E9-21360. Updating OSHA Standards Based on National Consensus Standards; Personal Protective Equipment

AGENCY:

Occupational Safety and Health Administration (OSHA), Department of Labor.

ACTION:

Final rule.

SUMMARY:

OSHA is issuing this final rule to revise the personal protective equipment (PPE) sections of its general industry, shipyard employment, longshoring, and marine terminals standards regarding requirements for eye- and face-protective devices, head protection, and foot protection. OSHA is updating the references in its regulations to recognize more recent editions of the applicable national consensus standards, and is deleting editions of the national consensus standards that PPE must meet if purchased before a specified date. In addition, OSHA is amending its provision that requires safety shoes to comply with a specific American National Standards Institute (ANSI) standard, and a provision that requires filter lenses and plates in eye-protective equipment to meet a test for transmission of radiant energy specified by another ANSI standard. In amending these paragraphs, OSHA will require this safety equipment to comply with the applicable PPE design provisions. These revisions are a continuation of OSHA's effort to update or remove references to specific consensus and industry standards located throughout its standards.

DATES:

This final rule will become effective on October 9, 2009.

The incorporation by reference of specific publications listed in this final rule is approved by the Director of the Federal Register as of October 9, 2009.

FOR FURTHER INFORMATION CONTACT:

General information and press inquiries: Contact Jennifer Ashley, Director, OSHA Office of Communications, Room N-3647, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: [phone].

Technical inquiries: Contact Ted Twardowski, Directorate of Standards and Guidance, Room N-3609, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: [phone]; fax: [phone].

Copies of this Federal Register notice. Electronic copies of this Federal Register notice are available at http://www.regulations.gov. This Federal Register notice, as well as news releases and other relevant information, are also available at OSHA's Web page at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Summary and Explanation of the Final Rule

A. General Background

B. Revisions to the PPE Provisions of the OSHA Standards

C. Discussion of Comments and Hearing Testimony

D. Summary of the Final Rule

II. Procedural Determinations

A. Legal Considerations

B. Final Economic Analysis and Regulatory Flexibility Act Certification

C. OMB Review Under the Paperwork Reduction Act of 1995

D. Federalism

E. State-Plan States

F. Unfunded Mandates Reform Act

III. Authority and Signature

I. Summary and Explanation of the Final Rule

A. General Background

As discussed in a previous Federal Register document (69 FR 68283), OSHA is undertaking a series of projects to update its standards to incorporate the latest versions of national consensus and industry standards. These projects include updating or revoking national consensus and industry standards referenced in existing OSHA standards, updating regulatory text of standards adopted directly by OSHA from the language of outdated consensus standards, and, when appropriate, replacing specific references to outdated national consensus and industry standards with performance-oriented requirements.

On May 17, 2007, OSHA published a Notice of Proposed Rulemaking (NPRM) (72 FR 27771) entitled “Updating OSHA Standards Based on National Consensus Standards; Personal Protective Equipment.” The NPRM set July 16, 2007, as a deadline for submitting comments and for requesting an informal public hearing on the proposed rule. The Agency received approximately 25 comments and 4 requests for an informal public hearing. OSHA then published a Federal Register notice scheduling an informal public hearing for December 4, 2007 (72 FR 50302). The informal public hearing took place as scheduled, and OSHA received testimony from nine witnesses. Thomas M. Burke, Administrative Law Judge, presided at the hearing. At the end of the hearing, Judge Burke set deadlines of January 3, 2008, for submission of post-hearing comments, and February 4, 2008, for the submission of final summations and briefs. Judge Burke closed and certified the record for this rulemaking on June 23, 2008.

B. Revisions to the PPE Provisions of the OSHA Standards

1. Background of OSHA's PPE Standards

Subpart I of OSHA's general industry standards contains design requirements for eye- and face-protective devices, head protection, and foot protection. (See 29 CFR 1910.133, 1910.135, 1910.136.) OSHA has similar requirements in subpart I of part 1915 (Shipyard Employment), subpart E of part 1917 (Marine Terminals), and subpart J of part 1918 (Longshoring). These rules require that the specified PPE comply with national consensus standards incorporated by reference into the OSHA standards, unless the employer demonstrates that a piece of equipment is as effective as equipment that complies with the incorporated national consensus standard. (See, e.g., 29 CFR 1910.133(b)(1).) ^[1] These design provisions are part of comprehensive requirements to ensure that employees use PPE that will protect them from hazards in the workplace.

The incorporated ANSI standards are over a decade old and, in some instances, are two decades old. Over this period, ANSI updated all of the standards, and, in one instance (i.e., the ANSI Z41 standard for protective footwear), ANSI withdrew its standard when ASTM adopted a national consensus standard for protective footwear. In response, manufacturers began manufacturing PPE that conforms with the updated ANSI and ASTM standards. As a result, employers and employees have difficulty obtaining PPE manufactured in accordance with the national consensus standards incorporated earlier in OSHA standards. OSHA estimates that these types of PPE last about two to four years. (See OSHA Docket S-060, “Preliminary Regulatory Impact & Regulatory Flexibility Analysis of the Personal Protective Equipment Standard,” Table IV-2 (U.S. Department of Labor, OSHA, Office of Regulatory Analysis, June 30, 1989).)

2. Updating OSHA's PPE Standards

In the past, OSHA updated its PPE standards by revising them to incorporate recent versions of the national consensus standards, while leaving the earlier versions of these national consensus standards in the regulatory text. (See 59 FR 16360 (April 6, 1994).) This action temporarily alleviated the problem of trying to obtain PPE manufactured in accordance with an earlier version of a national consensus standard, but it ensured that the problem would arise again as the later versions of the standards superseded the newly incorporated versions. To alleviate this problem, OSHA proposed to replace the references to specific national consensus standards with a performance-oriented “good-design” requirement. (72 FR 27771.) The proposed rule provided guidance on how employers could meet the good-design requirement. It also included nonmandatory appendices listing those national consensus standards that OSHA had determined were good-design standards that would meet the good-design requirement. To ensure that the appendices remained useful in the future, OSHA promised in the proposal to use direct-final rulemaking to incorporate future editions of consensus standards into the nonmandatory appendices. The proposed rule also deleted older, out-of-date consensus standards that OSHA had incorporated into its standards to allow employers to continue using PPE they had purchased before a specified date. OSHA noted that the proposed rule did not alter the duties of employers because it only provided employers with additional options for meeting their duty under the design-criteria provisions of OSHA's existing PPE standards.

The proposed rule also deleted a paragraph in § 1910.94 and another paragraph in § 1910.252, which reference, respectively, specific versions of American National Standards Institute (ANSI) standards on foot protection and eye- and face-protective devices. OSHA explained that, in deleting these references, the relevant design provisions of the general industry PPE standard would apply to these types of PPE.

C. Discussion of Comments and Hearing Testimony

1. Updating References to Consensus Standards

Commenters universally agreed with OSHA's proposal to update the references to national consensus standards. However, a significant majority, including employee representatives, PPE manufacturers, and safety professionals opposed the proposed replacement of specific references to national consensus standards in the regulatory text with a performance-oriented good-design requirement and a nonmandatory appendix. (See, e.g., AFL-CIO (OSHA-2007-0044-0023); U.S. Safety (Ex. -0024); International Safety Equipment Association (ISEA) (Ex. -0025); American Society of Safety Engineers (ASSE) (Ex. -0029); see also 3M Company (Ex. -0026) (expressing support for performance-oriented approach, but recommending that appendices be mandatory and that OSHA only list ANSI and ASTM standards as good-design standards at this time).) A few trade associations representing employers generally supported the proposal's performance-oriented approach, but also noted the widespread use of PPE that meets ANSI and ASTM standards and, in one case, the need to ensure that other “good design standards” were developed using a process comparable to the processes ANSI and ASTM use. (See National Grain and Feed Association and Grain Elevator and Processing Society (Ex. OSHA-2007-0044-0027); American Bakers Association (Ex. -0028); National Automobile Dealers Association (NADA) (Ex. -0047; see, also, International Association of Drilling Contractors (Ex. -0022) (expressing concerns with the proposal, but apparently implicitly endorsing the performance-oriented approach).) Three government agencies commented on the proposal. All three supported updating the out-of-date standards. (See Kentucky Department of Labor, Office of Occupational Safety and Health (Ex. OSHA-2007-0044-0021); North Carolina Department of Labor, Occupational Safety and Health Division (Ex. -0034); NIOSH (Ex. -0037)). All witnesses who participated at the hearing testified in opposition to the proposed good-design approach. (See Ex. OSHA-2007-0044-0059.)

In general, the commenters noted that the proposal was confusing, (e.g., AFL-CIO (Ex. OSHA-2007-0044-0023)), that it removed a “baseline” level of protection from the standards, (see, e.g., ISEA (Ex. -0025)), that the criteria defining a good-design standard were too vague and subjective, (see, e.g., ASSE, Tr. at 84-85), and that the proposal could result in less employee protection (see, e.g., U.S. Safety (Ex. -0024)). In addition, the AFL-CIO asserted that OSHA could alleviate the administrative and practical difficulties associated with outdated national consensus standards by updating the OSHA standards through direct-final rulemaking. (See Ex. OSHA-2007-0044-0023; Tr. 95-96.)

OSHA believes that, for the most part, these and other criticisms of the proposal represent a misunderstanding of the proposal or overstate the effects of the proposed good-design requirement. For example, numerous commenters noted that the proposed rule eliminated a baseline level of PPE protection. (See, e.g., ISEA (Ex. OSHA-2007-0044-0025) and ASSE (Tr. at 84-85).) These concerns appear to overlook the provision in the proposal that required the PPE to provide protection equivalent to or greater than PPE that was constructed in accordance with one of the national consensus standards listed in the nonmandatory appendices, which included national consensus standards already incorporated into the OSHA standards. (See, e.g., proposed § 1910.133(b)(2) in 72 FR 27775.)

Several commenters expressed concern that allowing employers to select PPE that provided protection equivalent to PPE constructed in accordance with a listed ANSI standard was subject to abuse. (See ISEA (Tr. at 40-41); ASSE (Ex. OSHA-2007-0044-0029) and (Tr. at 79).) Although OSHA cannot rule out the possibility that employers could incorrectly claim that PPE constructed in accordance with a non-ANSI design standard provides an appropriate level of protection, the Agency notes that, in the case of the current general industry and shipyard employment PPE provisions, employers could make the same claim. (See, e.g., 29 CFR 1910.133(b)(2).)

Finally, a few commenters remarked that employee protection may decrease because OSHA, at a later date, could approve, for inclusion in the nonmandatory appendices, a design standard that did not provide an adequate level of protection. (See, e.g., ASSE (Ex. OSHA-2007-0044-0029, and Tr. at 79).) These commenters, however, did not provide a basis for this comment. Moreover, OSHA notes that such action would be counter to its long-standing policy to adopt new requirements only if they provide employees with equivalent or increased protection. In any event, adding a design standard to the nonmandatory appendices would be subject to notice-and-comment rulemaking.

OSHA believes that the widespread opposition to the good-design provision indicates possible misapplication of the standard if adopted as proposed. In addition, the widespread support for continued incorporation of national consensus standards convinces OSHA that using direct-final rulemaking to update references to national consensus standards may alleviate the administrative and practical problems that arise when OSHA standards require compliance with outdated national consensus standards.^[2] Accordingly, OSHA is not adopting the proposed good-design approach.

Instead, OSHA revised the text of the final rules to allow employers to meet the design requirements of its PPE standards by using PPE constructed in accordance with any of three national consensus standards—the two most recent national consensus standards and the national consensus standard incorporated in the current OSHA standards. Additionally, the final rules maintain the option employers currently have to use PPE that is not manufactured in accordance with one of the listed consensus standards if the employer can demonstrate that the PPE it selects is as protective as PPE constructed in accordance with one of the incorporated consensus standards. The final regulatory text responds to the numerous requests that OSHA continue to incorporate, and require compliance with, specific national consensus standards. (See, e.g., Tr. at 44-45 and 95-97; Exs. OSHA-2007-0044-0023 and -0048).)

2. Miscellaneous Comments

ISEA, in its written comments, recommended that OSHA amend Appendix B to § 1910, subpart I (“Selection Guidelines for Head Protection”) to conform to the recent edition of ANSI Z89.1 (see Ex. OSHA-2007-0044-0025). Beginning with the ANSI Z89.1-1997 standard, ANSI updated the classification system for protective helmets. In this edition and in the subsequent edition, ANSI classified the type and class of protective helmets differently than it did in the current OSHA-incorporated 1986 edition. Consequently, ANSI no longer uses the old designations—Type 1 (hats) and Type 2 (caps). The electrical insulation classifications of Class G (General—tested to 2200V), Class E (Electrical—tested to 20,000V), and Class C (Conductive—no electrical protection) replace former Classes A, B, and C, respectively, to make the designations more user-friendly. Therefore, the Agency is amending paragraph 9 of nonmandatory Appendix B to § 1910, subpart I by adding a discussion clarifying the relationship between the old classification system and the new classification system.

A number of commenters and witnesses addressed matters that are beyond the scope of this rulemaking. For example, several commenters and witnesses recommended that OSHA require third-party certification or independent testing of PPE. (See Tr. at 83; Exs. OSHA-2007-0044-0031 and -0037.) One commenter asked OSHA to address respirators in this rulemaking (Ex. OSHA-2007-0044-0003). Other commenters addressed who had responsibility for paying for PPE (Exs. OSHA-2007-0044-0004 and -0034), an issue OSHA resolved in a previous rulemaking (see 72 FR 64342). Two commenters requested that OSHA supply free national consensus standards to interested parties (Exs. OSHA-2007-0044-0017 and -0020). Regarding this request, OSHA notes that copyright laws protect national consensus standards referenced in its standards, although copies of these national consensus standards are available for viewing only at OSHA's Docket Office, libraries at OSHA Regional Offices, and the U.S. National Archives and Records Administration.

Some commenters (Exs. OSHA-2007-0044-0021 and -0034) and witnesses (Tr. at 18-19 and 51-52) questioned the Agency's decision not to include the construction industry in this rulemaking. OSHA responded at the hearing that it had decided not to include the construction industry because of the size of the undertaking and OSHA's limited resources. (Tr. at 18-19).

3. Deleting Outdated References From Ventilation and Welding Standards

OSHA did not receive any comments on its proposal to delete paragraph (a)(5)(v)(a) in § 1910.94 and paragraph (b)(2)(ii)(I) in § 1910.252,^[3] which reference, respectively, specific versions of American National Standards Institute (ANSI) standards on foot protection and eye- and face-protective devices.

Paragraph (a)(5)(v)(a) of § 1910.94 requires that safety shoes used by abrasive-blasting operators comply with ANSI Z41.1-1967, while § 1910.252(b)(2)(ii)(I) specifies that filter lenses and plates used in protective eyewear for welding must comply with the transmission test for radiant energy prescribed in ANSI Z87.1-1968. These references are outdated and, therefore, OSHA is amending these paragraphs so that they are consistent with OSHA's revisions to §§ 1910.133(b) and 1910.136(b).

D. Summary of the Final Rule

With this rulemaking, OSHA is updating the references to national consensus standards in the PPE sections of its general industry, shipyard employment, longshoring, and marine terminals rules, thereby explicitly allowing employers to use PPE constructed in accordance with the most recent national consensus standards. Numerous comments and hearing testimony persuaded OSHA to leave the references to national consensus standards in the regulatory text of the final standard. In this regard, the Agency decided to allow employers to use any of three editions of the national consensus standards, which consist of the post-1986 editions they must use currently and either of the two most recent editions of these standards. This action is consistent with the notice provided by the NPRM (72 FR 27771).

The final regulatory text addresses 3M's written comment that, even though 3M supports the proposal's performance-oriented approach, the proposal's nonmandatory appendix should be mandatory (Ex. OSHA-2007-0044-0026). Similarly, it is consistent with the recommendation made by several trade associations that employers should be able to comply with their obligations under the proposed rule by continuing to use PPE constructed in accordance with ANSI and ASTM standards. (See National Grain and Feed Association and Grain Elevator and Processing Society (Ex. OSHA-2007-0044-0027); American Bakers Association (Ex. -0028); NADA (Ex. -0047); see, also, International Association of Drilling Contractors (Ex. -0022) (stating that OSHA “may wish to consider including International Standards Organization (ISO) standards” to the list of standards in the nonmandatory appendices).)

In developing the final rule, the Agency had to decide whether to allow employers to continue using the editions of the national consensus standards currently incorporated in its PPE standards. In this regard, several commenters and witnesses recommended that OSHA delete references to the versions of the national consensus standards that are currently incorporated in the OSHA standards, (see, e.g., Ex. OSHA-2007-0044-0025; Tr. at 81). However, OSHA received testimony from several witnesses at the hearing that the PPE designed under a previous standard generally remains safe to use even though it may not conform totally with the most recent standard, and that allowing employers to use this PPE would permit them to deplete inventories before they have to purchase new PPE (Tr. at 90 and 140-143). In addition to these comments, OSHA proposed in the NPRM to list these editions in the nonmandatory appendices as examples of national consensus standards that met the proposal's good design requirement, thereby demonstrating OSHA's confidence in the level of employee protection afforded by these national consensus standards. The Agency also noted in the NPRM that the rulemaking would place no economic burden on employers who may still be using PPE constructed in accordance with the currently incorporated editions of the national consensus standards, implying that these employers could continue using this equipment.^[4] Therefore, based on the witness testimony and its statements in the NPRM, OSHA is retaining references to post-1986 editions of the national consensus standards currently incorporated in its PPE standards.

The regulatory text in the final standards also is consistent with OSHA's need to alleviate the administrative and practical problems that arise when current OSHA standards require compliance with outdated national consensus standards and updated national consensus standards are available that would enable employers to use PPE that meets design requirements that would provide employees with an equivalent or increased level of protection. Although the final rule does not alleviate the administrative and practical problems completely, OSHA believes that using direct-final rulemaking will reduce substantially the burden of revising this final regulatory text to incorporate future national consensus standards as ANSI and other standards-development organizations develop them.

The safety shoes required by § 1910.94(a)(5)(v)(a) must comply with the updated national consensus standards referenced in § 1910.136(b)(1), while the filter lenses and plates in protective eyewear required by § 1910.252(b)(2) must meet one of the tests for radiant-energy transmission prescribed in the ANSI standards incorporated by the updated § 1910.133(b)(1).

OSHA believes these deletions of references to specific outdated consensus standards will not increase compliance burdens, including compliance costs, because it is unlikely that employers are using safety shoes and eyewear manufactured in accordance with ANSI Z41.1-1967 and ANSI Z87.1-1968, respectively. (See Tr. at 55 (ISEA representative testifying that employers cannot purchase PPE built to the ANSI standards that are currently incorporated in OSHA's standards).) Instead, the Agency presumes that employers are using safety shoes manufactured in accordance with the 1991 or 1999 editions of ASTM F-2412-05 and ASTM F-2413-05, and eyewear that complies with ANSI Z87.1-1989, ANSI 87.1-1989 (R-1998), or ANSI Z87.1-2003.

Regarding safety shoes, OSHA believes that shoes constructed according to recent national consensus standards provide an appropriate level of protection, and, moreover, that it is difficult for employers to purchase shoes constructed in accordance with the referenced 1967 national consensus standard. Similarly, although it is feasible to purchase protective eye wear that meets an outdated test, if the protective eye wear meets a subsequent test that provides equivalent or greater protection, it is unnecessarily confusing to explicitly require conformity to an outdated test when meeting a more current test provides the required level of protection. Accordingly, OSHA believes that complying with related OSHA standards (i.e., §§ 1910.133(b) and 1910.136(b)) will provide employees with the latest PPE technology while also easing employers' compliance obligations. In the final rule, OSHA revised the phrase “filter lens and plates” to “filter lens” to conform to the definitions in the recent ANSI standards. The newly incorporated ANSI standards do not define “plates,” and the definitions of “filter lens” in these standards are broad enough to encompass “plates” as the term was used in § 1910.252(b)(2)(ii)(I) and the 1968 ANSI standard. OSHA does not consider this revision to be substantive.

OSHA is retaining in the final rules the proposed provision allowing employers to use PPE not manufactured in accordance with one of the incorporated national consensus standards when the employers meet their burden to demonstrate that the PPE they use provides employee protection that is at least as effective as PPE constructed in accordance with the appropriate incorporated national consensus standard. This provision allows employers to use subsequent national consensus standards that they can demonstrate provide the requisite level of employee protection. Differences in this provision, compared to similar provisions in OSHA's current PPE standards, are editorial only, and do not alter the substantive requirements of the current standards.

This rulemaking also deletes the paragraphs in §§ 1910.94 and 1910.252 that reference pre-1970 ANSI standards on foot protection and eye- and face-protective devices, respectively. Instead, employers must comply with §§ 1910.136(b) and 1910.133(b), which consist, respectively, of requirements for foot protection and eye- and face-protective devices newly updated under this rulemaking.

Finally, the Agency plans in the future to update the national consensus standards referenced in its PPE standards as new editions become available. Once OSHA determines that a new edition of a national consensus standard provides protection that is equal to or greater than the editions currently incorporated into its PPE standards, the Agency will use appropriate rulemaking, including direct-final rulemaking, to incorporate the new editions, and to remove outdated editions, from the regulatory text.

II. Procedural Determinations

A. Legal Considerations

The purpose of the Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. 651 et seq., is to achieve to the extent possible safe and healthful working conditions for all employees. 29 U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary of Labor to promulgate and enforce occupational safety and health standards. 29 U.S.C. 654(b), 655(b). A safety or health standard is a standard that requires employers to maintain conditions or adopt practices that are reasonably necessary or appropriate to provide safe or healthful working conditions. 29 U.S.C. 652(8). A standard is reasonably necessary or appropriate within the meaning of Section 652(8) of the OSH Act if a significant risk of material harm exists in the workplace and the proposed standard would substantially reduce or eliminate that workplace risk. OSHA already determined that requirements for PPE, including design requirements, are reasonably necessary or appropriate within the meaning of Section 652(8). The final rule neither reduces employee protection nor alters an employer's obligations under the existing standard. Under the final rule, employers will be able to continue to use the same equipment they have been using to meet their compliance obligation under the existing standards' design-criteria requirements. The final rule provides employers with additional options for meeting the design-criteria requirement—options most employers already are using. Therefore, this final rule does not alter the substantive protection that must be provided to employees and the compliance burdens on employers. Accordingly, OSHA need not, in this rulemaking, determine significant risk or the extent to which the final rule will reduce that risk, as typically required by Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980).

B. Final Economic Analysis and Regulatory Flexibility Act Certification

This action is not economically significant within the context of Executive Order 12866, or a major rule under the Unfunded Mandates Reform Act or Section 801 of the Small Business Regulatory Enforcement Fairness Act. The rulemaking imposes no additional costs on any private or public sector entity, and does not meet any of the criteria for an economically significant or major rule specified by the Executive Order or relevant statutes.

This rulemaking allows employers increased flexibility in choosing PPE for employees. However, the final rule does not require an employer to update or replace its PPE solely as a result of this rule if the PPE currently in use meets the existing standards. Furthermore, because the rule imposes no costs, OSHA certifies that it would not have a significant impact on a substantial number of small entities.

C. OMB Review Under the Paperwork Reduction Act of 1995

This rulemaking does not impose new information collection requirements for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-30.

D. Federalism

OSHA reviewed this final rule in accordance with the Executive Order on Federalism (Executive Order 13132, 64 FR 43255, August 10, 1999), which requires that agencies, to the extent possible, refrain from limiting State policy options, consult with States prior to taking any actions that would restrict State policy options, and take such actions only when clear constitutional authority exists and the problem is national in scope. Executive Order 13132 provides for preemption of State law only with the expressed consent of Congress. Any such preemption is to be limited to the extent possible.

Under Section 18 of the Occupational Safety and Health Act of 1970 (OSH Act; 29 U.S.C. 667), Congress expressly provides that States may adopt, with Federal approval, a plan for the development and enforcement of occupational safety and health standards; States that obtain Federal approval for such a plan are referred to as “State-Plan States.” (29 U.S.C. 667.) Occupational safety and health standards developed by State-Plan States must be at least as effective in providing safe and healthful employment and places of employment as the Federal standards. Subject to these requirements, State-Plan States are free to develop and enforce under State law their own requirements for occupational safety and health standards.

While OSHA drafted this final rule to protect employees in every State, Section 18(c)(2) of the Act permits State-Plan States and Territories to develop and enforce their own standards for the design of personal-protective equipment provided these requirements are at least as effective in providing safe and healthful employment and places of employment as the requirements specified in this final rule.

In summary, this final rule complies with Executive Order 13132. In States without OSHA-approved State Plans, this rulemaking limits State policy options in the same manner as other OSHA standards. In State-Plan States, this rulemaking does not significantly limit State policy options because, as explained in the following section, State-Plan States do not have to adopt the final rule.

E. State-Plan States

When Federal OSHA promulgates a new standard or amends an existing standard to be more stringent than it was previously, the 26 States or U.S. Territories with their own OSHA-approved occupational safety and health plans must revise their standards to reflect the new standard or amendment, or show OSHA why such action is unnecessary, e.g., because an existing State standard covering this area is at least as effective as the new Federal standard or amendment. 29 CFR 1953.5(a). In this regard, the State standard must be at least as effective as the final Federal rule, must be applicable to both the private and public (State and local government employees) sectors, and the States must complete the rulemaking within six months of the publication date of the Federal rule. When OSHA promulgates a new standard or amendment that does not impose additional or more stringent requirements than the existing standard, State-Plan States need not amend their standards, although OSHA encourages them to do so. The 26 States and U.S. Territories with OSHA-approved occupational safety and health plans are: 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; Connecticut, New Jersey, New York, and the Virgin Islands have OSHA-approved State Plans that apply only to State and local government employees.

With regard to this final rule, it will not impose any additional or more stringent requirements on employers compared to existing OSHA standards. Through this rulemaking, OSHA is updating the references in its regulations to recognize recent editions of the applicable national consensus standards, and deleting a number of outdated editions of the national consensus standards referenced in its existing PPE standards. The final rule does not require employers to update or replace their PPE solely as a result of this rulemaking if the PPE currently in use meets the existing standards. Therefore, the final rule does not require action under 29 CFR 1953.5(a), and States and U.S. Territories with approved State Plans do not need to adopt this rule or show OSHA why such action is unnecessary. However, to the extent these States and Territories have the same standards as the OSHA standards affected by this final rule, OSHA encourages them to adopt the amendments.

F. Unfunded Mandates Reform Act

OSHA reviewed this final rule in accordance with the Unfunded Mandates Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et seq.) and Executive Order 12875 (58 FR 58093). As discussed above in Section II.B (“Final Economic Analysis and Regulatory Flexibility Certification”) of this preamble, OSHA determined that this final rule imposes no additional costs on any private- or public-sector entity. Accordingly, this final rule requires no additional expenditures by either public or private employers.

As noted above under Section II.E (“State-Plan States”), OSHA's standards do not apply to State and local governments except in States that elected voluntarily to adopt a State Plan approved by the Agency. Consequently, this final rule does not meet the definition of a “Federal intergovernmental mandate” (see Section 421(5) of the UMRA (2 U.S.C. 658(5))). Therefore, for the purposes of the UMRA, the Agency certifies that this final rule does not mandate that State, local, or tribal governments adopt new, unfunded regulatory obligations, or increase expenditures by the private sector of more than $100 million in any year.

List of Subjects in 29 CFR Parts 1910, 1915, 1917, and 1918

• Cutting and brazing
• Eye and face protection
• Foot protection
• Head protection
• Incorporation by reference
• Ventilation, and Welding

III. Authority and Signature

Jordan Barab, Acting Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, directed the preparation of this final rule. OSHA is issuing this final rule 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 5-2007 (72 FR 31160), and 29 CFR part 1911.

Signed at Washington, DC, this 28th day of August 2009.

Jordan Barab,

Acting Assistant Secretary of Labor for Occupational Safety and Health.

Amendments to Standards

For the reasons stated above in the preamble, the Occupational Safety and Health Administration is amending 29 CFR parts 1910, 1915, 1917, and 1918 as follows:

PART 1910—[AMENDED]

Subpart A—[Amended]

1. Revise the authority citation for subpart A of part 1910 to read as follows:

Authority: Sections 4, 6, 8, Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Orders 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), and 5-2007 (72 FR 31160), as applicable.

Sections 1910.7 and 1910.8 also issued under 29 CFR Part 1911. Section 1910.7(f) also issued under 31 U.S.C. 9701, 29 U.S.C. 9a, 5 U.S.C. 553; Public Law 106-113 (113 Stat. 1501A-222); and OMB Circular A-25 (dated July 8, 1993) (58 FR 38142, July 15, 1993).

2. Amend § 1910.6 as follows:

a. Revise paragraphs (a)(2) and (a)(4)

b. Revise paragraph (e) introductory text

c. Revise paragraphs (e)(60), (e)(61), and (e)(67) through (e)(72)

d. Add new paragraphs (e)(73), (74), (75), (76), and (77)

e. Revise paragraph (h) introductory text

f. Add new paragraphs (h)(20) and (h)(21)

The additions and revisions read as follows:

§ 1910.6

Incorporation by reference.

(a) * * *

(2) Any changes in the standards incorporated by reference in this part and an official historic file of such changes are available for inspection in the Docket Office at the national office of the Occupational Safety and Health Administration, U.S. Department of Labor, Washington, DC 20910; telephone: [phone] (TTY number: 877-889-5627).

* * * * *

(4) Copies of standards listed in this section and issued by private standards organizations are available for purchase from the issuing organizations at the addresses or through the other contact information listed below for these private standards organizations. In addition, these standards are available for inspection at the National Archives and Records Administration (NARA). For information on the availability of these standards at NARA, telephone: [phone], or go to http://www.archives.gov/​federal_​register/​code_​of_​federal_​regulations/​ibr_​locations.html. Also, the standards are available for inspection at any Regional Office of the Occupational Safety and Health Administration (OSHA), or at the OSHA Docket Office, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-2625, Washington, DC 20210; telephone: [phone] (TTY number: 877-889-5627).

* * * * *

(e) Except as noted, copies of the standards listed below in this paragraph are available for purchase from the American National Standards Institute (ANSI), 25 West 43rd Street, 4th Floor, New York, NY 10036; telephone: [phone]; fax: [phone]; Web site: http://www.ansi.org.

* * * * *

(60) ANSI Z41-1999, American National Standard for Personal Protection—Protective Footwear; IBR approved for § 1910.136(b)(1)(ii). Copies of ANSI Z41-1999 are available for purchase only from the National Safety Council, P.O. Box 558, Itasca, IL 60143-0558; telephone: [phone]; fax: [phone]; Web site: http://www.nsc.org.

(61) ANSI Z41-1991, American National Standard for Personal Protection—Protective Footwear; IBR approved for § 1910.136(b)(1)(iii). Copies of ANSI Z41-1991 are available for purchase only from the National Safety Council, P.O. Box 558, Itasca, IL 60143-0558; telephone: [phone]; fax: [phone]; Web site: http://www.nsc.org.

* * * * *

(67) ANSI Z87.1-2003, American National Standard Practice for Occupational and Educational Eye and Face Protection; IBR approved for §§ 1910.133(b)(1)(i) and 1910.252(b)(2)(ii)(I)(1). Copies of ANSI Z87.1-2003 are available for purchase only from the American Society of Safety Engineers, 1800 East Oakton Street, Des Plaines, IL 60018-2187; telephone: [phone]; or from the International Safety Equipment Association (ISEA), 1901 North Moore Street, Arlington, VA 22209-1762; telephone: [phone]; fax: [phone]; Web site: http://www.safetyequipment.org.

(68) ANSI Z87.1-1989 (R-1998), American National Standard Practice for Occupational and Educational Eye and Face Protection; IBR approved for § 1910.133(b) (1)(ii). Copies of ANSI Z87.1-1989 (R-1998) are available for purchase only from the American Society of Safety Engineers, 1800 East Oakton Street, Des Plaines, IL 60018-2187; telephone: [phone].

(69) ANSI Z87.1-1989, American National Standard Practice for Occupational and Educational Eye and Face Protection; IBR approved for § 1910.133(b)(1)(iii). Copies of ANSI Z87.1-1989 are available for purchase only from the American Society of Safety Engineers, 1800 East Oakton Street, Des Plaines, IL 60018-2187; telephone: [phone].

(70) ANSI Z88.2-1969, Practices for Respiratory Protection; IBR approved for §§ 1910.94(c)(6)(iii)(a), 1910.134(c); and 1910.261(a)(3)(xxvi), (b)(2), (f)(5), (g)(15)(v), (h)(2)(iii), (h)(2)(iv), and (i)(4).

(71) ANSI Z89.1-2003, American National Standard for Industrial Head Protection; IBR approved for § 1910.135(b)(1)(i). Copies of ANSI Z89.1-2003 are available for purchase only from the International Safety Equipment Association, 1901 North Moore Street, Arlington, VA 22209-1762; telephone: [phone]; fax: [phone]; Web site: http://www.safetyequipment.org.

(72) ANSI Z89.1-1997, American National Standard for Industrial Head Protection; IBR approved for § 1910.135(b)(1)(ii). Copies of ANSI Z89.1-1997 are available for purchase only from the International Safety Equipment Association, 1901 North Moore Street, Arlington, VA 22209-1762; telephone: [phone]; fax: [phone]; Web site: http://www.safetyequipment.org.

(73) ANSI Z89.1-1986, American National Standard for Personnel Protection—Protective Headwear for Industrial Workers—Requirements; IBR approved for § 1910.135(b)(1)(iii).

(74) ANSI Z41.1-1967 Men's Safety Toe Footwear; IBR approved for § 1910.261(i)(4).

(75) ANSI Z87.1-1968 Practice of Occupational and Educational Eye and Face Protection; IBR approved for § 1910.261(a)(3)(xxv), (d)(1)(ii), (f)(5), (g)(1), (g)(15)(v), (g)(18)(ii), and (i)(4).

(76) ANSI Z89.1-1969 Safety Requirements for Industrial Head Protection; IBR approved for § 1910.261(a)(3)(xxvii), (b)(2), (g)(15)(v), and (i)(4).

(77) ANSI Z89.2-1971 Safety Requirements for Industrial Protective Helmets for Electrical Workers, Class B; IBR approved for § 1910.268(i)(1).

* * * * *

(h) Copies of the standards listed below in this paragraph are available for purchase from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959; telephone: [phone]; fax: [phone]; e-mail: s eviceastm.org; Web site: http://www.astm.org:

* * * * *

(20) ASTM F-2412-2005, Standard Test Methods for Foot Protection; IBR approved for § 1910.136(b)(1)(i).

(21) ASTM F-2413-2005, Standard Specification for Performance Requirements for Protective Footwear; IBR approved for § 1910.136(b)(1)(i).

* * * * *

Subpart G—[Amended]

3. The authority citation for subpart G of part 1910 continues to read as follows:

Authority: Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Orders 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160), as applicable; and 29 CFR part 1911.

4. Revise paragraph (a)(5)(v)( a) of § 1910.94 to read as follows:

§ 1910.94

Ventilation.

(a) * * *

(5) * * *

(v) * * *

(a) Protective footwear must comply with the requirements specified by 29 CFR 1910.136(b)(1).

* * * * *

Subpart I—[Amended]

5. Revise the authority citation for subpart I of part 1910 to read as follows:

Authority: Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Orders 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160), as applicable.

Sections 1910.132, 1910.134, and 1910.138 of 29 CFR also issued under 29 CFR part 1911.

Sections 1910.133, 1910.135, and 1910.136 of 29 CFR also issued under 29 CFR part 1911 and 5 U.S.C. 553.

6. Revise paragraph (b) of § 1910.133 to read as follows:

§ 1910.133

Eye and face protection.

* * * * *

(b) Criteria for protective eye and face protection. (1) Protective eye and face protection devices must comply with any of the following consensus standards:

(i) ANSI Z87.1-2003, “American National Standard Practice for Occupational and Educational Eye and Face Protection,” which is incorporated by reference in § 1910.6;

(ii) ANSI Z87.1-1989 (R-1998), “American National Standard Practice for Occupational and Educational Eye and Face Protection,” which is incorporated by reference in § 1910.6; or

(iii) ANSI Z87.1-1989, “American National Standard Practice for Occupational and Educational Eye and Face Protection,” which is incorporated by reference in § 1910.6.

(2) Protective eye and face protection devices that the employer demonstrates are at least as effective as protective eye and face protection devices that are constructed in accordance with one of the above consensus standards will be deemed to be in compliance with the requirements of this section.

* * * * *

7. Revise paragraph (b) of § 1910.135 to read as follows:

§ 1910.135

Head protection.

* * * * *

(b) Criteria for head protection. (1) Head protection must comply with any of the following consensus standards:

(i) ANSI Z89.1-2003, “American National Standard for Industrial Head Protection,” which is incorporated by reference in § 1910.6;

(ii) ANSI Z89.1-1997, “American National Standard for Industrial Head Protection,” which is incorporated by reference in § 1910.6; or

(iii) ANSI Z89.1-1986, “American National Standard for Personnel Protection—Protective Headwear for Industrial Workers—Requirements,” which is incorporated by reference in § 1910.6.

(2) Head protection devices that the employer demonstrates are at least as effective as head protection devices that are constructed in accordance with one of the above consensus standards will be deemed to be in compliance with the requirements of this section.

8. Revise paragraph (b) of § 1910.136 to read as follows:

§ 1910.136

Foot protection.

* * * * *

(b) Criteria for protective footwear. (1) Protective footwear must comply with any of the following consensus standards:

(i) ASTM F-2412-2005, “Standard Test Methods for Foot Protection,” and ASTM F-2413-2005, “Standard Specification for Performance Requirements for Protective Footwear,” which are incorporated by reference in § 1910.6;

(ii) ANSI Z41-1999, “American National Standard for Personal Protection—Protective Footwear,” which is incorporated by reference in § 1910.6; or

(iii) ANSI Z41-1991, “American National Standard for Personal Protection—Protective Footwear,” which is incorporated by reference in § 1910.6.

(2) Protective footwear that the employer demonstrates is at least as effective as protective footwear that is constructed in accordance with one of the above consensus standards will be deemed to be in compliance with the requirements of this section.

9. Add a paragraph at the end of paragraph 9 in Appendix B to subpart I that reads as follows:

Appendix B to Subpart I to Part 1910—Non-Mandatory Compliance Guidelines for Hazard Assessment and Personal Protective Equipment Selection

* * * * *

9. Selection guidelines for head protection. * * *

Beginning with the ANSI Z89.1-1997 standard, ANSI updated the classification system for protective helmets. Prior revisions used type classifications to distinguish between caps and full brimmed hats. Beginning in 1997, Type I designated helmets designed to reduce the force of impact resulting from a blow only to the top of the head, while Type II designated helmets designed to reduce the force of impact resulting from a blow to the top or sides of the head. Accordingly, if a hazard assessment indicates that lateral impact to the head is foreseeable, employers must select Type II helmets for their employees. To improve comprehension and usefulness, the 1997 revision also redesignated the electrical-protective classifications for helmets as follows: “Class G—General”; helmets designed to reduce the danger of contact with low-voltage conductors; “Class E—Electrical”; helmets designed to reduce the danger of contact with conductors at higher voltage levels; and “Class C—Conductive”; helmets that provide no protection against contact with electrical hazards.

* * * * *

Subpart Q—[Amended]

10. The authority citation for subpart Q of part 1910 continues to read as follows:

Authority: Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Orders 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160), as applicable; and 29 CFR part 1911.

11. Revise paragraph (b)(2)(ii)(I) of § 1910.252 to read as follows:

§ 1910.252

General requirements.

* * * * *

(b) * * *

(2) * * *

(ii) * * *

(I) Filter lenses must meet the test for transmission of radiant energy prescribed by any of the consensus standards listed in 29 CFR 1910.133(b)(1).

* * * * *

PART 1915—[AMENDED]

12. The authority citation for part 1915 continues to read as follows:

Authority: Section 41, Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941); Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Orders 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160), as applicable; and 29 CFR part 1911.

Subpart A—[Amended]

13. Amend § 1915.5 as follows:

a. Revise paragraphs (b) and (c).

b. Revise paragraph (d)(1) introductory text.

c. Revise paragraphs (d)(1)(iv) through (d)(1)(ix).

c. Add new paragraphs (d)(1)(x), and (d)(1)(xi).

d. Add new paragraph (d)(5).

The revision and additions read as follows:

§ 1915.5

Incorporation by reference.

* * * * *

(b)(1) The standards listed in paragraph (d) of this section are incorporated by reference in the corresponding sections noted as the sections exist on the date of the approval, and a notice of any change in these standards will be published in the Federal Register. The Director of the Federal Register approved these incorporations by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

(2) Any changes in the standards incorporated by reference in this part and an official historic file of such changes are available for inspection in the Docket Office at the national office of the Occupational Safety and Health Administration, U.S. Department of Labor, Washington, DC 20910; telephone: [phone] (TTY number: 877-889-5627).

(c) Copies of standards listed in this section and issued by private standards organizations are available for purchase from the issuing organizations at the addresses or through the other contact information listed below for these private standards organizations. In addition, these standards are available for inspection at the National Archives and Records Administration (NARA). For information on the availability of these standards at NARA, telephone: [phone], or go to http://www.archives.gov/​federal_​register/​code_​of_​federal_​regulations/​ibr_​locations.html. Also, the standards are available for inspection at any Regional Office of the Occupational Safety and Health Administration (OSHA), or at the OSHA Docket Office, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-2625, Washington, DC 20210; telephone: [phone] (TTY number: 877-889-5627).

(d)(1) Except as noted, copies of the standards listed below in this paragraph are available for purchase from the American National Standards Institute (ANSI), 25 West 43rd Street, 4th Floor, New York, NY 10036; telephone: [phone]; fax: [phone]; Web site: http://www.ansi.org.

* * * * *

(iv) ANSI Z41-1999, American National Standard for Personal Protection—Protective Footwear; IBR approved for § 1915.156(b)(1)(ii). Copies of ANSI Z41-1999 are available for purchase only from the National Safety Council, P.O. Box 558, Itasca, IL 60143-0558; telephone: [phone]; fax: [phone]; Web site: http://www.nsc.org.

(v) ANSI Z41-1991, American National Standard for Personal Protection—Protective Footwear; IBR approved for § 1915.156(b)(1)(iii). Copies of ANSI Z41-1991 are available for purchase only from the National Safety Council, P.O. Box 558, Itasca, IL 60143-0558; telephone: [phone]; fax: [phone]; Web site: http://www.nsc.org.

(vi) ANSI Z87.1-2003, American National Standard Practice for Occupational and Educational Eye and Face Protection; IBR approved for § 1915.153(b)(1)(i). Copies of ANSI Z87.1-2003 are available for purchase only from the American Society of Safety Engineers, 1800 East Oakton Street, Des Plaines, IL 60018-2187; telephone: [phone]; or from the International Safety Equipment Association (ISEA), 1901 North Moore Street, Arlington, VA 22209-1762; telephone: [phone]; fax: [phone]; Web site: http://www.safetyequipment.org.

(vii) ANSI Z87.1-1989 (R-1998), American National Standard Practice for Occupational and Educational Eye and Face Protection; IBR approved for § 1915.153(b)(1)(ii). Copies of ANSI Z87.1-1989 (R-1998) are available for purchase only from the American Society of Safety Engineers, 1800 East Oakton Street, Des Plaines, IL 60018-2187; telephone: [phone].

(viii) ANSI Z87.1-1989, American National Standard Practice for Occupational and Educational Eye and Face Protection; IBR approved for § 1915.153(b)(1)(iii).

(ix) ANSI Z89.1-2003, American National Standard for Industrial Head Protection; IBR approved for § 1915.155(b)(1)(i). Copies of ANSI Z89.1-2003 are available for purchase only from the International Safety Equipment Association, 1901 North Moore Street, Arlington, VA 22209-1762; telephone: [phone]; fax: [phone]; Web site: http://www.safetyequipment.org.

(x) ANSI Z89.1-1997, American National Standard for Industrial Head Protection; IBR approved for § 1915.155(b)(1)(ii). Copies of ANSI Z89.1-1997 are available for purchase only from the International Safety Equipment Association, 1901 North Moore Street, Arlington, VA 22209-1762; telephone: [phone]; fax: [phone]; Web site: http://www.safetyequipment.org.

(xi) ANSI Z89.1-1986, American National Standard for Personnel Protection—Protective Headwear for Industrial Workers—Requirements; IBR approved for § 1915.155(b)(1)(iii).

* * * * *

(5) Copies of the standards listed below in this paragraph are available for purchase from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959; telephone: [phone]; fax: [phone]; e-mail: seviceastm.org; Web site: http://www.astm.org:

(i) ASTM F-2412-2005, Standard Test Methods for Foot Protection; IBR approved for § 1915.156(b)(1)(i).

(ii) ASTM F-2413-2005, Standard Specification for Performance Requirements for Protective Footwear; IBR approved for § 1915.156(b)(1)(i).

Subpart I—[Amended]

14. Revise paragraph (b) of § 1915.153 to read as follows:

§ 1915.153

Eye and face protection.

* * * * *

(b) Criteria for protective eye and face devices. (1) Protective eye and face protection devices must comply with any of the following consensus standards:

(i) ANSI Z87.1-2003, “American National Standard Practice for Occupational and Educational Eye and Face Protection,” which is incorporated by reference in § 1915.5;

(ii) ANSI Z87.1-1989 (R-1998), “American National Standard Practice for Occupational and Educational Eye and Face Protection,” which is incorporated by reference in § 1915.5; or

(iii) ANSI Z87.1-1989, “American National Standard Practice for Occupational and Educational Eye and Face Protection,” which is incorporated by reference in § 1915.5.

(2) Eye and face protection devices that the employer demonstrates are at least as effective as protective as eye and face protection devices that are constructed in accordance with one of the above consensus standards will be deemed to be in compliance with the requirements of this section.

15. Revise paragraph (b) of § 1915.155 to read as follows:

§ 1915.155

Head protection.

* * * * *

(b) Criteria for protective helmets. (1) Head protection must comply with any of the following consensus standards:

(i) ANSI Z89.1-2003, “American National Standard for Industrial Head Protection,” which is incorporated by reference in § 1915.5;

(ii) ANSI Z89.1-1997, “American National Standard for Industrial Head Protection,” which is incorporated by reference in § 1915.5; or

(iii) ANSI Z89.1-1986, “American National Standard for Personnel Protection—Protective Headwear for Industrial Workers—Requirements,” which is incorporated by reference in § 1915.5.

(2) Head protection devices that the employer demonstrates are at least as effective as head protection devices that are constructed in accordance with one of the above consensus standards will be deemed to be in compliance with the requirements of this section.

16. Revise paragraph (b) of § 1915.156 to read as follows:

§ 1915.156

Foot protection.

* * * * *

(b) Criteria for protective footwear. (1) Protective footwear must comply with any of the following consensus standards:

(i) ASTM F-2412-2005, “Standard Test Methods for Foot Protection,” and ASTM F-2413-2005, “Standard Specification for Performance Requirements for Protective Footwear,” which are incorporated by reference in § 1915.5;

(ii) ANSI Z41-1999, “American National Standard for Personal Protection—Protective Footwear,” which is incorporated by reference in § 1915.5; or

(iii) ANSI Z41-1991, “American National Standard for Personal Protection—Protective Footwear,” which is incorporated by reference in § 1915.5.

(2) Protective footwear that the employer demonstrates is at least as effective as protective footwear that is constructed in accordance with one of the above consensus standards will be deemed to be in compliance with the requirements of this section.

PART 1917—[AMENDED]

17. Revise the authority citation for part 1917 to read as follows:

Authority: Section 41, Longshore and Harbor Worker's Compensation Act (33 U.S.C. 941); Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Orders 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160), as applicable; and 29 CFR part 1911.

Subpart A—[Amended]

18. Amend 1917.3 as follows:

a. Revise paragraphs (a)(2), (a)(3), and (a)(4).

b. Revise paragraph (b) introductory text.

c. Revise paragraphs (b)(4) through (b)(7).

d. Add new paragraphs (b)(8) through (b)(12).

e. Add new paragraph (c).

The revisions and additions read as follows:

§ 1917.3

Incorporation by reference.

(a) * * *

(2) The standards listed in paragraph (b) of this section are incorporated by reference in the corresponding sections noted as the sections exist on the date of the approval, and a notice of any change in these standards will be published in the Federal Register. The Director of the Federal Register approved these incorporations by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

(3) Any changes in the standards incorporated by reference in this part and an official historic file of such changes are available for inspection in the Docket Office at the national office of the Occupational Safety and Health Administration, U.S. Department of Labor, Washington, DC 20910; telephone: [phone] (TTY number: 877-889-5627).

(4) Copies of standards listed in this section and issued by private standards organizations are available for purchase from the issuing organizations at the addresses or through the other contact information listed below for these private standards organizations. In addition, these standards are available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, telephone: [phone], or go to http://www.archives.gov/​federal_​register/​code_​of_​federal_​regulations/​ibr_​locations.html. Also, the material is available for inspection at any Regional Office of the Occupational Safety and Health Administration (OSHA), or at the OSHA Docket Office, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-2625, Washington, DC 20210; telephone: [phone] (TTY number: 877-889-5627).

(b) Except as noted, copies of the standards listed below in this paragraph are available for purchase from the American National Standards Institute (ANSI), 25 West 43rd Street, 4th Floor, New York, NY 10036; telephone: [phone]; fax: [phone]; Web site: http://www.ansi.org.

* * * * *

(4) ANSI Z41-1999, American National Standard for Personal Protection—Protective Footwear; IBR approved for § 1917.94(b)(1)(ii). Copies of ANSI Z41-1999 are available for purchase only from the National Safety Council, P.O. Box 558, Itasca, IL 60143-0558; telephone: [phone]; fax: [phone]; Web site: http://www.nsc.org.

(5) ANSI Z41-1991, American National Standard for Personal Protection—Protective Footwear; IBR approved for § 1917.94(b)(1)(iii). Copies of ANSI Z41-1991 are available for purchase only from the National Safety Council, P.O. Box 558, Itasca, IL 60143-0558; telephone: [phone]; fax: [phone]; Web site: http://www.nsc.org.

(6) ANSI Z87.1-2003, American National Standard Practice for Occupational and Educational Eye and Face Protection; IBR approved for § 1917.91(a)(1)(i)(A). Copies of ANSI Z87.1-2003 are available for purchase only from the American Society of Safety Engineers, 1800 East Oakton Street, Des Plaines, IL 60018-2187; telephone: [phone]; or from the International Safety Equipment Association (ISEA), 1901 North Moore Street, Arlington, VA 22209-1762; telephone: [phone]; fax: [phone]; Web site: http://www.safetyequipment.org.

(7) ANSI Z87.1-1989 (R-1998), American National Standard Practice for Occupational and Educational Eye and Face Protection; IBR approved for § 1917.91(a)(1)(i)(B). Copies of ANSI Z87.1-1989 (R-1998) are available for purchase only from the American Society of Safety Engineers, 1800 East Oakton Street, Des Plaines, IL 60018-2187; telephone: [phone].

(8) ANSI Z87.1-1989, American National Standard Practice for Occupational and Educational Eye and Face Protection; IBR approved for § 1917.91(a)(1)(i)(C). Copies of ANSI Z87.1-1989 are available for purchase only from the American Society of Safety Engineers, 1800 East Oakton Street, Des Plaines, IL 60018-2187; telephone: [phone].

(9) ANSI Z89.1-2003, American National Standard for Industrial Head Protection; IBR approved for § 1917.93(b)(1)(i). Copies of ANSI Z89.1-2003 are available for purchase only from the International Safety Equipment Association, 1901 North Moore Street, Arlington, VA 22209-1762; telephone: [phone]; fax: [phone]; Web site: http://www.safetyequipment.org.

(10) ANSI Z89.1-1997, American National Standard for Industrial Head Protection; IBR approved for § 1917.93(b)(1)(ii). Copies of ANSI Z89.1-1997 are available for purchase only from the International Safety Equipment Association, 1901 North Moore Street, Arlington, VA 22209-1762; telephone: [phone]; fax: [phone]; Web site: http://www.safetyequipment.org.

(11) ANSI Z89.1-1986, American National Standard for Personnel Protection—Protective Headwear for Industrial Workers—Requirements; IBR approved for § 1917.93(b)(1)(iii).

(12) ASME B56.1, 1959, Safety Code for Powered Industrial Trucks, pages 8 and 13; IBR approved for § 1917.50(j)(1).

(c) Copies of the following standards are available for purchase from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959; telephone: [phone]; fax: [phone]; e-mail: seviceastm.org; Web site: http://www.astm.org:

(1) ASTM F-2412-2005, Standard Test Methods for Foot Protection; IBR approved for § 1917.94(b)(1)(i).

(2) ASTM F-2413-2005, Standard Specification for Performance Requirements for Protective Footwear; IBR approved for § 1917.94(b)(1)(i).

Subpart E—[Amended]

19. Revise paragraph (a)(1) of § 1917.91 to read as follows:

§ 1917.91

Eye and face protection.

(a)(1)(i) The employer shall ensure that each affected employee uses protective eye and face protection devices that comply with any of the following consensus standards:

(A) ANSI Z87.1-2003, “American National Standard Practice for Occupational and Educational Eye and Face Protection,” which is incorporated by reference in § 1917.3;

(B) ANSI Z87.1-1989 (R-1998), “American National Standard Practice for Occupational and Educational Eye and Face Protection,” which is incorporated by reference in § 1917.3; or

(C) ANSI Z87.1-1989, “American National Standard Practice for Occupational and Educational Eye and Face Protection,” which is incorporated by reference in § 1917.3.

(ii) Protective eye and face protection devices that the employer demonstrates are at least as effective as protective eye and face protection devices that are constructed in accordance with one of the above consensus standards will be deemed to be in compliance with the requirements of this section.

* * * * *

20. Revise paragraph (b) of § 1917.93 to read as follows:

§ 1917.93

Head protection.

* * * * *

(b)(1) The employer must ensure that head protection complies with any of the following consensus standards:

(i) ANSI Z89.1-2003, “American National Standard for Industrial Head Protection,” which is incorporated by reference in § 1917.3;

(ii) ANSI Z89.1-1997, “American National Standard for Industrial Head Protection,” which is incorporated by reference in § 1917.3; or

(iii) ANSI Z89.1-1986, “American National Standard for Personnel Protection—Protective Headwear for Industrial Workers—Requirements,” which is incorporated by reference in § 1917.3.

(2) Head protection devices that the employer demonstrates are at least as effective as head protection devices that are constructed in accordance with one of the above consensus standards will be deemed to be in compliance with the requirements of this section.

* * * * *

21. Revise paragraph (b) of § 1917.94 to read as follows:

§ 1917.94

Foot protection.

* * * * *

(b)(1) The employer must ensure that protective footwear complies with any of the following consensus standards:

(i) ASTM F-2412-2005, “Standard Test Methods for Foot Protection,” and ASTM F-2413-2005, “Standard Specification for Performance Requirements for Protective Footwear,” which are incorporated by reference in § 1917.3;

(ii) ANSI Z41-1999, “American National Standard for Personal Protection—Protective Footwear,” which is incorporated by reference in § 1917.3; or

(iii) ANSI Z41-1991, “American National Standard for Personal Protection—Protective Footwear,” which is incorporated by reference in § 1917.3.

(2) Protective footwear that the employer demonstrates is at least as effective as protective footwear that is constructed in accordance with one of the above consensus standards will be deemed to be in compliance with the requirements of this section.

PART 1918—[AMENDED]

22. Revise the authority citation for part 1918 to read as follows:

Authority: Section 41, Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941); Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Orders 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160), as applicable; and 29 CFR part 1911.

Subpart A—[Amended]

23. Amend 1918.3 as follows:

a. Revise paragraphs (a)(2), (a)(3), and (a)(4).

b. Revise paragraph (b) introductory text.

c. Revise paragraphs (b)(4) through (b)(6).

d. Add new paragraphs (b)(7) through (b)(11).

e. Add new paragraph (c).

The revisions and additions read as follows:

§ 1918.3

Incorporation by reference.

(a) * * *

(2) The standards listed in paragraph (b) of this section are incorporated by reference in the corresponding sections noted as the sections exist on the date of the approval, and a notice of any change in these standards will be published in the Federal Register. The Director of the Federal Register approved these incorporations by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

(3) Any changes in the standards incorporated by reference in this part and an official historic file of such changes are available for inspection in the Docket Office at the national office of the Occupational Safety and Health Administration, U.S. Department of Labor, Washington, DC 20910; telephone: [phone] (TTY number: 877-889-5627).

(4) Copies of standards listed in this section and issued by private standards organizations are available for purchase from the issuing organizations at the addresses or through the other contact information listed below for these private standards organizations. In addition, these standards are available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, telephone: [phone], or go to http:/www.archives.gov/​federal_​register/​code_​of_​federal_​regulations/​ibr_​locations.html. Also, the standards are available for inspection at any Regional Office of the Occupational Safety and Health Administration (OSHA), or at the OSHA Docket Office, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-2625, Washington, DC 20210; telephone: [phone] (TTY number: 877-889-5627). (b) Except as noted, copies of the standards listed below in this paragraph are available for purchase from the American National Standards Institute (ANSI), 25 West 43rd Street, 4th Floor, New York, NY 10036; telephone: [phone]; fax: [phone]; Web site:

* * * * *

(4) ANSI Z41-1999, American National Standard for Personal Protection—Protective Footwear; IBR approved for § 1918.104(b)(1)(ii). Copies of ANSI Z41-1999 are available for purchase only from the National Safety Council, P.O. Box 558, Itasca, IL 60143-0558; telephone: [phone]; fax: [phone]; Web site: http://www.nsc.org.

(5) ANSI Z41-1991, American National Standard for Personal Protection—Protective Footwear; IBR approved for § 1918.104(b)(1)(iii). Copies of ANSI Z41-1991 are available for purchase only from the National Safety Council, P.O. Box 558, Itasca, IL 60143-0558; telephone: [phone]; fax: [phone]; Web site: http://www.nsc.org.

(6) ANSI Z87.1-2003, American National Standard Practice for Occupational and Educational Eye and Face Protection; IBR approved for § 1918.101(a)(1)(i)(A). Copies of ANSI Z87.1-2003 are available for purchase only from the American Society of Safety Engineers, 1800 East Oakton Street, Des Plaines, IL 60018-2187; telephone: [phone]; or from the International Safety Equipment Association (ISEA), 1901 North Moore Street, Arlington, VA 22209-1762; telephone: [phone]; fax: [phone]; Web site: http://www.safetyequipment.org.

(7) ANSI Z87.1-1989 (R-1998), American National Standard Practice for Occupational and Educational Eye and Face Protection; IBR approved for § 1918.101(a)(1)(i)(B). Copies of ANSI Z87.1-1989 (R1998) are available for purchase only from the American Society of Safety Engineers, 1800 East Oakton Street, Des Plaines, IL 60018-2187; telephone: [phone].

(8) ANSI Z87.1-1989, American National Standard Practice for Occupational and Educational Eye and Face Protection; IBR approved for § 1918.101(a)(1)(i)(C). Copies of ANSI Z87.1-1989 are available for purchase only from the American Society of Safety Engineers, 1800 East Oakton Street, Des Plaines, IL 60018-2187; telephone: [phone].

(9) ANSI Z89.1-2003, American National Standard for Industrial Head Protection; IBR approved for § 1918.103(b)(1)(i). Copies of ANSI Z89.1-2003 are available for purchase only from the International Safety Equipment Association, 1901 North Moore Street, Arlington, VA 22209-1762; telephone: [phone]; fax: [phone]; Web site: http://www.safetyequipment.org.

(10) ANSI Z89.1-1997, American National Standard for Industrial Head Protection; IBR approved for § 1918.103(b)(1)(ii). Copies of ANSI Z89.1-1997 are available for purchase only from the International Safety Equipment Association, 1901 North Moore Street, Arlington, VA 22209-1762; telephone: [phone]; fax: [phone]; Web site: http://www.safetyequipment.org.

(11) ANSI Z89.1-1986, American National Standard for Personnel Protection—Protective Headwear for Industrial Workers—Requirements; IBR approved for § 1918.103(b)(1)(iii).

(c) Copies of the following standards are available for purchase from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959; telephone: [phone]; fax: [phone]; e-mail: seviceastm.org; Web site: http://www.astm.org.

(1) ASTM F-2412-2005, Standard Test Methods for Foot Protection; IBR approved for § 1917.94(b)(1)(i).

(2) ASTM F-2413-2005, Standard Specification for Performance Requirements for Protective Footwear; IBR approved for § 1917.94(b)(1)(i).

Subpart J—[Amended]

24. Revise paragraph (a)(1) of § 1918.101 to read as follows:

§ 1918.101

Eye and face protection.

(a) * * *

(1)(i) Employers must ensure that each employee uses appropriate eye and/or face protection when the employee is exposed to an eye or face hazard, and that protective eye and face devices comply with any of the following consensus standards:

(A) ANSI Z87.1-2003, “American National Standard Practice for Occupational and Educational Eye and Face Protection,” which is incorporated by reference in § 1918.3;

(B) ANSI Z87.1-1989 (R1998), “American National Standard Practice for Occupational and Educational Eye and Face Protection,” which is incorporated by reference in § 1918.3; or

(C) ANSI Z87.1-1989, “American National Standard Practice for Occupational and Educational Eye and Face Protection,” which is incorporated by reference in § 1918.3.

(ii) Protective eye and face protection devices that the employer demonstrates are at least as effective as protective eye and face protection devices that are constructed in accordance with one of the above consensus standards will be deemed to be in compliance with the requirements of this section.

* * * * *

25. Revise paragraph (b) of § 1918.103 to read as follows:

§ 1918.103

Head protection.

* * * * *

(b)(1) The employer must ensure that head protection complies with any of the following consensus standards:

(i) ANSI Z89.1-2003, “American National Standard for Industrial Head Protection,” which is incorporated by reference in § 1918.3;

(ii) ANSI Z89.1-1997, “American National Standard for Industrial Head Protection,” which is incorporated by reference in § 1918.3; or

(iii) ANSI Z89.1-1986, “American National Standard for Personnel Protection—Protective Headwear for Industrial Workers—Requirements,” which is incorporated by reference in § 1918.3.

(2) Head protection devices that the employer demonstrates are at least as effective as head protection devices that are constructed in accordance with one of the above consensus standards will be deemed to be in compliance with the requirements of this section.

* * * * *

26. Revise paragraph (b) of § 1918.104 to read as follows:

§ 1918.104

Foot protection.

* * * * *

(b)(1) The employer must ensure that protective footwear complies with any of the following consensus standards:

(i) ASTM F-2412-2005, “Standard Test Methods for Foot Protection,” and ASTM F-2413-2005, “Standard Specification for Performance Requirements for Protective Footwear,” which are incorporated by reference in § 1918.3;

(ii) ANSI Z41-1999, “American National Standard for Personal Protection—Protective Footwear,” which is incorporated by reference in § 1918.3; or

(iii) ANSI Z41-1991, “American National Standard for Personal Protection—Protective Footwear,” which is incorporated by reference in § 1918.3.

(2) Protective footwear that the employer demonstrates is at least as effective as protective footwear that is constructed in accordance with one of the above consensus standards will be deemed to be in compliance with the requirements of this section.

Footnotes

1.  The general industry and shipyard employment standards expressly allow employers to use PPE that is as protective as PPE constructed in accordance with the incorporated standards. OSHA uses its de minimis policy to allow employers covered by the longshoring and marine terminals standards to use PPE that is as protective as PPE constructed in accordance with the incorporated standards. (See OSHA Instruction CPL 2.103, “Field Inspection Reference Manual,” Chapter III.C.2.g; and memorandum from Richard Fairfax, Director, Directorate of Enforcement Programs to Regional Administrators (June 19, 2006).)

2.  OSHA will use the direct-final rulemaking process to update national consensus standards referenced in its PPE standards when it is appropriate to do so (see, J. Lubbers, A Guide to Federal Agency Rulemaking, at 115-119 (4th ed. 2006)).

3.  The NPRM also requested public comment on (1) its assumption that the proposed revisions would not increase compliance burdens, and (2) whether it should replace these paragraphs with cross references to §§ 1910.136(b) and 1910.133(b). The Agency received no comment on either issue.

4.  In the NPRM, OSHA specifically noted that it did not believe that employers were still using PPE constructed in accordance with the ANSI standards that it adopted to allow employers to continue to use PPE they purchased before a specified date, and proposed to delete any reference to these consensus standards from the PPE standards. OSHA received no comments indicating that employers were using such PPE currently.