, and
incorporate technology advances in traffic control device application
(74 FR 66730). In addition, DOT issued two revisions to the MUTCD in
2012 (77 FR 28455 and 77 FR 28460).
    OSHA is proposing revisions to Subpart G, including an update to
the references to the MUTCD to the November 4, 2009 MUTCD (``2009
Edition''), including Revision 1 dated May 2012 and Revision 2 dated
May 2012. Updating the reference to the 2009 Edition MUTCD will
eliminate confusion as to which edition employers must comply with, and
will inform employers that compliance with DOT regulations will not
conflict with outdated OSHA regulations.
Statement of Reasonable Availability
    OSHA believes that the Manual on Uniform Traffic Control Devices is
reasonably available to interested parties. It is available from the
Federal Highway Administration, United States Department of
Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590;
telephone:<PHONE_NUMBER>; Web site: http://www.fhwa.dot.gov/. In
addition, it is available in the docket for this rulemaking and in
OSHA's docket office for review. If OSHA ultimately finalizes this
rule, the standards will be maintained in OSHA's national and regional
offices for review by the public.
    DOT requires that traffic control signs or devices conform to the
2009 Edition

(see 23 CFR 655.601 to .603). DOT regulations recognize that the MUTCD
is the national standard for all traffic control devices installed on
any street, highway, or bicycle trail open to public travel (Sec.
655.603(a)). DOT requires compliance with the 2009 Edition for all
federal-aid construction areas (Sec.  655.603(d)(3)). In addition, each
State must have a highway safety program that complies with DOT's
designated national standard, and where State or other federal agency
MUTCDs or supplements are required, they shall be in substantial
conformance with the 2009 Edition(23 U.S.C. 402(a); 23 CFR
655.603(b)(1)). Substantial conformance means that the State MUTCD or
supplement shall conform as a minimum to the standard statements
included in the 2009 Edition (Sec.  655.603(b)).
    The differences between OSHA's standards that reference the 1988
Edition and the Millennium Edition MUTCDs and DOT's regulations cause
potential industry confusion and inefficiency, without advancing worker
safety. Accordingly, in Directive CPL 02-01-054, dated October 16,
2012, OSHA stated that it would accept compliance with the 2009 Edition
in lieu of compliance with the 1988 Edition or Millennium Edition
MUTCDs referenced in Sec.  1926.200(g) through its de minimis policy.
    OSHA reviewed the differences between the 1988 Edition, the
Millennium Edition, and the 2009 Edition, and concluded that the more
recently published manual will provide greater employee safety benefits
than the older versions. The 2009 revisions to the MUTCD largely make
the document more accessible and account for advances in technology. A
comparison of the 1988 and 2009 Editions shows few new requirements;
rather, the document is easier to use, with more guidance and
supporting material available. The MUTCD is a complex document
comprised of standards, guidance, and supporting material. Under Sec.
1926.6(a), OSHA's Subpart G provisions incorporate by reference only
the mandatory provisions of the MUTCD, i.e., those provisions
containing the word ``shall'' or other mandatory language, and only
those provisions that affect worker safety with regard to the use of
signs, devices, barricades, flaggers and points of hazard. Often, it
was difficult to locate these provisions, but the 2009 Edition clearly
labels them ``standards.''
    The revisions to the 1988 and Millennium Editions that affect
worker safety are minimal. DOT identified the following areas as
significant revisions that relate to work safety in the final rule (74
FR 66730):
     The needs and control of all road users through a
temporary traffic-control (TTC) zone apply to all public facilities and
private property open to public travel, in addition to highways.
     Federal Highway Administration (FHWA) allows non-compliant
devices on existing highways and bikeways to be brought into compliance
with the current edition of the MUTCD as part of the systematic
upgrading of substandard traffic control devices (and installation of
new required traffic control devices) required pursuant to the Highway
Safety Program, 23 U.S.C. 402(a). If the FHWA establishes a target
compliance date for upgrading such devices, traffic control devices
shall be in compliance by that date. (These target compliance dates
established by the FHWA are shown in Table I-2 of the 2009 Edition.)
     Workers within the public right-of-way must use high-
visibility safety apparel.
     There is a new section titled ``Automated Flagger
Assistance Devices'' (AFAD). These optional devices enable a flagger to
assume a position out of the lane of traffic when controlling road
users through TTC zones.
     New requirements that flaggers shall use a ``STOP/SLOW''
paddle, flag, or AFAD to control road users; the 2009 Edition prohibits
the use of hand movements alone. In the previous editions, it was not
clear that hand signals alone were insufficient.
     All devices used for lane channelization (i.e., directing
vehicles in a particular direction) must be crashworthy.
     Temporary traffic barriers, including their end treatments
(such as an impact attenuator), must be crashworthy.
    There was one major revision to the MUTCD, the 2003 Edition,
between the Millennium Edition and the 2009 Edition. OSHA is providing
a list of the changes between the 2003 Edition and the 2009 Edition in
the record (find 2009 Edition figure changes at regulations.gov in
Docket No. OSHA-2012-0007).
    Section 1926.200(g)--Traffic signs. Current paragraph (g)(1) of
Sec.  1926.200 states, ``[c]onstruction areas shall be posted with
legible traffic control signs at points of hazard.'' Accordingly,
current paragraph (g)(1) does not explicitly require protection by
traffic control devices. However, existing paragraph (g)(1) requires
legible signs at points of hazard and paragraph (g)(2) prohibits misuse
of both signs and devices, by requiring their use to conform to the
MUTCD. Not requiring employers to use, but prohibiting the misuse of,
protective devices at points of hazard is an anomaly that causes
unnecessary confusion. Additionally, current enforcement procedures
allow OSHA to cite an employer for a violation under paragraph (g)(1)
when the employer exposes an employee to a hazard resulting from the
lack of protective devices at points of hazard when the devices (i.e.,
channelization devices and warning devices) would essentially serve as
signs. (CPL 02-01-054, Paragraph XIII.F.2).
    The proposed revision explicitly requires that employers use
traffic control devices at points of hazard. Accordingly, OSHA is
proposing to revise paragraph (g)(1) to require employers to use both
signs and devices at points of hazard. While paragraph (g)(2) would
still cover the misuse of signs and devices, the proposal would revise
this paragraph too. Proposed paragraph 200(g)(2) would clarify that it
covers the design and use of traffic-control devices, and would add a
list of those devices: Signs, signals, markings, barricades, and other
devices. Consistent with these revisions, OSHA would also revise the
headings of Sec.  1926.200 and paragraph (g) by adding the term
``devices'' to these headings. The Agency would retain the requirement
that signs be legible. These changes would clarify the requirements for
signs and devices.
    Section 1926.201--Signaling. The Agency is limiting proposed
revisions to Sec.  1926.201 to the 2009 Edition update discussed above.
    Section 1926.202--Barricades. OSHA is proposing to delete this
section because it would duplicate the requirements in the proposed
revisions to paragraph (g)(1), which also would require the use of
barricades as traffic control devices at points of hazard, and
paragraph (g)(2), which would require that the design and use of
barricades conform to the updated MUTCD.
    Section 1926.203--Definitions applicable to this subpart. OSHA is
proposing to delete this section because the MUTCD defines or describes
most of the words defined in this section (e.g., barricade, signs,
signals). If OSHA retained this section, it would need to update these
definitions to conform to the MUTCD. To the extent that other
provisions of subpart G use the defined words but do not reference the
MUTCD, OSHA believes that providing definitions for these words is
unnecessary because the meanings of the words are either obvious or
defined clearly in applicable consensus standards or in other OSHA
standards;

for example, an adequate description of a ``tag'' is in Sec.
1926.200(h).
    In summary, OSHA is proposing to amend the safety and health
regulations for construction to adopt and incorporate the 2009 Edition
of the MUTCD and clarify the regulatory text. The revisions would
delete the references in Sec. Sec.  1926.200(g)(2) and 1926.201(a) to
the 1988 Edition and Millennium Edition of the MUTCD and insert
references to the 2009 Edition. The revisions also would amend the
regulatory text of paragraphs (g)(1) and (g)(2) of Sec.  1926.200 to
eliminate confusion regarding OSHA's interpretation of the current
text. The proposal deletes Sec.  1926.202 because it duplicates the
requirements in the proposed revisions to Sec.  1926.200(g) and Sec.
1926.203 because the proposed revisions make this section unnecessary.
11. Subpart H of Part 1926--Materials Handling, Storage, Use, and
Disposal, General Requirements for Storage in 29 CFR 1926.250
    Subpart H of OSHA's construction standards governs the handling,
storage, use, and disposal of construction materials on a work site.
Section 1926.250 addresses safe storage of building materials inside
buildings under construction, and Sec.  1926.250(a)(2) requires
employers to post maximum safe load limits of floors in storage areas.
This requirement is important in large buildings under construction
because employers store large, heavy quantities of building materials
in these structures to accommodate construction staging and schedules.
However, requiring employers to post safe load limits is unnecessary in
single-family home construction because employers do not use these
structures for storing heavy materials that could endanger employees
working at lower levels should the floor collapse. Therefore, OSHA is
proposing to exclude detached, single-family residences and townhouses
from the posting requirement.
    OSHA finds that the proposed revision will lessen the compliance
burden of employers without jeopardizing the safety of employees. While
OSHA believes that employers involved in residential-building
construction do not place heavy loads on the floors of these
structures, the proposed revision does not relieve these employers of
the duty to ensure that any loads placed on these floors do not exceed
the maximum safe loads of the floors.
12. Subpart P of 1926--Excavations, Specific Excavation Requirements in
29 CFR 1926.651
    Paragraphs (j)(1) and (j)(2) of Sec.  1926.651 specify requirements
for employers to protect employees from (1) loose rock or soil in
excavations, and (2) excavated or other materials or equipment that
could fall or roll into an excavation. Similar provisions were part of
OSHA's subpart P Excavation standard originally issued under the
Construction Safety Act in 1971 as 29 CFR 1518.651(h) and (i) (36 FR
7340, 7389, April 17, 1971), and OSHA retained them when it revised the
standard in 1989 (54 FR 45894, Oct. 31, 1989). The original 1971
standard placed the burden on employers to ensure employees' safety
from loose rock and soil, and excavated or other materials, in or
around excavations (36 FR 7340, 7389). The 1989 revision added to the
paragraphs (j)(1) and (j)(2) the phrase ``that could pose a hazard''
when referring to loose rock or soil and excavated or other materials
or equipment (54 FR 45894, 45924-45925).
    A number of decisions by administrative law judges of the
Occupational Safety and Health Review Commission (OSHRC) have
interpreted the added phrase in the standard as placing the burden on
OSHA to establish that loose rock or soil or excavated or other
material or equipment poses a hazard to employees before it can
establish a violation of Sec. Sec.  1926.651(j)(1) and (j)(2). (See,
e.g., Black Construction Corp., 19 BNA OSHC 1043 (2000) (ALJ) ((j)(1));
Schaer Development of Central Florida, Inc., No. 11-0371, 2011 WL
3394942 (OSHRC ALJ June 2, 2011) ((j)(2))). These decisions are
contrary to most of OSHA's standards, which presume that a hazard
exists unless the employer can demonstrate otherwise (see, e.g., Austin
Bridge Co., 7 BNA OSHC 1761 (1979)). Moreover, the preamble to the 1989
revision does not indicate that OSHA intended to shift the burden when
it revised the 1971 provisions, but only to clarify the language of the
provisions (54 FR 45894, 45924). Thus, OSHA is proposing to remove the
phrase ``that could pose a hazard'' from Sec.  1926.651(j)(1) and
(j)(2). This revision would clarify, as originally intended, employers
must protect their employees from loose rock or soil and excavated or
other materials or equipment, and that OSHA does not have the burden of
demonstrating the existence of a hazard. Therefore, the standards
presume a hazard unless an employer complied with the protections
required by Sec. Sec.  1926.651(j)(1) and (j)(2).
    Section 1926.651(j)(1) applies to loose rock or soil that can fall
from the face of the excavation. The preamble to the 1989 revision
states that this provision does not apply to all excavations, only
those excavations with loose rock or soil of ``sufficient volume [to]
endanger an employee'' (54 FR 45894, 45924). It is the employer's duty
to assess whether (1) the rock or soil is loose and (2) of sufficient
volume to potentially endanger or injure employees in the excavation.
The proposed revision would remove the phrase ``that could pose a
hazard,'' but would keep the language limiting this provision to loose
rock or soil. As noted in the previous paragraph, removing the language
``that could pose a hazard'' from the provision would preserve the duty
of employers to protect workers from the hazard, while relieving OSHA
of the initial burden of demonstrating that a hazard exists. OSHA also
is proposing to remove the language ``by falling or rolling from an''
from the provision as that language is unnecessary to describe the
hazard; however, OSHA is proposing to retain the term ``excavation
face'' in the provision to clarify the location of the hazard.
    Section 1926.651(j)(2) applies to excavated materials (``spoil
piles'') or other materials or equipment that are on the surface near
the excavation. Employers must keep these piles, and other materials or
equipment, at least two feet from the edge of the excavation, or
prevent them from moving by using retaining devices. Excavated soil is
loose and may present a hazard to workers in an excavation. As
explained in the preamble to the 1989 revision:

    The intent of this requirement is to protect employees from
materials, equipment, and spoil piles which might fall into
excavations. Obviously, materials such as excavated soil and stored
construction supplies can superimpose loads on the walls of an
excavation. Such loads can be the cause of cave-ins and must be
considered when determining what protection is necessary to
safeguard employees.

(54 FR 45894, 45925).
    The proposed revision would remove the phrase ``that could pose a
hazard by falling or rolling into excavations,'' but would retain the
language ``excavated or other materials or equipment,'' from the first
sentence in paragraph (j)(2). The proposed language would keep the
remaining language in the paragraph, including the two-foot rule, and
would remove from OSHA the burden of demonstrating that a hazard
exists, while retaining the employers' duty to protect employees from
the hazards of excavated or other materials or

equipment placed less than 2 feet from the edge of the excavation.
13. Subpart S of 1926--Underground Construction, Caissons, Cofferdams
and Compressed Air, Underground Construction in 29 CFR 1926.800
    Existing regulatory language in Sec.  1926.800(k)(10)(ii) requires
that mobile diesel-powered equipment used in ``other than gassy
operations'' underground be approved by the Mine Safety and Health
Administration (MSHA) in accordance with the provisions of 30 CFR part
32, or that the employer that demonstrate the equipment is ``fully
equivalent'' to MSHA-approved equipment. In 1996, MSHA revoked part 32
and replaced it with updated provisions in 30 CFR part 7, subpart E and
30 CFR 75.1909 Non-permissible diesel-powered equipment; \10\ design
and performance requirements, 75.1910 Non-permissible diesel-powered
equipment; electrical system design and performance requirements, and
75.1911 Fire suppression systems for diesel-powered equipment and fuel
transportation units (61 FR 55411). In 2001, MSHA issued 30 CFR
57.5067, which permits operators to use engines that meet Environmental
Protection Administration (EPA) requirements for engines as an
alternative to seeking MSHA approval under part 7, subpart E (66 FR
5706). The Agency proposes to update the regulatory language in Sec.
1926.800(k)(10)(ii) to cross-reference these updated provisions.
---------------------------------------------------------------------------

    \10\ Non-permissible equipment may not be used in gassy
operations.
---------------------------------------------------------------------------

    OSHA's existing regulatory language in Sec.  1926.800(i)(2)
requires that mobile diesel powered equipment used in ``gassy
operations'' underground be approved by MSHA in accordance with the
provisions of 30 CFR part 36, or that the employer demonstrate that the
equipment is ``fully equivalent'' to MSHA-approved equipment. MSHA has
also updated part 36. However, the reference in Sec.  1926.800(i)(2)
remains correct, and OSHA does not need to change the language to
ensure employers are following MSHA's updated requirements.
    Under 30 CFR 57.5067, all engines used in underground mines must
have an affixed plate evidencing approval of the engine pursuant to 30
CFR part 7, subpart E or meet or exceed the applicable requirements of
the EPA listed in MSHA Table 57.5067-1. To use equipment with non-
permissible engines in non-gassy operations, the employer must ensure
it meets the requirements listed in 30 CFR 75.1909, 75.1910, and
75.1911 for other machine features. If the employer wishes to use
equipment with permissible engines, in gassy operations, it must ensure
the equipment meets the requirements listed in 30 CFR part 36 for other
machine features.
    When MSHA revoked 30 CFR part 32 in 1996, it directed state and
federal agencies that reference 30 CFR part 32 to 30 CFR part 7,
subpart E and 30 CFR 75.1909 and 75.1910 (61 FR 55416). Accordingly,
the proposal substitutes references to those sections for the reference
to part 32. OSHA has also proposed including 30 CFR 75.1911(a)-(i) in
the cross-reference because Sec.  75.1909 requires certain equipment to
have fire suppression systems in accordance with Sec.  75.1911. To
maintain the scope of 29 CFR 800(k)(10)(ii), OSHA is not proposing to
incorporate Sec.  75.1911 paragraphs (j) and (k) (regarding fire
suppression systems on diesel-powered equipment), which are training
and recordkeeping requirements that were not contained in the original
30 CFR part 32. In addition, OSHA is not proposing to incorporate Sec.
75.1911(l), which addresses the interaction of that section with other
MSHA requirements not relevant here. Thus, OSHA has not included
paragraphs (j)-(l) in the cross reference.
    If adopted, these changes will allow employers to use diesel-
powered engines on mobile equipment in underground construction that
meets current MSHA requirements.
    The existing OSHA standard allows employers to use non-MSHA
approved engines if they can demonstrate that they are fully
equivalent. The existing standard and OSHA give no guidance how
employers can make such a demonstration. OSHA believes that the
allowance for engines that meet or exceed EPA requirements in MSHA
Table 57.067-1 is a much more effective and simple way to allow the use
of non-MSHA approved engines. OSHA solicits comments on whether
employers do make such demonstrations and whether the use of EPA
requirements will better effectuate a safe and healthful workplace.