[Federal Register Volume 61, Number 86 (Thursday, May 2, 1996)]
[Rules and Regulations]
[Pages 19547-19548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10433]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. S-060]
RIN 1218-AA71
Personal Protective Equipment for General Industry
AGENCY: Occupational Safety and Health Administration (OSHA); Labor.
ACTION: Final rule; technical amendment.
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SUMMARY: The final rule on personal protective equipment for general
industry was published by OSHA on April 6, 1994 (59 FR 16334). In that
rule, the introductory phrase ``the employer shall ensure'' was removed
from various proposed requirements for employees to wear different
types of protective equipment (final rule Secs. 1910.133, 1910.135, and
1910.136). The general requirement for the employer to select and have
the employees wear appropriate PPE, including any PPE described in
these specific provisions, was retained in Sec. 1910.132. The
employer's obligation to assure compliance with the individual
requirements for particular types of PPE was intended to remain the
same as if the words ``the employer shall ensure'' or similar language
were affixed to each substantive PPE provision in the final rule.
However, OSHA's compliance staff has encountered difficulties in using
Secs. 1910.133, 1910.135, and 1910.136 because they do not explicitly
assign the employer the responsibility for assuring that employees wear
the designated equipment. Therefore, this technical amendment is
necessary to restate that obligation within the text of these
requirements.
DATES: This amendment is effective June 3, 1996.
FOR FURTHER INFORMATION CONTACT: Anne C. Cyr, Acting Director, Office
of Information and Consumer Affairs, Occupational Safety and Health
Administration, U. S. Department of Labor, Room N-3647, 200
Constitution Ave., N. W., Washington, DC 20210. Telephone: (202) 219-
8151.
SUPPLEMENTARY INFORMATION: OSHA's final rule on personal protective
equipment (PPE) for general industry was published on April 6, 1994 (59
FR 16334), and became effective July 5, 1994. The PPE standards require
the employer to assure that each employee wears appropriate equipment
which protects the eyes, head, feet, and hands, from exposure to
hazards in the workplace. Section 1910.132 clearly states that where
such hazards are present, or are likely to be present, the employer has
the obligation both to select proper PPE and to require each affected
employee to wear it.
Sections 1910.133, 1910.135, and 1910.136 require that each
affected employee wear protective equipment for the eyes and face,
head, and feet, respectively, when those parts of the body are exposed
to hazards. The proposed version of each of those sections was prefaced
with the words ``The employer shall ensure that'' the employees wear
the equipment. In the final rule, OSHA deleted the prefatory language
in response to various comments. The preamble to the final rule made
clear that in making these deletions, the Agency intended to make no
change in the substantive requirements between the proposed and final
rules. That is, the employer was to be obligated to require the
employee to wear eye, face, head and foot protection under
Secs. 1910.133, 1910.135, and 1910.136, regardless of whether the words
``the employer shall ensure'' were included in those standards. (see
final rule preamble, 59 FR at 16335.)
The reason for the language change from the proposal was concern by
some commenters that the proposed language would result in their being
held liable for violations of these standards, regardless of any
exculpatory considerations such as employee misconduct. In making the
changes, OSHA emphasized two points: first, that the proposed language
would not have affected an employer's ability to raise defenses to a
citation; and second, that it was the Agency's intention that the
employer's obligations for compliance with standards issued under the
OSH Act be unaffected by the changes from the proposed rule to the
final rule.
Since the final rule was issued, the revised language has caused
difficulty for OSHA's compliance staff with regard to the employer's
obligation to have employees wear PPE. That obligation, while
specifically stated under Sec. 1910.132 for all PPE, is not explicitly
spelled out in the specific provisions of Secs. 1910.133, 1910.135 and
1910.136, for eye and head, face, and foot protection, even though it
was the Agency's clearly stated intention that the obligation apply
there, as well. Accordingly, OSHA has determined that it is necessary
to make a technical amendment to those three sections, to bring them
into line with the stated intention of the Agency in the preamble to
the final rule.
[[Page 19548]]
The current language of Secs. 1910.133, 1910.135, and 1910.136
contains requirements that employees wear the particular PPE addressed
by those sections. However, there is no specific text in any of these
sections that directly addresses the employer and the employer's
responsibilities for compliance. OSHA compliance staff have dealt with
this situation to date by grouping their citations for violations of
Secs. 1910.133, 1910.135, and 1910.136 with their citation under the
general PPE requirement in Sec. 1910.132. Each of these provisions was
intended in the final rule to stand on its own, and the Agency has
determined that a technical amendment is necessary to correct the
problem.
This technical amendment inserts appropriate language into
Secs. 1910.133, 1910.135, and 1910.136 which states the employer's
obligation to ensure that each affected employee wears the specified
types of PPE under these sections as well as under Sec. 1910.132, where
the employer's responsibility in this area is already spelled out. It
should also be noted that this technical amendment does not prevent the
employer who is cited for a PPE violation from raising any affirmative
defenses which would otherwise be applicable.
Under 5 U.S.C. 553 and 29 CFR 1911.5, this constitutes a minor rule
change which does not require public notice and comment. As noted
above, it clarifies an obligation under the specific PPE standards
which already applies to employers under the general rule in
Sec. 1910.132, and implements determinations already made by the Agency
in the preamble to the final rule. Accordingly, further public
participation is not required. However, in order to allow enough time
for information on the technical amendment to be distributed and
implemented by employers, OSHA is making the amendment effective June
3, 1996.
List of Subjects in 29 CFR Part 1910
Eye protection; Face protection; Foot Protection; Hand protection;
Footwear; Hard hats; Head protection; Occupational safety and health;
Occupational Safety and Health Administration; Personal protective
equipment; Safety glasses; Safety shoes.
Authority
This document has been prepared under the direction of Joseph A.
Dear, Assistant Secretary of Labor for Occupational Safety and Health,
U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC
20210.
Accordingly, pursuant to sections 4, 6 and 8 of the Occupational
Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); 5 U.S.C. 553;
Secretary of Labor's Order No. 1-90 (55 FR 9033), and 29 CFR Part 1911,
29 CFR part 1910 is amended as set forth below.
Signed at Washington, D.C., this 15th day of April, 1996.
Joseph A. Dear,
Assistant Secretary of Labor.
PART 1910--[AMENDED]
Subpart I--Personal Protective Equipment
1. The authority citation for subpart I of part 1910 is revised to
read as follows:
Authority: Sections 4, 6 and 8, Occupational Safety and Health
Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order
No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or
1-90 (55 FR 9033), as applicable.
Sections 1910.132, and 1910.138 also issued under 29 CFR part
1911.
Sections 1910.133, 1910.135, and 1910.136 also issued under 29
CFR part 1911 and 5 U.S.C. 553.
Sec. 1910.133 [Amended]
2. Paragraphs (a)(1), (a)(2), (a)(5) of Sec. 1910.133 are amended
by replacing the words ``Each affected employee shall use'' with the
words ``The employer shall ensure that each affected employee uses''.
Sec. 1910.133 [Amended]
3. Paragraph (a)(3) of Sec. 1910.133 is amended by removing the
word ``Each'', adding the words ``The employer shall ensure that each''
in its place at the beginning of the paragraph, and by replacing the
words ``shall wear'' with ``wears'' both places they appear in the
paragraph.
Sec. 1910.135 [Amended]
4. Paragraph (a)(1) of Sec. 1910.135 is amended by replacing the
words ``Each affected employee shall wear protective helmets'' with the
words ``The employer shall ensure that each affected employee wears a
protective helmet''.
Sec. 1910.135 [Amended]
5. Paragraph (a)(2) of Sec. 1910.135 is amended by replacing the
words ``Protective helmets'' with the words ``The employer shall ensure
that a protective helmet'', and by replacing the words ``shall be worn
'' with the words ``is worn.''
Sec. 1910.136 [Amended]
6. Paragraph (a) of Sec. 1910.136 is amended by replacing the words
``Each affected employee shall wear'' with the words ``the employer
shall ensure that each affected employee used.''
[FR Doc. 96-10433 Filed 5-1-96; 8:45 am]
BILLING CODE 4510-26-P
