90 FR 124 pgs. 28362-28366 - Open Fires in Marine Terminals
Type: PRORULEVolume: 90Number: 124Pages: 28362 - 28366
Pages: 28362, 28363, 28364, 28365, 28366Docket number: [Docket No. OSHA-2025-0007]
FR document: [FR Doc. 2025-11627 Filed 6-30-25; 8:45 am]
Agency: Labor Department
Sub Agency: Occupational Safety and Health Administration
Official PDF Version: PDF Version
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1917
[Docket No. OSHA-2025-0007]
RIN 1218-AD51
Open Fires in Marine Terminals
AGENCY:
Occupational Safety and Health Administration (OSHA), Labor.
ACTION:
Proposed rule; request for comments.
SUMMARY:
This proposed rule removes OSHA's Open Fires in Marine Terminals Standard from the Code of Federal Regulations.
DATES:
Comments and other information, including requests for a hearing, must be received on or before September 2, 2025.
Informal public hearing: OSHA will schedule an informal public hearing on the rule if requested during the comment period. If a hearing is requested, the location and date of the hearing, procedures for interested parties to notify the agency of their intention to participate, and procedures for participants to submit their testimony and documentary evidence will be announced in the Federal Register .
ADDRESSES:
Written comments: You may submit comments and attachments, identified by Docket No. OSHA-2025-0007, electronically at https://www.regulations.gov, which is the Federal e-Rulemaking Portal. Follow the instructions online for making electronic submissions.
[top] Instructions: All submissions must include the agency's name and the docket number for this rulemaking (Docket No. OSHA-2025-0007). When uploading multiple attachments to https://www.regulations.gov, please number all of your attachments because https://www.regulations.gov will not automatically number the attachments. This will be very useful in identifying all attachments. For example, Attachment 1-title of your document, Attachment 2-title of your document,
All comments, including any personal information you provide, are placed in the public docket without change and may be made available online at https://www.regulations.gov. Therefore, OSHA cautions commenters about submitting information they do not want made available to the public or submitting materials that contain personal information (either about themselves or others), such as Social Security Numbers and birthdates.
Docket: The docket for this rulemaking (Docket No. OSHA-2025-0007) is available at https://www.regulations.gov, the Federal eRulemaking Portal. Most exhibits are available at https://www.regulations.gov; some exhibits ( e.g., copyrighted material) are not available to download from that web page. However, all materials in the dockets are available for inspection at the OSHA Docket Office.
FOR FURTHER INFORMATION CONTACT:
For press inquiries: Contact Frank Meilinger, Director, OSHA Office of Communications, Occupational Safety and Health Administration; telephone: (202) 693-1999; email: meilinger.francis2@dol.gov.
General information and technical inquiries: Contact Andrew Levinson, Director, OSHA Directorate of Standards and Guidance, Occupational Safety and Health Administration; telephone: (202) 693-1950; email: osha.dsg@dol.gov.
Copies of this Federal Register notice: Electronic copies are available at https://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 https://www.osha.gov. A "100-word summary" is also available on https://www.regulations.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Legal Authority and Preliminary Findings
III. Background
IV. Explanation of the Proposed Removal of the Open Fires in Marine Terminals Standard From the Code of Federal Regulations
V. Preliminary Economic Analysis
VI. Additional Requirements
VII. Authority and Signature
VIII. Regulatory Text
I. Executive Summary
The intent of this proposed rule is to remove the Open Fires in Marine Terminals Standard, 29 CFR 1917.21 ("Open Fires Standard"), from the Code of Federal Regulations because that standard is no longer necessary to protect employees working in marine terminals from occupational safety and health hazards. This is a deregulatory action per Executive Order 14192, "Unleashing Prosperity Through Deregulation" (90 FR 9065, Feb. 6, 2025).
II. Legal Authority and Preliminary Findings
The purpose of the Occupational Safety and Health Act (29 U.S.C. 651 et seq. ) ("the Act" or "the OSH Act") is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources" (29 U.S.C. 651(b)). To achieve this goal Congress authorized the Secretary of Labor ("the Secretary") to promulgate standards to protect workers, including the authority "to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce" (29 U.S.C. 651(b)(3); see also 29 U.S.C. 654(a)(2) requiring employers to comply with OSHA standards), 29 U.S.C. 655(a) (authorizing summary adoption of existing consensus and established federal standards within two years of the Act's enactment), and 29 U.S.C. 655(b) (authorizing promulgation, modification or revocation of standards pursuant to notice and comment)). An occupational safety and health standard is ". . . a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment" (29 U.S.C. 652(8)).
Before OSHA may promulgate a health or safety standard, it must find that a standard is reasonably necessary or appropriate within the meaning of section 652(8) of the OSH Act. As required by the OSH Act, OSHA originally determined that the Standards for Marine Terminals would substantially reduce a significant risk of material harm when promulgating those standards (see 48 FR 30886, 30887 (July 5, 1983)). Once OSHA makes a general significant risk finding in support of a standard, the next question is whether a particular requirement is reasonably related to the purpose of the standard as a whole. See Asbestos Info. Ass'n/N. Am. v. Reich, 117 F.3d 891, 894 (5th Cir. 1997); Forging Indus. Ass'n v. Sec'y of Labor, 773 F.2d 1436, 1447 (4th Cir. 1985); United Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1237-38 (D.C. Cir. 1980) (" Lead I" ).
A standard is technologically feasible if the protective measures it requires already exist, can be brought into existence with available technology, or can be created with technology that is reasonably expected to be developed ( see Am. Iron and Steel Inst. v. OSHA, 939 F.2d 975, 980 (D.C. Cir. 1991)). Courts have also interpreted technological feasibility to mean that a typical firm in each affected industry or application group will reasonably be able to implement the requirements of the standard in most operations most of the time ( see, e.g., Public Citizen v. OSHA, 557 F.3d 165, 170-71 (3d Cir. 2009) (citing Lead I, 647 F.2d at 1272)).
Because this proposed rule would remove an existing OSHA requirement from the CFR, OSHA anticipates employers would have no technological issues complying with the rule. Accordingly, the agency preliminarily finds that the proposed rule is technologically feasible for affected employers.
In determining economic feasibility, OSHA must consider the cost of compliance in an industry rather than on individual employers. In its economic analyses, OSHA "must construct a reasonable estimate of compliance costs and demonstrate a reasonable likelihood that these costs will not threaten the existence or competitive structure of an industry, even if it does portend disaster for some marginal firms" ( Am. Iron and Steel Inst., 939 F.2d at 980, quoting Lead I, 647 F.2d at 1272). OSHA has preliminarily determined that this proposed rule is economically feasible because this action is deregulatory and imposes no additional costs. OSHA's economic analysis of the cost savings are presented in Section V.
The Administrative Procedures Act directs agencies to include in each rule adopted "a concise general statement of [the rule's] basis and purpose" (5 U.S.C. 553(c)); cf. 29 U.S.C. 655(e) (requiring the Secretary to publish a "statement of reasons" for any standard promulgated)). This notice satisfies this concise statement requirement.
III. Background
[top] OSHA first adopted the Open Fires Standard in 1983, as part of its Marine Terminals rulemaking, to address serious occupational safety and health hazards in the marine terminals industry (see 48 FR 30886 (July 5, 1983)). The Open Fires Standard prohibits open fires and fires in drums and similar containers (29 CFR 1917.21). The standard is one of several
IV. Explanation of the Proposed Removal of the Open Fires in Marine Terminals Standard From the Code of Federal Regulations
OSHA is proposing to remove the Open Fires Standard from the CFR because that standard is no longer necessary to protect employees working in marine terminals from occupational safety and health hazards. When OSHA first promulgated the Marine Terminals Standards in 1983, affected employees made open fires in drums or similar containers to stay warm when they were exposed to the elements. It is OSHA's understanding that this is no longer a typical practice. Because of containerization and technology improvements in the marine terminals industry, employees today are not exposed to the elements as they once were. Moreover, to the extent employees are still exposed to the elements, they can wear heated jackets, which were not available when the Open Fires Standard was issued. Moreover, OSHA has not issued a citation for a violation of this standard since 2012 or earlier. Therefore, consistent with Executive Order (E.O.) 14219, "Ensuring Lawful Governance and Implementing the President's `Department of Government Efficiency' Deregulatory Initiative," E.O. 14192, "Unleashing Prosperity Through Deregulation," and the goal of significantly reducing the private expenditures required to comply with Federal regulations to secure America's economic prosperity and national security and the highest possible quality of life for each citizen, OSHA preliminarily concludes that removing the Open Fires Standard from the CFR will reduce the compliance burden on the regulated community, without compromising worker safety.
Questions
1. Is the Open Fires Standard still necessary to protect employees working in marine terminals from occupational safety and health hazards? Will removal of the Open Fires Standard from the CFR compromise worker safety? Please explain.
2. Is OSHA's understanding correct that employees are no longer exposed to the elements as they once were in the marine terminals industry because of containerization and technology improvements? Please explain.
3. Is OSHA's understanding correct that, to the extent employees are exposed to the elements, they now can wear heated jackets, which were not available when the Open Fires Standard was issued? Please explain.
4. Even if OSHA's understanding regarding questions 2 and 3 is correct, is there some other reason why employees in the marine terminals industry would want to make open fires and fires in drums or similar containers? Please explain.
V. Preliminary Economic Analysis
Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1532(a)) require that OSHA estimate the benefits, costs, and net benefits of regulations, and analyze the impacts of certain rules that OSHA promulgates. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.
This proposed rule is not a "significant regulatory action" under Executive Order 12866 or UMRA, or a "major rule" under the Congressional Review Act (5 U.S.C. 801 et seq. ). Neither the benefits nor the costs of this proposed rule would exceed $100 million in any given year. This proposal would, however, result in a net cost savings for employers in marine terminal and longshoring operations, which are the only industries throughout OSHA's jurisdiction affected by the rescission of 29 CFR 1917.21.
Furthermore, as discussed below in Review Under the Regulatory Flexibility Act, because the proposed rule would not impose any costs, OSHA certifies that it would not have a significant economic impact on a substantial number of small entities.
OSHA estimates that there are currently 2,617 establishments in maritime affected by OSHA standards addressing open fires (U.S. Census Bureau, 2024). These establishments are found in the following industries: Port and Harbor Operations (NAICS 488310), Marine Cargo Handling (NAICS 488320), Navigational Services to Shipping (NAICS 488330), Other Support Activities for Water Transportation (NAICS 488390). The proposed rescission of the standards addressing open fires will, among other things, eliminate the time necessary for new establishments and newly hired occupational health and safety specialists at existing establishments to familiarize themselves with the requirements found in 29 CFR 1917.21. Based on an average annual establishment entry rate of 10 percent (U.S. Census Bureau, 2025), an average hire rate of 43.9 percent (BLS, 2025), and 10 minutes less time spent on regulatory familiarization at a loaded hourly wage rate for an occupational health and safety specialist of $65.41, OSHA estimates that this deregulatory action would mean $15,377 in cost savings annually.
OSHA also estimated the impacts under an alternative scenario where only new entrants into the industry would be affected by the rescission of 29 CFR 1917.21. This scenario assumes that for non-entrant ( i.e., existing) establishments within an industry, the familiarization time saved for newly hired occupational health and safety specialists is negligible due to knowledge of the requirements in section 1917.21 retained institutionally within the business entity by team leaders and other senior production staff. For this scenario, costs savings that result from rescinding section 1917.21 would be $2,853 annually.
[top] A third impacts scenario, one that is likely closer to the real-world environment for the retention and communication of safety and health information in most workplaces, would be the midpoint of the two extreme cases described above. Under this mid-range scenario, approximately half of affected establishments would retain staff whose complete knowledge of the rescinded standards would substitute for the familiarization time needed by the newly hired health and safety specialists. Viewed alternatively, under this mid-range scenario, all affected establishments retain veteran staff who can briefly inform the new safety and health specialist of the status of standards such as section 1917.21 in less time (roughly five minutes) than would be necessary in the absence of
OSHA's estimate of cost savings may underestimate total cost savings if the elimination of the labor burden for regulatory familiarization extends to the avoidance of unnecessary safety training of employees.
OSHA requests public comment on this analysis of the cost savings for marine terminal and longshoring operations from the rescission of the standards addressing open fires in 29 CFR 1917.21. Specifically, OSHA seeks comments and data on the following questions:
1. How much do employers expect to save as a consequence of the rescission of requirements in the current standard?
2. How much familiarization time would employers who are new entrants to the market expect to save based on the revisions?
3. Are there any benefits for worker protection that can be anticipated from this proposed change?
4. Are there any costs for employers that would result from this change that OSHA has not considered?
Sources
Bureau of Labor Statistics (BLS). (2025). Occupational Employment and Wage Statistics-May 2024 (Released April 2, 2025). Available at https://www.bls.gov/oes/tables.htm (Accessed April 11, 2025)
U.S. Census Bureau. (2024). County Business Patterns 2022 (Released June 27, 2024). Available at https://www.census.gov/programs-surveys/cbp.html (Accessed July 17, 2024)
U.S. Census Bureau. (2025). Business Dynamics Statistics. Available at https://bds.explorer.ces.census.gov/?xaxis-id=year&xaxis-selected=2018,2019,2020,2021,2022&group-id=none&measure-id=estabs_entry_rate&chart-type=bar (Accessed June 6, 2025)
Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis (FRFA) for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities.
OSHA reviewed this proposed rescission under the provisions of the Regulatory Flexibility Act. This rule eliminates a burdensome regulation. Therefore, OSHA preliminarily concludes that the rescission would not have a "significant economic impact on a substantial number of small entities," and that the preparation of an IRFA is not warranted. OSHA will transmit this certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).
VI. Additional Requirements
A. Requirements for States With OSHA-Approved State Plans
Under section 18 of the OSH Act (29 U.S.C. 651 et seq. ), Congress expressly provides that States may adopt, with Federal approval, a plan for the development and enforcement of occupational safety and health standards that are "at least as effective" as the Federal standards in providing safe and healthful employment and places of employment (29 U.S.C. 667). OSHA refers to these OSHA-approved, State-administered occupational safety and health programs as "State Plans."? 1
Footnotes:
1 ?Of the 29 States and U.S. territories with OSHA-approved State Plans, 22 cover public and private-sector employees: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. The remaining six States and one U.S. territory cover only State and local government employees: Connecticut, Illinois, Maine, Massachusetts, New Jersey, New York, and the Virgin Islands.
When Federal OSHA promulgates a new standard or a more stringent amendment to an existing standard, State Plans must either amend their standards to be identical to, or "at least as effective as," the new Federal standard or amendment, or show that an existing State Plan standard covering this issue is "at least as effective" as the new Federal standard or amendment (29 CFR 1953.5(a)). However, when OSHA promulgates a new standard or amendment that does not impose additional or more stringent requirements than an existing standard, State Plans do not have to amend their standards, although they may opt to do so. OSHA has preliminarily determined this proposed rule does not impose additional or more stringent requirements than the existing standard, and therefore State Plans are not required to amend their standards. OSHA seeks comment on this assessment of its proposal.
B. OMB Review Under the Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq. ) defines "collection of information" to mean "the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format" (44 U.S.C. 3502(3)(A)). Under the PRA, a Federal agency cannot conduct or sponsor a collection of information unless it is approved by OMB under the PRA and the agency displays a currently valid OMB control number (44 U.S.C. 3507). Also, notwithstanding any other provisions of law, no person shall be subject to penalty for failing to comply with a collection of information if the collection of information does not display a currently valid OMB control number (44 U.S.C. 3512(a)(1)). The process for OMB approval is found in 5 CFR part 1320. This proposed rule would impose no new information collection requirements and does not affect the currently approved information collections in Marine Terminals (29 CFR pt. 1917) and Longshoring (29 CFR pt. 1918) (OMB Control Number 1218-0196). Accordingly, OMB approval is not required for this proposed rule.
C. Review Under Executive Order 12866
E.O. 12866, "Regulatory Planning and Review," 58 FR 51735 (Oct. 4, 1993), requires agencies, to the extent permitted by law, to (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits; (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.
[top] Section 6(a) of E.O. 12866 also requires agencies to submit "significant regulatory actions" to the Office of Information and Regulatory Affairs (OIRA) for review. OIRA has determined that this proposed rule would not constitute a "significant regulatory action" under section 3(f) of E.O. 12866. Accordingly, this proposed rule was not submitted to OIRA for review under E.O. 12866.
D. Environmental Impacts/National Environmental Policy Act (NEPA)
OSHA has reviewed this proposed rule according to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq. ), as amended by the Fiscal Responsibility Act of 2023 (Pub. L. 118-5, 321, 137 Stat. 10), and the Department of Labor's NEPA procedures (29 CFR part 11). OSHA has preliminarily determined that this proposed rule will have no impact on the quality of the human environment.
E. Other Statutory and Executive Order Considerations
OSHA has considered its obligations under the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ) and the Executive Orders on Consultation and Coordination With Indian Tribal Governments (E.O. 13175, 65 FR 67249 (Nov. 6, 2000)), Federalism (E.O. 13132, 64 FR 43255 (Aug. 10, 1999)), and Protection of Children From Environmental Health Risks and Safety Risks (E.O. 13045, 62 FR 19885 (Apr. 23, 1997)). Given that this is a proposed deregulatory action that involves the removal of requirements, that OSHA does not foresee economic impacts of $100 million or more, and that the action does not constitute a policy that has federalism or tribal implications, OSHA has determined that no further agency action or analysis is required to comply with these statutes and executive orders. Furthermore, OSHA has determined that this proposed rule is consistent with the policies and directives outlined in E.O. 14192, "Unleashing Prosperity Through Deregulation" and is an Executive Order 14192 deregulatory action.
List of Subjects in 29 CFR Part 1917
Health, Longshore and harbor workers, Occupational safety and health.
VII. Authority and Signature
This document was prepared under the direction of Amanda Laihow, Acting Assistant Secretary of Labor for Occupational Safety and Health. It is issued under the authority of sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, and 657); section 41 of the Longshore and Harbor Worker's Compensation Act (33 U.S.C. 941); Secretary of Labor's Order No. 8-2020 (85 FR 58383); and 29 CFR part 1911.
Dated: June 20, 2025.
Amanda Laihow,
Acting Assistant Secretary of Labor for Occupational Safety and Health.
VIII. Regulatory Text
Proposed Amendments
For the reasons set forth in the preamble, OSHA is amending 29 CFR part 1917 as follows:
PART 1917-MARINE TERMINALS
1. The authority for part 1917 continues to read as follows:
Authority:
33 U.S.C. 941; 29 U.S.C. 653, 655, 657; Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), 5-2007 (72 FR 31160), 4-2010 (75 FR 55355), 1-2012 (77 FR 3912), or 8-2020 (85 FR 58393), as applicable; and 29 CFR part 1911.
Sections 1917.28 and 1917.31 also issued under 5 U.S.C. 553.
Section 1917.29 also issued under 49 U.S.C. 1801-1819 and 5 U.S.C. 553.
Subpart B-Marine Terminal Operations
§?1917.21 [Reserved]
2. Remove and reserve §?1917.21.
[FR Doc. 2025-11627 Filed 6-30-25; 8:45 am]
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