99-7114. Employer Payment For Personal Protective Equipment  

  • [Federal Register Volume 64, Number 61 (Wednesday, March 31, 1999)]
    [Proposed Rules]
    [Pages 15402-15441]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 99-7114]
    
    
    
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    Part II
    
    
    
    
    
    Department of Labor
    
    
    
    
    
    _______________________________________________________________________
    
    
    
    Occupation Safety and Health Administration
    
    
    
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    29 CFR Parts 1910, 1915, et al.
    
    
    
    Employer Payment for Personal Protective Equipment; Proposed Rule
    
    Federal Register / Vol. 64, No. 61 / Wednesday, March 31, 1999 / 
    Proposed Rules
    
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    DEPARTMENT OF LABOR
    
    Occupational Safety and Health Administration
    
    29 CFR Parts 1910, 1915, 1917, 1918, and 1926
    
    [Docket S-042]
    [RIN No. 1218-AB77]
    
    
    Employer Payment For Personal Protective Equipment
    
    AGENCY: Occupational Safety and Health Administration (OSHA), U.S. 
    Department of Labor.
    
    ACTION: Proposed rule; scheduling of informal public hearing.
    
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    SUMMARY: Many Occupational Safety and Health Administration (OSHA) 
    health, safety, maritime, and construction standards require employers 
    to provide their employees with protective equipment, including 
    personal protective equipment (PPE), when such equipment is necessary 
    to protect employees from job-related injuries, illnesses, and 
    fatalities.
        These requirements are codified in Part 1910 (General Industry 
    standards), Part 1915 (Shipyard standards), Part 1926 (Construction 
    standards), Part 1917 (Marine Terminal standards), and Part 1918 
    (Longshoring standards) of Title 29 of the Code of Federal Regulations. 
    These requirements address PPE of many kinds: hard hats, gloves, 
    goggles, safety shoes, safety glasses, welding helmets and goggles, 
    faceshields, chemical protective equipment and clothing, fall 
    protection equipment, and so forth. The provisions in OSHA standards 
    that require PPE generally state that the employer is to provide such 
    PPE; however, some of these provisions do not specify that the employer 
    is to provide such PPE at no cost to the employee.
        In this rulemaking, OSHA is proposing regulatory language to 
    clarify that, with only a few exceptions for specific types of PPE, the 
    employer must pay for the PPE provided. OSHA is proposing to except in 
    certain circumstances three specific kinds of PPE from this 
    requirement: safety-toe protective footwear, prescription safety 
    eyewear, and the logging boots required by 29 CFR 1910.266(d)(1)(v).
        OSHA believes that the proposed rule will better implement the 
    intent of the Occupational Safety and Health Act, make clear who is to 
    pay for what kind of PPE, and improve protection to employees who must 
    wear PPE.
        The proposed rule would not require employers to provide PPE where 
    none has been required before. Instead, the proposed rule merely 
    stipulates that the employer must pay for all required PPE, except in 
    the limited cases specified above. Since employers already pay for most 
    of the required PPE, the proposed rule would shift to employers only 
    the cost of that portion of PPE currently being paid for by their 
    employees. Based on information from a number of surveys, studies, and 
    a panel of PPE experts, OSHA believes that, even making worst case 
    assumptions, this shift in costs from employees to employers will 
    impose annualized costs of no more than $61.9 million across all 
    affected industries. To the extent that the proposed rule enhances the 
    use of PPE, employers will obtain about a three-fold return on their 
    investment in PPE, i.e., will save an estimated three dollars in injury 
    and illness costs for every dollar they invest in PPE.
        OSHA is also scheduling an informal public hearing to provide 
    interested parties the opportunity to orally present information and 
    data related to the proposed rule.
    
    DATES: Comments. Written comments on the proposed standard must be 
    postmarked by June 14, 1999. Comments that are transmitted 
    electronically through OSHA's internet site must be transmitted by June 
    14, 1999. The hearing is scheduled to begin at 9:30 a.m. on June 22, 
    1999.
        Informal public hearing. Notices of intention to appear at the 
    informal public hearing must be postmarked by June 1, 1999. Hearing 
    participants requesting more than 10 minutes for their presentations, 
    and participants who will submit documentary evidence at the hearing, 
    must submit the full text of their testimony and all documentary 
    evidence to the Docket Office, postmarked no later than June 14, 1999.
    
    ADDRESSES: Comments. Submit four copies of written comments, notices of 
    intention to appear at the informal public hearing, testimony, and 
    documentary evidence to the OSHA Docket Office, Docket S-042, Room N-
    2625, U.S. Department of Labor, 200 Constitution Ave., NW, Washington, 
    DC 20210. (Telephone: (202)693-2350) Please identify the document at 
    the top of the first page as either a comment, notice of intention to 
    appear, testimony, or documentary evidence. Comments of 10 pages or 
    less may be faxed to the Docket Office, if followed by hard copy 
    postmarked within two days. The OSHA Docket Office fax number is 
    (202)693-1648.
        Comments may also be submitted electronically through OSHA's 
    Internet site at URL, http://www.osha-slc.gov/e-comments/e-comments-
    ppe.html. Please be aware that information such as studies, journal 
    articles, and so forth cannot be attached to the electronic response 
    and must be submitted in quadruplicate to the above address. Such 
    attachments must clearly identify the respondent's electronic 
    submission by name, date, and subject, so that they can be attached to 
    the correct response.
        Informal public hearing. The hearing will be held in the auditorium 
    of the U.S. Department of Labor (Frances Perkins Building), 200 
    Constitution Avenue N.W., Washington, D.C.
    
    FOR FURTHER INFORMATION CONTACT: Ms. Bonnie Friedman, OSHA Office of 
    Information and Consumer Affairs, Room N-3647, U.S. Department of 
    Labor, 200 Constitution Avenue, NW, Washington, DC 20210. Telephone: 
    (202) 693-1999.
    
    SUPPLEMENTARY INFORMATION:
    
    I. Table of Contents
    
        The preamble and proposed standard are organized into twelve 
    sections as follows:
    
    I. Table of Contents
    II. Background
    III. Legal Considerations
    IV. Summary and Explanation of the Proposed Rule
        A. Introduction
        B. Reasons Why the Agency Believes that Employers Must Pay for 
    PPE
        C. Scope of the Proposed Rulemaking
        D. Current OSHA Requirements Concerning Payment for PPE
        E. Advisory Committee on Construction Safety and Health
        F. Explanation of Proposed Requirement
    V. Issues Pertaining to the Proposed Rule
    VI. Preliminary Economic Analysis
    VII. Public Participation
    VIII. State-plan States
    IX. OSHA's Supplementary Statement of Reasons For Its Interpretation 
    of 29 CFR 1910.132(a)
    X. List of Subjects in 29 CFR parts 1910, 1915, 1917, 1918, and 1926
    XI. Authority and Signature
    XII. Proposed Standards
    
    II. Background
    
        Employees often need to wear protective equipment, including 
    personal protective equipment (PPE), to be protected from injury, 
    illness, and death caused by exposure to workplace hazards. Throughout 
    this document OSHA uses the abbreviation PPE to cover all types of 
    protective equipment, including personal protective equipment, because 
    the abbreviation is widely used and understood to include all such 
    equipment. The abbreviation PPE includes protective equipment that an 
    employee uses or wears, such as fall arrest systems, safety shoes, and 
    protective gloves. There are many
    
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    situations in which PPE is necessary to protect employees from hazards. 
    For example, protective gloves can protect hands from lacerations, 
    burns, absorption of toxic chemicals, and abrasion. Safety shoes 
    protect an employee's feet from being crushed by falling objects. 
    Respirators can protect employees from being over-exposed to toxic 
    substances. There are many other examples.
        Many OSHA standards require employers to provide PPE to their 
    employees. Some indicate in general terms when PPE is to be worn, and 
    what is to be worn (see, for example, Sec. 1910.132). Other provisions 
    are very specific, such as 29 CFR 1910.266(d)(1)(iv), which requires 
    chain saw operators to wear protective leggings during specific 
    operations, and 29 CFR 1910.1027(g), which requires respiratory 
    protection for workers exposed to cadmium above a certain PEL, and 
    explicitly states that the employer must pay for the respirator.
        OSHA derived its PPE standards from many sources. In its first two 
    years, OSHA, pursuant to section 6(a) of the OSH Act, adopted many 
    Federal and national consensus standards dealing with PPE that had been 
    written by many different standards development committees. OSHA itself 
    has been issuing both health and safety standards requiring appropriate 
    PPE for 28 years. Because of the many sources for these standards, the 
    language requiring the use of PPE has varied.
        The language used in OSHA's PPE standards has generally been clear 
    that the employer must provide the PPE and ensure that employees wear 
    it. However, the regulatory language regarding the employer's 
    obligation to pay for the PPE has varied.
        OSHA's health standards issued after 1977 have made it clear both 
    in the regulatory text and in the preamble that the employer is 
    responsible for providing necessary PPE at no cost to the employee. 
    See, for example, OSHA's inorganic arsenic standard issued in 1978 at 
    29 CFR 1910.1018(h)(2) (i) and (j), and the recent respirator standard, 
    issued January 8, 1998 (63 FR 1152).
        The regulatory text and preamble discussion for some safety 
    standards have also been absolutely clear that the employer must both 
    provide and pay for PPE. See, for example, the logging standard at 29 
    CFR 1910.266(d)(1)(iii) and (iv). The logging standard does, however, 
    make an exception for certain types of logging boots (see 29 CFR 
    1910.266(d)(1)(v)). In the case of foot protection, such as logging 
    boots, paragraph (d)(l)(v) of that standard leaves the issue of who 
    pays for some kinds of logging boots open for negotiation and agreement 
    between the employer and employee.
        On the other hand, the regulatory text of some safety standards has 
    been less clear. For example, 29 CFR 1910.132(a) is the general 
    provision requiring employers to provide PPE when necessary to protect 
    employees. This provision states that the PPE must be provided, used, 
    and maintained in a sanitary and reliable condition. It does not 
    specifically state that the employer must pay for it. In some cases, 
    employers have interpreted this requirement to mean that they must pay 
    for as well as provide the PPE, while in other cases, employers have 
    understood this requirement to mean only that they must provide the 
    PPE.
        OSHA attempted to establish a policy and clarify the issue of 
    payment for required PPE in a memorandum to its field staff dated 
    October 18, 1994, ``Employer Obligation to Pay for Personal Protective 
    Equipment.'' OSHA stated that for all PPE standards the employer must 
    both provide, and pay for, the required PPE, except in limited 
    situations. The memorandum indicated that where PPE is very personal in 
    nature and usable by the worker off the job, such as is often the case 
    with steel-toe safety shoes (but not metatarsal foot protection), the 
    issue of payment may be left to labor-management negotiations. This 
    memorandum was intended to clarify the Agency's policy with regard to 
    payment for required PPE.
        Very recently, the Occupational Safety and Health Review Commission 
    declined to accept as Agency policy the interpretation embodied in the 
    1994 memorandum as it applied to Sec. 1910.132(a), OSHA's general PPE 
    standard for general industry, in Secretary of Labor v. Union Tank Car, 
    OSHRC Docket No. 96-0563. In that case, an employer was issued a 
    citation for failing to pay for metatarsal foot protection and welding 
    gloves. The Commission vacated the citation, finding that the Secretary 
    had failed to adequately explain the policy outlined in the 1994 
    memorandum in light of several earlier letters of interpretation from 
    OSHA that were inconsistent with that policy.
        OSHA believes that it is important that the employer both provide 
    and pay for PPE and ensure that employees wear it when necessary. OSHA 
    believes that this view reflects the direction of the OSH Act and is 
    consistent with the legislative history. Employers must maintain a safe 
    place of work in all its aspects, and may not receive a competitive 
    advantage by failing to pay for necessary safety equipment, including 
    personal protective equipment. OSHA has considered the requirement for 
    employer payment in many specific rulemakings and has concluded, based 
    on the record in each case, that this requirement will increase 
    employee protection.
        The present proposal will also lead to greater consistency among 
    OSHA standards. Accordingly, OSHA is proposing to require that the 
    employer pay for all PPE required by OSHA standards, except for safety-
    toe protective footwear and prescription safety eyewear that meet all 
    three of the following conditions: (1) the employer permits such 
    footwear or eyewear to be worn off the job-site; (2) the footwear or 
    eyewear is not used at work in a manner that renders it unsafe for use 
    off the job-site; and (3) such footwear or eyewear is not designed for 
    special use on the job. Employers are not required to pay for the 
    logging boots specified in 29 CFR 1910.266(d)(1)(v), as discussed 
    above.
        OSHA believes that the proposed requirement will better protect 
    employees from work-related illness, injury, and death. Employers are 
    in a better position to identify and select the correct equipment and 
    to maintain it properly. They have the financial resources to purchase 
    PPE of necessary quality and to pay for replacements as necessary. The 
    statutory reasons for requiring the employer to pay for PPE are 
    discussed at greater length in the Legal Considerations section of this 
    preamble, and the health and safety reasons are discussed below, in the 
    Summary and Explanation section of this preamble.
        OSHA preliminarily concludes, for the reasons stated, that the 
    Agency's standards should clearly require the employer to provide and 
    pay for PPE. Accordingly, OSHA is proposing such a requirement. 
    Rulemaking under section 6(b) of the Act will provide for full public 
    input on all issues. The standard will, once promulgated, provide clear 
    direction to employers and employees.
        OSHA is proposing this requirement for general industry, 
    construction, shipyards, longshoring, and marine terminals. OSHA has 
    consulted the Advisory Committee for Construction Safety and Health on 
    this proposal, as required by the Construction Safety Act.
        OSHA requests comments on all relevant issues, including the 
    specific issues listed in the Issues section of this preamble.
    
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    III. Legal Considerations
    
    A. General Authority Under the OSH Act
    
        The Occupational Safety and Health Act and the statute's 
    legislative history demonstrate that employers are expected to pay the 
    costs of complying with OSHA's safety and health standards. At section 
    2(a) of the OSH Act, Congress announced its determination that 
    occupational injury and illness should be eliminated as much as 
    possible: ``The Congress finds that occupational injury and illness 
    arising out of work situations impose a substantial burden upon, and 
    are a hindrance to, interstate commerce in terms of lost production, 
    wage loss, medical expenses, and disability compensation payments.'' 29 
    U.S.C. 651(a). Congress therefore declared ``it to be its purpose and 
    policy . . . to assure so far as possible every working man and woman 
    in the Nation safe and healthful working conditions.'' 29 U.S.C. 
    651(b).
        To achieve this end, the Act directs that ``employers shall comply 
    with occupational safety and health standards . . . issued pursuant to 
    this Act,'' 29 U.S.C. 654(a) (2), and limits OSHA's enforcement 
    authority to employers. 29 U.S.C. 658, 659(a). See United Steelworkers 
    of America v. Marshall, 647 F.2d 1189, 1230-1231 (D.C. Cir. 1980). This 
    statutory scheme allocates to employers sole legal responsibility for 
    achieving compliance with safety and health standards. Atlantic & Gulf 
    Stevedores v. OSHRC, 534 F.2d 541, 533 (3d Cir. 1976). Because 
    employers are charged with the responsibility for achieving safe and 
    healthful workplaces, they must bear the concomitant financial 
    obligation. Id. The Act's terms, including the definition in section 
    3(8) of an occupational safety and health standard as one which 
    ``requires . . . the adoption or use of one or more practices, means, 
    methods, operations, or processes, reasonably necessary or appropriate 
    to provide safe or healthful places of employment,'' 29 U.S.C. 652(8), 
    give OSHA broad discretion to devise means to achieve safe and 
    healthful workplaces and to charge employers for the costs of 
    reasonably necessary requirements. United Steelworkers, 647 F.2d at 
    1230-1231.
        The employer's general financial responsibility is further 
    evidenced in the Act's legislative history in the Cotton Dust decision 
    (American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 519-
    521(1980)), the Supreme Court interpreted the legislative history as 
    showing that Congress was aware of the Act's potential to impose 
    substantial costs on employers but believed such costs to be 
    appropriate when necessary to create a safe and healthful working 
    environment. Congress thus viewed the costs of health and safety as a 
    cost of doing business. Senator Yarborough, a co-sponsor of the [Act], 
    stated:
    
    We know the costs would be put into consumer goods but that is the 
    price we should pay for the 80 million workers in America . . .
    
    Senator Eagleton commented that:
    
    [the costs that will be incurred by employers in meeting the 
    standards of health and safety to be established under this bill 
    are, in my view, reasonable and necessary costs of doing business.
    
    Other Members of Congress voiced similar views (American Textile Mfrs. 
    Inst., Inc. v. Donovan, 452 U.S. 490, 519-521 (1980) (ATMI) (internal 
    citations omitted, original emphasis)). See also Forging Indus, Ass'n 
    v. Secretary of Labor, 773 F.2d 1436, 1451 (4th Cir. 1985) (en banc) 
    (which stated that, in view of the Supreme Court's ``clear statement'' 
    in ATMI about Congress' intent that employers bear the costs of safety 
    and health, OSHA may logically require employers to pay for hearing 
    protectors under the hearing conservation standard); S. Rep. No. 91-
    1282, 91st Cong. 2d Sess. 4 (1970), reprinted in, Senate Comm. On Labor 
    and Public Welfare, 92nd Cong. 1st Sess., Legislative History of the 
    Occupational Safety and Health Act of 1970 (Legislative History) 324, 
    510-511, 854, 1150, 1188, 1201.
        Congress was also concerned that the costs imposed by OSHA rules be 
    borne fairly by employers within and across all affected industries and 
    believed that uniform enforcement was crucial to reduce or eliminate 
    the disadvantage that a conscientious employer might experience where 
    inter-industry or intra-industry competition is present. Legislative 
    History at 854; ATMI, 452 U.S. at 521. It also recognized that many 
    small firms might not be able to make the necessary investment in 
    safety and health unless all firms were required to do so. Legislative 
    History at 144. For these reasons, Congress did not intend to allow 
    individual employers to decide who should pay the costs of complying 
    with OSHA standards. See United Steelworkers, 647 F.2d at 1236; Forging 
    Indus. Ass'n, 773 F.2d at 1451-1452.
    
    B. Other Statutory Considerations
    
        In Industrial Union Department, AFL-CIO v. American Petroleum 
    Institute, 448 U.S. 607 (1980) (Benzene), the Supreme Court ruled that, 
    before OSHA can issue a new standard, the Agency must find that the 
    hazard being regulated poses a significant risk to workers and that a 
    new, more protective, standard is ``reasonably necessary and 
    appropriate'' to reduce that risk. The requirement to find a 
    significant risk does not mean, however, that OSHA must ``wait for 
    deaths to occur before taking any action,'' id. at 655, or ``support 
    its findings with anything approaching scientific certainty.'' Id. at 
    656. ``[T]he requirement that a `significant' risk be identified is not 
    a mathematical straightjacket.'' Id. at 655.
        The Act allows OSHA substantial latitude to devise means to reduce 
    or eliminate significant workplace hazards. Clearly, OSHA need not make 
    individual quantitative or qualitative risk findings for every 
    regulatory requirement in a standard. Once OSHA has determined that a 
    significant risk of material impairment of health or well being is 
    present, and will be redressed by a standard, the Agency is free to 
    develop specific requirements that are reasonably related to the Act's 
    and standard's remedial purpose. OSHA standards are often designed to 
    reduce risk through an integrated system of safety practices, 
    engineering controls, employee training, and other ancillary 
    requirements. Courts have upheld individual requirements based on 
    evidence that they increase the standard's effectiveness in reducing 
    the risk posed by significant workplace hazards. See Forging Indus. 
    Ass'n., 773 F.2d at 1447-1452 (finding ancillary provisions of hearing 
    conservation standard, including requirements for audiometric testing, 
    monitoring, and employer payment for hearing protectors, reasonably 
    related to the standard's purpose of achieving a safe work 
    environment); United Steelworkers, 647 F.2d at 1237-1238 (finding lead 
    standard's medical removal protection (MRP) provisions reasonable).
        Similarly, the courts have held that the Agency must consider other 
    ancillary provisions that could provide additional protection if the 
    standard's exposure limits will not eliminate significant risk. 
    Building and Constr. Trades Dept. AFL-CIO v. Brock, 838 F.2d 1258, 1271 
    (D.C. Cir. 1988). (Remand to consider including in asbestos standard 
    additional provisions to reduce smoking-related asbestos risks); 
    National Grain & Feed Ass'n v. OSHA, 866 F.2d 717, 734-735 (5th Cir. 
    1989) (directing OSHA to consider extending the action level for clean-
    up measures from certain priority areas to the entire facility where 
    such an
    
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    extension might further reduce the risk of fire and explosions).
        OSHA standards must also be technologically and economically 
    feasible, and cost effective. 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 can reasonably be expected to be developed. ATMI, 452 U.S. at 513. 
    A standard is economically feasible if industry can absorb or pass on 
    the cost of compliance without threatening its long term profitability 
    or competitive structure. ATMI, 452 U.S. at 530 n.55.
        A standard is cost effective if the protective measures it requires 
    are the least costly of the available alternatives that achieve the 
    same level of protection. ATMI, 452 U.S. at 514 n.32; International 
    Union, UAW v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994). Finally, if OSHA 
    promulgates a rule that differs substantially from an existing national 
    consensus standard, the Agency must publish in the Federal Register a 
    statement of reasons why the rule adopted will better effectuate the 
    purposes of the Act than the national consensus standard. 29 U.S.C. 
    655(b)(8).
    
    C. Historical Overview: OSHA's Determinations in Prior Rulemakings That 
    Employers Should Pay for Necessary Personal Protective Equipment
    
        Since 1978, OSHA has promulgated many occupational health and 
    safety standards explicitly requiring employers to furnish personal 
    protective equipment ``at no cost to employees.'' 1
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        \1\ See 29 CFR 1910.95(i)(1), (i)(3) (hearing conservation); 29 
    CFR 1910.1001(g)(1), (g)(2)(i), (h)(1) (asbestos); 29 CFR 
    1910.1018(h)(1), (h)(2)(i), (j)(1) (inorganic arsenic); 29 CFR 
    1910.1025(f)(1), (g)(1) (lead); 29 CFR 1910.1027(g)(1), (i)(1) 
    (cadmium); 29 CFR 1910.1028(g)(1), (g)(2)(i), (h) (benzene); 29 CFR 
    1910.1030(d)(3)(i), (d)(3)(ii) (bloodborne pathogens); 29 CFR 
    1910.1043(f)(1), (f)(3) (cotton dust); 29 CFR 1910.1044(h)(1), 
    (h)(2), (h)(3)(i), (j)(1) (1,2-dibromo-3-chloropropane); 29 CFR 
    1910.1045(h)(2)(i), (j)(1) (acrylonitrile); 29 CFR 
    1910.1047(g)(2)(i), (g)(4) (ethylene oxide); 29 CFR 1910.1048(g)(1), 
    (h) (formaldehyde); 29 CFR 1910.1050(h)(2)(i), (i)(1) (4,4, 
    methylenedianiline); 29 CFR 1910.1051(h)(1), (i) (1,3-butadiene); 29 
    CFR 1910.1052 (g)(1), (h)(1) (methylene chloride); 29 CFR 
    1910.146(d)(4)(iv) (confined spaces); 29 CFR 1910.156(e)(1)(i) (fire 
    brigades); 29 CFR 1910.266(d)(1)(iii), (d)(1)(iv), 
    (d)(1)(vi),(d)(1)(vii) (logging). See also OSHA's recently revised 
    respiratory protection standard, promulgated January 8, 1998, 63 FR 
    1271.
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        In these rulemakings, OSHA has stated that language explicitly 
    requiring that PPE be furnished without cost to employees is necessary 
    to effectuate the purposes of the Act and to ``clarif[y] OSHA's 
    position which has long been implicit in health standards 
    proceedings.'' See, e.g., 42 FR 27387 (June 23, 1978) (cotton dust 
    preamble); 43 FR 11523 (March 17, 1978) (dibromo-3-chloropropane 
    preamble); 52 FR 46266 (Dec. 4, 1987) (formaldehyde preamble). OSHA has 
    also concluded in its rulemaking on the Cancer Policy that personal 
    protective equipment should be treated no differently from engineering 
    controls for the purposes of cost-allocation (45 FR 5261, Jan. 22, 
    1980):
    
        The requirement that employers pay for protective equipment is a 
    logical corollary of the accepted proposition that the employer must 
    pay for engineering and work practice controls. There is no rational 
    basis for distinguishing the use of personal protective equipment 
    [from other controls]. The goal in each case is employee protection; 
    consequently the responsibility of paying for the protection should, 
    in each case, rest on the employer.
    
        OSHA has further determined that requiring employers to pay for 
    personal protective equipment contributes to increased health and 
    safety protection in several ways. The employer is most knowledgeable 
    about hazards existing in the workplace and is therefore best able to 
    select and maintain appropriate protective equipment. Requiring 
    employers to purchase personal protective equipment ensures that they 
    retain control over the selection, issuance, maintenance, and use of 
    the devices. See 43 FR 19619 (May 5, 1978) (inorganic arsenic 
    preamble); 46 FR 4153 (hearing conservation preamble). Shifting the 
    financial burden to employees, on the other hand, ``risks losing the 
    necessary control over the organized and consistent selection, 
    issuance, maintenance and use of such equipment.'' 46 FR 4153 (hearing 
    conservation preamble).
        OSHA has also concluded that charging employers with the cost of 
    personal protective equipment, as well as other requirements imposed by 
    standards, is necessary to ensure the employee's voluntary cooperation 
    in the employer's safety program. In requiring employers to pay for 
    hearing protectors as part of the hearing conservation standard, OSHA 
    relied upon the testimony of the director of the Safety and Health 
    Department of the International Brotherhood of Teamsters:
    
        [an] employer's attempt to require its employees to purchase 
    their own personal ear protective devices would cause resentment 
    among the workers and clearly demonstrate to them the lack of 
    commitment on the part of their employer in preventing hearing loss. 
    Such a requirement would discourage the use of ear protective 
    devices and would create an adversarial atmosphere in regard to the 
    hearing conservation program. 46 FR 4153 (emphasis added).
    
        OSHA has found that the need to ensure voluntary cooperation by 
    employees was also an important reason to require employers to pay for 
    other protections in standards, including medical examinations and 
    medical removal protection (MRP). In promulgating the lead standard, 
    OSHA relied upon extensive evidence that employees' fears of adverse 
    economic consequences from participation in a medical surveillance 
    program could seriously undermine efforts to improve employee health. 
    43 FR 54442-54449 (Nov. 21, 1978). OSHA cited data from numerous 
    sources to show that employees' concerns about the possible loss of 
    income would make them reluctant to participate meaningfully in any 
    program that could lead to job transfer or removal. Id. OSHA 
    promulgated the lead standard's M.R.P. provision ``specifically to 
    minimize the adverse impact of this factor on the level and quality of 
    worker participation in the medical surveillance program.'' Id. at 
    54449.
        Courts have upheld OSHA's statutory authority to charge employers 
    with the costs of complying with standards and have affirmed the 
    Agency's findings of benefits accruing from this requirement. In 
    reviewing the lead standard, the D.C. Circuit found that ``[the] scheme 
    of the statute, manifested in both the express language and the 
    legislative history . . . appears to permit OSHA to charge employers 
    the cost of any new means it devises to protect workers.'' United 
    Steelworkers, 647 F.2d at 1231. The court found reasonable OSHA's 
    determination that wage retention and other M.R.P. benefits were 
    necessary in view of employee resistance to programs that could result 
    even in limited loss of earnings. Id. at 1237. Moreover, the court 
    found that OSHA could legitimately consider benefits that were more 
    indirect. It upheld the standard's requirement that employers pay for 
    medical opinions from physicians who are selected by employees, in part 
    because employees will be more likely to cooperate in, and improve the 
    accuracy of, medical examinations performed by physicians they trust. 
    Id. at 1239. See also Forging Indus. Ass'n, 773 F.2d at 1451-1452 
    (upholding the requirement in the hearing conservation standard that 
    employers pay for hearing protectors).
        Some have suggested that employee payment for PPE helps encourage 
    employees to maintain their PPE properly. OSHA notes that employees, 
    because their own safety is at stake, already have significant 
    incentives to assure that PPE is maintained in a manner that assures 
    that the PPE will
    
    [[Page 15406]]
    
    function safely. Requiring employee payment for PPE could encourage 
    employees to consider a trade-off between assuring the safety of the 
    PPE and assuring its longevity, even though the PPE may be worn or 
    damaged to the point that it no longer functions properly. Employee 
    payment could also lead to perverse incentives for employers. Given a 
    choice between engineering controls that the employer must pay for, and 
    PPE that would be paid for by employees, employers would have a strong 
    incentive to use PPE even though engineering controls would be more 
    protective and might even be cheaper. OSHA views the theoretical loss 
    of some employee incentive to maintain equipment as minor compared to 
    the importance of assuring employers provide a safe and healthy 
    workplace.
    
    D. The Proposed PPE Revisions Comply With Statutory Criteria
    
        OSHA believes that the proposed PPE revisions readily comply with 
    the statutory criteria outlined above. In the Agency's view, the 
    proposed language that, with certain exceptions, employers must provide 
    personal protective equipment under existing standards ``at no cost to 
    employees,'' does no more than clarify a requirement legally implicit 
    under the Act. Congress itself intended to impose the costs of safety 
    and health on employers and charged employers with sole responsibility 
    for compliance with standards. ATMI, 452 U.S. at 520-5211; United 
    Steelworkers, 647 F.2d at 1231. The requirement that employers pay for 
    the means necessary to achieve compliance is implicit in the statute 
    itself, and therefore, is properly an implied term of every 
    occupational safety or health standard.
        Based on the OSH Act's implicit cost-allocation scheme, OSHA has 
    interpreted standards requiring employers to ``provide'' personal 
    protective equipment to mean that this equipment must be furnished to 
    employees at no charge. For example, OSHA has interpreted the coke oven 
    emissions standard, 29 CFR 1910.1029(h)(1), which states that ``the 
    employer shall provide and assure the use of appropriate protective 
    clothing and equipment,'' to require that personal protective equipment 
    be furnished at no charge to coke oven workers. The Occupational Safety 
    and Health Review Commission held that interpreting ``provide'' to mean 
    ``pay for'' was consistent with the statutory intent and with the 
    Agency's prior published interpretation. Secretary of Labor v. Erie 
    Coke Corp., 15 O.S.H. Cas. (BNA) 1561, 1563-1565 (Review Comm. 1992).
        OSHA has also interpreted its general personal protective equipment 
    standards to require that equipment be furnished at no cost to 
    employees. In 1994, OSHA issued a compliance memorandum entitled 
    ``Employer Obligation to Pay for Personal Protective Equipment.'' In 
    this compliance memorandum, OSHA interpreted 29 CFR 1910.132, 29 CFR 
    1926.95, and other PPE standards to require employers to provide PPE at 
    no cost to employees, except where the equipment is personal in nature 
    and usable off the job.
        OSHA recognizes that the Occupational Safety and Health Review 
    Commission has subsequently rejected OSHA's policy interpretation of 29 
    CFR 1910.132 as requiring employer payment for PPE. See Union Tank Car 
    Co., OSHRC No. 96-0563 (assuming the 1994 memorandum represented a 
    change in position, and finding that OSHA had not presented an adequate 
    justification for the change).
        Section IX of this preamble, OSHA's Supplementary Statement of 
    Reasons for its Interpretation of 29 CFR 1910.132(a), contains a 
    detailed explanation of OSHA's interpretation of section 1910.132(a), 
    which addresses in detail the Commission's concerns and demonstrates 
    that the Agency's reading of its general personal protective equipment 
    standard is consistent with the statutory scheme and is reasonable.
        In OSHA's view, the proposed rule simply clarifies the employer's 
    pre-existing obligations under the personal protective equipment 
    standards. See Edison Elec. Inst. v. OSHA, 849 F.2d 611, 620 (D.C. Cir. 
    1988); OSHA's Supplemental Statement of Reasons. Assuming, however, 
    that the language in existing Sec. 1910.132 does not clearly convey a 
    requirement for employer payment, the proposed rule is necessary and 
    appropriate to conform the standard to the requirements of the statute 
    and to the position the Agency has consistently adopted in rulemaking 
    proceedings for more than twenty years.
        The Agency believes, moreover, that implementation of the proposed 
    revisions will contribute in a significant way to a safer work 
    environment. The existing PPE standards reflect a determination that 
    the use of PPE is necessary to reduce a significant risk of 
    injury.2 OSHA considers the proposed revisions to be 
    ancillary requirements of the existing PPE standards. They are 
    reasonably related to the existing standards' purpose of preventing 
    injury by requiring the provision and use of appropriate personal 
    protective equipment.
    ---------------------------------------------------------------------------
    
        \2\ For existing standards adopted as national consensus or 
    established Federal standards pursuant to section 6(a) of the Act, 
    the determination of significant risk is implied in Congress's 
    direction that such standards should be promulgated as 
    ``occupational safety or health standard[s].'' 29 U.S.C. 655(a). The 
    Court in Benzene interpreted the definition of ``occupational safety 
    and health standard'' in section 3(8) of the Act to mean a standard 
    that addresses a significant risk of harm. 448 U.S. at 639-642.
    ---------------------------------------------------------------------------
    
        Moreover, OSHA believes that the principle expressed in National 
    Grain and Feed, discussed above, provides analogous support for this 
    proposed rule. In amending 29 CFR 1910.132 in 1994 to include new 
    requirements for, among other things, hazard assessments and employee 
    training, the Agency examined PPE use in general industry. OSHA found 
    that, although the standard had been in effect since 1971, the data 
    demonstrated that a significant risk of injury attributable to the non-
    use or misuse of PPE remained. See 59 FR 16335 (April 6, 1994). OSHA 
    determined that compliance with the final rule would result in more 
    widespread acceptance and use of appropriate PPE, and would, therefore, 
    significantly reduce the risk of injury. However, OSHA did not find 
    that compliance with the rule would eliminate the significant risk due 
    to the non-use or misuse of PPE. As discussed below, there is evidence 
    that requiring employers to pay for PPE will result in a further 
    substantial reduction in the risk of non-use or misuse of PPE by 
    centralizing the control over PPE programs, and by eliminating economic 
    disincentives to the voluntary use of PPE. Cf. National Grain and Feed, 
    866 F.2d at 735.
        As OSHA found in promulgating the hearing conservation standard, 
    requiring employers to pay for personal protective equipment ensures 
    that employers retain control over the selection, issuance, 
    maintenance, and use of such equipment. OSHA believes that ensuring 
    centralized control over these critical functions promotes a more 
    organized and consistent approach to personal protective equipment 
    requirements. See 46 FR 4153 (Jan 16, 1981). See also 43 FR 19619 
    (Inorganic Arsenic) (May 5, 1978).
        OSHA also believes that employees are more likely to cooperate in 
    achieving full compliance with existing standards if protective 
    equipment is provided at no charge. The evidence adduced during the 
    rulemaking for the lead standard demonstrated that many employees would 
    be reluctant to participate fully in a program that could result in a 
    loss of income. OSHA
    
    [[Page 15407]]
    
    believes that this problem is not limited to MRP provisions. In 
    Secretary of Labor v. Phelps Dodge Corp., 11 O.S.H. Cas. (BNA) 1441, 
    1443 (Rev. Comm. 1983), the Review Commission held that the employer 
    did not provide medical examinations under the Inorganic Arsenic 
    standard ``without cost to the employee'' when it allowed employees to 
    take examinations only during their free time and did not reimburse 
    them for travel expenses or the time consumed in taking the 
    examinations. The Commission noted the ALJ's finding that when 
    employees were required to provide their own transportation to and from 
    the hospital and to sacrifice their personal time to take examinations, 
    42% of them failed to participate.
        Such evidence, showing that employees often make decisions that 
    risk their health and safety to avoid suffering economic loss, is 
    relevant to the proposed revision. It is certainly reasonable to 
    believe that employees who are furnished personal protective equipment 
    at no charge are more strongly motivated to wear it, and to replace it 
    promptly when worn or damaged, than are employees who must purchase 
    such equipment. Indeed, OSHA is aware of evidence presented in 
    enforcement litigation that employees have continued to use worn-out or 
    defective items of personal protective equipment because of the cost of 
    replacing this equipment. In the Union Tank case, the employee 
    representative presented an affidavit that some employees taped or 
    wrapped wire around their damaged metatarsal safety boots in order to 
    avoid having to pay up to $130 per pair to replace them. Similarly, in 
    Ormet Primary Aluminum Corp., OSHRC Docket No. 96-0470, an employee 
    testified that he continued to wear safety boots, even though the 
    protective steel toes were exposed and posed an electrocution hazard, 
    because he could not afford a new pair. The employee also testified 
    that some workers put a cement-like substance over the steel toes of 
    their boots when the leather covering wore away, but that this practice 
    was hazardous because the substance was flammable.
        Based on the available evidence, OSHA preliminarily concludes that 
    the proposed revisions will significantly enhance compliance with 
    existing standards. OSHA estimates that the proposed rule will prevent 
    over 47,000 injuries that occur annually as a result of the non-use or 
    misuse of personal protective equipment, including seven fatal 
    injuries. See Section VI., Preliminary Economic Analysis.
        OSHA has also preliminarily concluded that excepting safety-toe 
    footwear and prescription safety eyewear from the payment requirement 
    is appropriate and does not conflict with the legislative intent. OSHA 
    has long taken the position that employers should not be required to 
    pay for safety-toe footwear because it is personal in nature and 
    frequently worn off the job. See The Budd Co., 1 O.S.H. Cas. (BNA) 1548 
    (Rev. Comm. 1974). OSHA believes that prescription safety eyewear 
    shares these characteristics. Because of the special nature of safety-
    toe footwear and prescription safety eyewear, the statutory and policy 
    reasons for requiring employers to pay for other types of PPE do not 
    carry the same weight for these types of PPE 3. OSHA 
    believes that there is little statutory justification for requiring 
    employers to pay for such personal equipment if it is used away from 
    the workplace and if all three of the proposed conditions are met: (1) 
    The employer permits the footwear or eyewear to be worn off the job-
    site; (2) the footwear or eyewear is not used at work in a manner that 
    renders it unsafe for use off the job-site; and (3) such footwear is 
    not designed for special use on the job.
    ---------------------------------------------------------------------------
    
        \3\ In her brief to the Commission in Budd filed in 1973, the 
    Secretary stated her interpretation that 29 CFR 1910.132(a) does not 
    require employers to pay for safety shoes. The Secretary noted that 
    ``safety shoes are purchased by size, are available in a variety of 
    styles, and are frequently worn off the job, both for formal and 
    casual wear. Furthermore, it is neither feasible for a different 
    employee to wear the shoes each day nor feasible that upon resigning 
    from the position an employee will leave the shoes behind to be worn 
    by another individual.'' See Section IX., OSHA's Supplemental 
    Statement of Reasons For Its Interpretation of 29 CFR 1910.132(a).
    ---------------------------------------------------------------------------
    
        The Commission and one court of appeals have agreed with the 
    Secretary's interpretation that 29 CFR 1910.132(a) does not require 
    employees to pay for safety shoes. The Budd Co. O.S.H. Cas. (BNA) 1548 
    (Rev.Comm. 1974); 513 F.2d 201, 205 (3d Cir. 1975). See also United 
    Steelworkers, 647 F.2d at 1231 n.66 (noting special character of 
    safety-toe protective footwear which the employee would wear off-the-
    job as well as on-the-job). Moreover, OSHA's logging standard (see 29 
    CFR 1910.266 (d)(1)(v)) provides analogous support for the proposed 
    exceptions for safety shoes and prescription safety eyewear. OSHA 
    excepted logging boots from among the types of equipment that employers 
    must provide at no cost under the logging standard, based in part on 
    evidence that logging boots are personal in nature and used away from 
    work. See 59 FR 51684 (Oct. 12, 1994). See also section IX., OSHA's 
    Supplementary Statement of Reasons for its Interpretation of 29 CFR 
    1910.132(a). The three conditions OSHA is proposing to apply to the 
    exception for safety-toe footwear and prescription safety eyewear all 
    relate to off-site use. For example, if the employer prohibits off-site 
    use of the footwear or eyewear, employees would clearly not be able to 
    wear it off the job, and the exception would not apply. Similarly, if 
    the footwear or eyewear is used at work in a way that makes it unsafe 
    for use off the job, e.g., safety-toe footwear is worn in a lead 
    chromate pigment plant, it would be unsafe for the employee to wear it 
    at home, and the exception would not apply. Finally, if the footwear or 
    eyewear is designed for special use on the job, e.g., the eyewear is 
    built into a welding mask, or the footwear has built-in metatarsal 
    guards as well as safety-toes, it could not be worn off-site, and the 
    exception would not apply.
        If one or more of these conditions is not met for safety-toe 
    footwear or prescription eyewear, the exception for these types of PPE 
    does not apply, and the employer would be required to pay for the PPE.
        For these reasons, OSHA has preliminarily concluded that employers 
    should not be required to pay for safety-toe protective footwear and 
    prescription safety eyewear, provided that all three of the excepted 
    conditions are met. However, as discussed in other sections of this 
    document, OSHA seeks comment on whether these exceptions, and the 
    conditions restricting their applicability, are appropriate and whether 
    other types of personal protective equipment should be excepted or 
    other limiting conditions should be considered.
        OSHA believes that compliance with the proposed standard is 
    technologically feasible because the PPE affected by this rulemaking 
    has already been shown to be technologically feasible in numerous other 
    rulemakings, e.g., OSHA's 1994 PPE rulemaking and the individual 
    rulemakings requiring particular types of PPE (e.g., fall protection in 
    construction, and various shipyard employment standards). The affected 
    PPE, as shown by the record evidence in these rulemakings, is widely 
    manufactured, distributed, and used in workplaces in all industries. 
    OSHA believes that the proposed standard is also economically feasible 
    because the PPE of concern has been shown to be economically feasible 
    in the earlier rulemakings referred to above and, additionally, for 
    this proposed rule, as detailed in Section VI., Preliminary Economic 
    Analysis. The proposed rule merely shifts some costs previously borne 
    by employees to their employers.
    
    [[Page 15408]]
    
    Indeed, in its economic analyses of other rules requiring PPE, OSHA has 
    always assumed that PPE would be paid for by the employer. The 
    Preliminary Economic Analysis also indicates that to the extent that, 
    the proposal enhances PPE use, employers will save money because their 
    employees will avoid the injuries and illnesses that would otherwise 
    continue to occur from the improper use of PPE. Finally, this preamble 
    explains why the proposed regulatory text will enhance safety 
    protection for workers and will better effectuate Congress' intent that 
    employers pay for the costs of compliance with OSHA standards. 29 
    U.S.C. 655(b)(8). Accordingly, the proposed standard complies with all 
    applicable statutory criteria.
    
    IV. Summary and Explanation of the Proposed Rule
    
    A. Introduction
    
        OSHA is proposing to revise its standards requiring employers to 
    provide PPE to clarify that the employer must pay for the PPE, except 
    for safety-toe footwear and prescription safety eyewear that meets all 
    three conditions--the employer permits off-site use, the footwear or 
    eyewear is safe for off-site use, and the footwear or eyewear is not 
    designed specially for on-site use. The logging boots required by 29 
    CFR 1910.266(d)(1)(v) are also excepted from the employer payment 
    requirement. This proposal applies to standards in the following 
    industry sectors: general industry, construction, and maritime 
    (including shipyards, marine terminals, and longshoring operations). It 
    does not apply to agriculture.
        The Agency believes that requiring employers to pay for PPE is 
    central to the effective implementation of the Act. As noted earlier in 
    this preamble, OSHA is using the abbreviation PPE to cover all 
    protective equipment, including personal protective equipment, that is 
    provided to employees to protect them from workplace hazard. However, 
    some inconsistent statements and interpretations by OSHA over the years 
    regarding the Agency's PPE payment policy, and the recent Union Tank 
    decision by the Review Commission, have now made it difficult for the 
    Agency to uniformly enforce this policy.
        Therefore, OSHA is proposing to resolve this issue by clearly 
    identifying, through regulation, who is required to pay for PPE. OSHA 
    intends this rulemaking to lead to the consistent application of the 
    Agency's protective equipment requirements throughout the regulated 
    community and by Agency compliance personnel. The rulemaking process 
    will also give interested parties an opportunity to participate in the 
    Agency's decisions through written comments and informal public 
    hearings.
        The following discussion presents the Agency's reasons and 
    preliminary conclusions regarding the proposed revisions to its PPE 
    standards, and explains the proposed requirements.
    
    B. Reasons Why the Agency Believes That Employers Must Pay for PPE
    
        1. The OSHAct. The Occupational Safety and Health Act of 1970 
    requires employers to provide a safe and healthful workplace for their 
    employees. This mandate includes the financial obligation of employers 
    to provide controls to address hazards that could cause injury or 
    physical harm to their employees. (See the Legal Considerations section 
    of this preamble for a more detailed discussion of the employer's 
    obligation to pay for workplace protections.)
        2. PPE is also a hazard control measure. Most standards require 
    employers to implement engineering controls, such as ventilation or 
    barriers, and administrative controls, such as regulated areas or 
    danger zones, because these are typically thought to be the primary 
    ways to reduce hazardous exposures to employees. There has never been 
    any doubt that employers pay for these controls.
        PPE is another type of control measure that is often necessary to 
    reduce exposures to health and safety hazards. In many cases, PPE use 
    supplements engineering, work practice, and administrative controls 
    where such controls do not provide adequate protection. In some 
    circumstances, such as in some maintenance work, PPE is used as the 
    sole or primary means to protect employees. Consequently, it is 
    appropriate for OSHA standards to require employers both to implement 
    and to pay for PPE as a hazard control measure, just as they must do 
    for engineering and administrative controls.
        OSHA standards require many different types of PPE to protect 
    employees from the variety of hazards in the workplace. Table I 
    indicates the kinds of PPE required by OSHA standards.
    
                 Table I.--List of Personal Protective Equipment
    ------------------------------------------------------------------------
     
    -------------------------------------------------------------------------
                           Personal fall arrest system
     
    --Safety belts.
    --Body belts.
    --Lifelines.
    --Lanyards.
    --Harnesses.
    --Pole climbing systems.
    --Climbing spikes.
    --Ladder safety device belts.
    --Window cleaners' safety straps.
     
                              Face & eye protection
     
    --Side shields.
    --Goggles.
    --Face shields/masks.
    --Safety glasses.
    --Welding goggles.
     
                       Hand protection and arm protection
     
    --Gloves (disposable, fabric, leather mesh, aluminized, chemical
     resistant).
    --Rubber sleeves.
    --Hand shields.
     
                               Hearing protection
     
    --Ear plugs.
    --Ear muffs.
                                 Head protection
     
    --Headgear.
    --Helmets.
    --Hard hats.
    --Welding helmets.
     
                                 Foot protection
     
    --Safety shoes.
    --Safety boots.
    --Logging boots.
    --Shin covers.
    --Shoe covers.
    --Logging chaps & kevlar pants/leg protection.
    --Metatarsal protection.
     
                             Respiratory protection
     
    --Air-purifying respirators.
    --Atmosphere-supplying respirators, including supplied-air respirators
     and self-contained breathing apparatus.
    --Escape-only respirators.
    --Filtering face pieces (dust masks).
     
                               Protective clothing
     
    --Aprons.
    --Encapsulating chemical protective suits.
    --Flame resistant jackets and pants.
     
                                Fire fighting PPE
     
    --Head protection.
    --Face & eye protection.
    --Protective coats and trousers.
    --Foot protection.
    --Hand protection.
    --Proximity suits.
     
                              Protective equipment
     
    --Insulating blankets.
    --Matting.
    --Barriers.
    --Mouthpieces.
    --Finger Cots.
     
                              Lifesaving equipment
     
    --Life preservers.
    --Life jackets.
    --Reflective work vests.
    --Ring life buoys.
    --Retrieval systems.
     
                Protective clothing for health-related substances
     
    --Coveralls.
    --Full body work clothing.
    --Laboratory coats.
    --Gowns.
    
    [[Page 15409]]
    
     
    --Disposable paper clothing.
    --Shoe covers.
    ------------------------------------------------------------------------
    
        3. Employers are in the best position to provide the correct type 
    of protective equipment and keep it in repair. OSHA believes that 
    requiring employers to pay for PPE will directly improve safety and 
    health because the employer is in the best position to select, order, 
    and obtain the proper type and design of PPE, ensure that it is of the 
    necessary quality, and maintain it.
        Employers are required to perform a hazard assessment of the 
    workplace and select the correct type of PPE to protect employees from 
    the hazards identified in that hazard assessment (Sec. 1910.132(d)). 
    Employees often do not have the expertise to select the correct type of 
    PPE, especially where the selection of appropriate PPE, such as fall 
    protection equipment and respirators, may be complicated.
        OSHA also believes that employers are in the best position to keep 
    the PPE in repair. Employers are required to maintain PPE in a sanitary 
    and reliable condition (Sec. 1910.132(a)). Because of this 
    responsibility, OSHA believes that employers can maintain better 
    control over the inventory of PPE by periodically inspecting the PPE 
    and, when necessary, repairing or replacing it due to damage or normal 
    wear and tear.
        OSHA gave these reasons for requiring employers to pay for PPE in 
    the final standard for logging operations (59 FR 51683, October 12, 
    1994). A number of commenters supported this reasoning.
        OSHA first used this reasoning in rulemakings conducted in the 
    1970's. For example, the Inorganic Arsenic standard explicitly requires 
    employers to pay for respirators, protective clothing, and protective 
    equipment, including gloves, shoes, and face shields or goggles. 29 CFR 
    1910.1018(j)(1). The preamble to the rule states that it is the 
    employer's obligation to provide protective equipment at no cost to the 
    employee and that doing so puts the employer in the best position to 
    provide the correct type of equipment and keep it in repair. 43 FR 
    19619 (May 5, 1978). OSHA applied the same reasoning in requiring 
    employers to pay for respirators when necessary to protect employees 
    from exposure to cotton dust. 43 FR 27387 (June 23, 1978). These 
    standards were subsequently upheld on appeal.
        In the recent respiratory protection standard, OSHA stated clearly 
    that the employer must pay for any respirator required to be worn by 
    employees. Although respirators are one of the more expensive types of 
    PPE, there was no opposition to this requirement. 63 FR 1152, 1195, 
    (January 8, 1998.)
        4. Requiring employees to pay for PPE may discourage their use of 
    PPE. Another reason for requiring the employer to pay for PPE is that 
    employees may be discouraged from using necessary PPE if they are 
    responsible for paying for it and must select and buy it.
        In the preamble to the Hearing Conservation amendment, OSHA 
    determined that employers should pay for hearing protectors based in 
    part on the reasoning that permitting an employer to charge employees 
    for hearing protectors could discourage the use of such devices and 
    thereby undermine the effectiveness of the employer's hearing 
    conservation program. 46 FR 4153 (January 16, 1981). The Fourth Circuit 
    Court of Appeals upheld the standard's allocation of hearing protector 
    costs to employers. Forging Indus. Ass'n v. Secretary of Labor, 773 
    F.2d 1436, 1451 (4th Cir. 1985)(en banc). The Court noted in that case 
    that the Supreme Court's finding in ATMI left no doubt that Congress 
    intended to impose compliance costs on employers and that ``it is only 
    logical that OSHA may require employers to absorb such costs.'' Forging 
    Indus. Ass'n, 773 F.2d at 1451.
        One of the reasons OSHA has given for medical removal protection 
    (MRP) benefits in its lead and cadmium standards is to encourage 
    employee participation in the medical surveillance programs mandated by 
    those standards. MRP protects the wages and other benefits of employees 
    removed from exposure to a toxic substance because of an exposure--
    related condition revealed by medical surveillance. In the preamble to 
    the cadmium standard, OSHA stated ``(MRP) . . . increase(s) employee 
    participation and confidence in the standard's medical surveillance 
    program.'' 57 FR 42101, 42367 (September 14, 1992). Analogous reasoning 
    supports the proposed requirement that employers pay for PPE. OSHA 
    believes that requiring employers to pay for PPE will increase the 
    likelihood that the employees will use the PPE and have confidence in 
    the employer's PPE program. The requirement for MRP and OSHA's 
    rationale were both specifically upheld in the lead decision, United 
    Steelworkers v. Marshall, 647 F.2d 1189, 1231 (D.C. Cir. 1980).
        As discussed in the Background and Legal Considerations sections, 
    OSHA has explicitly required employer payment for PPE in all health 
    standards issued since 1977. This issue has been less clearly and 
    directly addressed, however, in OSHA's safety standards. As discussed 
    in the Background section, OSHA attempted to clear up any ambiguity in 
    its 1994 memo to the field which stated that employer payment for PPE 
    was generally required (with an exception for steel-toe safety footwear 
    and prescription eyewear).
        5. Some State-Plan States already interpret their standards to 
    require employers to pay for PPE. Several States with OSHA-approved 
    State-plans already require employers to pay for PPE. These 
    requirements have provided protection to employees without posing 
    feasibility problems for employers. For example, the State of North 
    Carolina requires employers to provide, at no cost to the employee, all 
    personal protective equipment that the employee does not wear off the 
    job-site for use off the job. However, this State requirement applies 
    only to general industry workplaces.
        California standards are somewhat more extensive than those of 
    North Carolina. Whenever California standards use the word ``provide,'' 
    California State Courts have uniformly interpreted the standards to 
    mean that the employer pays for all PPE (including any replacement PPE) 
    in all industry sectors. The only exceptions are for PPE that reflect 
    ``special preferences'' by employees, such as prescription safety 
    eyewear or shoes of higher quality than required, or that reflect the 
    individual's style preference. Many other State-plan states, including 
    Alaska, Arizona, Indiana, Kentucky, New York, and Minnesota, either 
    require the employer to pay for all PPE or follow the practice outlined 
    in Federal OSHA's 1994 memo to the field.
    
    C. Scope of Proposed Rulemaking
    
        The proposal applies to the following industry sectors: general 
    industry, construction, and maritime (shipyard employment, marine 
    terminals, and longshoring). It does not apply to agriculture because 
    OSHA does not have general standards for PPE use in agriculture. 
    However, some employees in agriculture are covered by two general 
    industry standards, the logging standard (29 CFR 1910.266) and the 
    cadmium standard (29 CFR 1910.1027), which specifically require 
    employers to pay for required PPE (except in the case of the logging 
    boots specified in 1910.266(d)(l)(v), which are specifically exempted 
    from the requirements of the
    
    [[Page 15410]]
    
    proposed standard). The PPE requirements in these two standards will 
    continue to apply in agriculture.
        Even though the types of PPE may vary across and within industry 
    sectors, the same OSHA policy considerations on payment apply to all of 
    them. In addition, many OSHA safety and health standards already 
    contain provisions requiring the employer to pay for protective 
    equipment and PPE.
        Table II lists many OSHA provisions requiring the use of protective 
    equipment and PPE. The table identifies the provision, and the type of 
    PPE required by that provision.
    
                   Table II.--PPE Provisions in OSHA Standards
    ------------------------------------------------------------------------
        29 CFR OSHA references                    Type of PPE
    ------------------------------------------------------------------------
                 Part 1910--General Industry 6(a) Standards \1\
    ------------------------------------------------------------------------
    Sec.  1910.28(g)(9)..........  Safetybelt and lifeline.
    Sec.  1910.28(j)(4)..........  Safetybelt and lifeline.
    Sec.  1910.94(c)(6)(iii)(a)..  Air-supplied respirator.
    Sec.  1910.94(d)(9)(ii)......  Rubber and impervious boots.
    Sec.  1910.94(d)(9)(iii).....  Shoes.
    Sec.  1910.94(d)(9)(iv)......  Impervious gloves.
    Sec.  1910.94(d)(9)(v).......  Impervious aprons, coats.
    Sec.  1910.94(d)(9)(vi)......  Jackets, chemical goggles, face shields,
                                    respirators.
    Sec.  1910.132(a)............  Personal protective equipment, eye, face,
                                    head, extremities, protective clothing,
                                    and respiratory devices.
    Sec.  1910.132(b)............  Employee-owned PPE (any PPE owned by
                                    employees and used on the job-site).
    Sec.  1910.218(a)(1)(iv).....  Gloves, goggles, and aprons.
    Sec.  1910.242(b)............  PPE appropriate for hazards associated
                                    with the use of hand and portable
                                    powered tools and equipment.
    Sec.  1910.243(d)(1)(ii).....  Eye, face, head protection.
    Sec.  1910.252(b)(1)(i)......  Safetybelt, lifeline.
    Sec.  1910.252(b)(2)(i)(A)...  Welding helmet, hand shields.
    Sec.  1910.252(b)(2)(i)(B)...  Filter lens.
    Sec.  1910.252(c)(4)(2)(ii)..  Airline respirator.
    Sec.  1910.252(c)(4)(iii)....  SCBA.
    Sec.  1910.252(c)(7)(iii)....  Respirator.
    Sec.  1910.261(b)(2).........  Foot protection, shin guards, hardhats,
                                    noise attenuation.
    Sec.  1910.261(b)(5).........  Lifeline, safety harness.
    Sec.  1910.261(c)(2)(vii)....  Foot, head, eye protection.
    Sec.  1910.261(c)(6)(ii).....  Foot, head, eye protection.
    Sec.  1910.261(c)(7)(ii).....  Foot, head, eye protection.
    Sec.  1910.261(d)(1)(i)......  Respirators, goggles, protective masks.
    Sec.  1910.261(d)(1)(ii).....  Eye, face protection, clothing.
    Sec.  1910.261(g)(2)(i),(ii),  Gas mask, respirators, eye protection,
     &(iii).                        safety belts, lifeline.
    Sec.  1910.261(g)(4).........  Respirators, lifebelts, lifelines.
    Sec.  1910.261(g)(5).........  Rubber boots, gloves, apron, eye
                                    protection.
    Sec.  1910.261(g)(6).........  Respirator.
    Sec.  1910.261(g)(10)........  Gas mask.
    Sec.  1910.261(g)(15)(ii),(ii  Respirator, lifeline, safetybelt.
     i)&(v).
    Sec.  1910.261(g)(18)(i)&(ii)  Showers, bubblers.
    Sec.  1910.261(h)(2)(iii)&(iv  Gas mask, SCBA.
     ).
    Sec.  1910.261(i)(4).........  Eye, head, foot and shin protection.
    Sec.  1910.261(k)(3).........  Face shields, aprons, rubber gloves.
    Sec.  1910.265(c)(21)(i).....  Safetybelt, lifeline.
    Sec.  1910.265(d)(2)(ii)(h)..  Life ring and line.
    Sec.  1910.265(d)(2)(iii)(g).  Buoyant devices.
    Sec.  1910.335(a)(1)(i)......  Electrical protective equipment.
    Sec.  1910.335(a)(2)(i)......  Protective shields, barriers, insulation.
    Sec.  1910.66(j).............  Personal fall arrest system.
    Sec.  1910.67(c)(2)(v).......  Bodybelt.
    Sec.  1910.120(g)(3)(iii)....  Positive pressure SCBA, airline.
    Sec.  1910.120(g)(3)(iv).....  Totally-encapsulated chemical suit.
    Sec.  1910.120(c)(5(ii)......  5-minute ESCBA.
    Sec.  1910.120(c)(5)(iii)....  Level B PPE.
    Sec.  1910.120(q)(3)(iii)....  Firefighting PPE.
    Sec.  1910.120(q)(3)(iv).....  Positive pressure SCBA.
    Sec.  1910.133(a)(1).........  Eye and face protection.
    Sec.  1910.134...............  Respirators.
    Sec.  1910.135...............  Protective helmet.
    Sec.  1910.136...............  Foot protection.
    Sec.  1910.137...............  Electrical protective equipment.
    Sec.  1910.138...............  Hand protection.
    Sec.  1910.146(k)(1)(i)......  PPE, rescue equipment.
    Sec.  1910.156(e)(1)(i)......  Protective clothing.
    Sec.  1910.156(e)(1)(ii).....  Firefighting PPE.
    Sec.  1910.156(f)(1)(i)......  Respirators.
    Sec.  1910.266(d)(1)(iii)....  Hand protection.
    Sec.  1910.266(d)(1)(iv).....  Leg protection.
    
    [[Page 15411]]
    
     
    Sec.  1910.266(d)(1)(v)......  Logging boots.
    Sec.  1910.266(d)(1)(vi).....  Head protection.
    Sec.  1910.266(d)(1)(vii)....  Eye and face protection.
    Sec.  1910.268(g)(1).........  Safetybelt and strap.
    Sec.  1910.268(1)(i).........  Head protection and eye protection.
    Sec.  1910.272(g)(1)(iii)(B).  Respirator.
    Sec.  1910.272(g)(2).........  Body harness and lifeline.
    Sec.  1910.94(a)(5)(i).......  Respirators.
    Sec.  1910.94(a)(5(iv).......  Respirators.
    Sec.  1910.94(a)(5)(v)(B)....  Eye and face protection.
    Sec.  1910.95(b)(1)..........  PPE (Hearing protection).
    Sec.  1910.95(i)(1)..........  Hearing protection.
    Sec.  1910.95(i)(3)..........  Hearing protection.
    ------------------------------------------------------------------------
               Part 1910 General Industry Health 6(b) Standards\1\
    ------------------------------------------------------------------------
    Sec.  1910.134...............  Respirators.
    Sec.  1910.1002..............  Protective equipment, Respirators.
    Sec.  1910.1001(g)(2)(i).....  Respirators.
    Sec.  191.1001(h)(1).........  Coveralls, gloves, head coverings, foot
                                    coverings, face shields, goggles.
    Sec.  1910.1001(j)(7)(iii)(E)  PPE (for protection against asbestos).
    Sec.  1910.1003(b)...........  Protective clothing, smocks, coveralls,
                                    gloves.
    Sec.  1910.1003(c)(4)(iii)...  Long-sleeved shirts, pants, boots.
    Sec.  1910.1003(c)(4)(iv)....  Respirators.
    Sec.  1910.1003(c)(5)(i).....  Gloves, boots, respirators.
    Sec.  1910.1004..............  Respirators, protective clothing.
    Sec.  1910.1006..............  Respirators, protective clothing.
    Sec.  1910.1007..............  Respirators, protective clothing.
    Sec.  1910.1008..............  Respirators, protective equipment.
    Sec.  1910.1009..............  Respirators, protective equipment.
    Sec.  1910.1010..............  Respirators, protective equipment.
    Sec.  1910.1011..............  Respirators, protective equipment.
    Sec.  1910.1012..............  Respirators, protective equipment.
    Sec.  1910.1013..............  Respirators, protective equipment.
    Sec.  1910.1014..............  Respirators, protective equipment.
    Sec.  1910.1015..............  Respirators, protective equipment.
    Sec.  1910.1016..............  Respirators, protective equipment.
    Sec.  1910.1017..............  Respirators, protective equipment.
    Sec.  1910.1018..............  Respirators, protective work clothing,
                                    eye and face protection.
    Sec.  1910.1025..............  Respirators, protective work clothing.
    Sec.  1910.1027..............  Respirators, protective work clothing,
                                    eye and face, head protection.
    Sec.  1910.1028..............  Respirators, protective clothing, eye and
                                    face protection.
    Sec.  1910.1029..............  Flame resistant pants, jacket, gloves,
                                    eye and face protection, insulated
                                    footwear, protective helmets.
    Sec.  1910.1030..............  Gloves, gown, lab coat , face shield,
                                    masks, eye protection, mouthpieces,
                                    pocket mask.
    Sec.  1910.1043..............  Respirators.
    Sec.  1910.1044..............  Respirators, protective clothing, eye and
                                    face protection.
    Sec.  1910.1045..............  Respirators, protective clothing and
                                    equipment.
    Sec.  1910.1047..............  Respirators, protective clothing and
                                    equipment.
    Sec.  1910.1048..............  Respirators, protective clothing and
                                    equipment.
    Sec.  1910.1050..............  Respirators, aprons, coveralls, gloves,
                                    head coverings, foot coverings, face
                                    shields, chemical goggles, other PPE.
    Sec.  1910.1051..............  Respirators, protective clothing, eye and
                                    face protection.
    Sec.  1910.1052..............  Respirators, protective clothing, eye and
                                    face protection.
    Sec.  1910.1200(h)(3)(iii)...  PPE (for protection against hazardous
                                    chemicals).
    Sec.  1910.1450(e)(3)(ii)....  PPE (for protection against hazardous
                                    chemicals in laboratories).
    Sec.  1910.1450(f)(4)(i)(C)..  PPE (for protection against hazardous
                                    chemicals in laboratories).
    Sec.  1910.1450(i)...........  Respirators.
                Part 1915--Shipyard Employment 6(a) Standards \1\
    ------------------------------------------------------------------------
    Sec.  1915.12(c)(4)(ii)......  Respirators, other PPE.
    Sec.  1915.12(e)(1)(i).......  Respirators, other PPE.
    Sec.  1915.13(b)(6)(iv)......  Respirators, other PPE.
    Sec.  1915.32(a)(3)..........  Respirators, protective clothing.
    Sec.  1915.33(a).............  Eye and face protection.
    Sec.  1915.33(d).............  Face protection.
    Sec.  1915.33(e).............  Face protection.
    Sec.  1915.34(a)(1)..........  Goggles, face shields.
    Sec.  1915.34(a)(4)..........  Respirators.
    Sec.  1915.34(b)(1)..........  Respirators.
    Sec.  1915.34(c)(3)(i).......  Respirators.
    Sec.  1915.34(c)(3)(ii)......  Respirators.
    
    [[Page 15412]]
    
     
    Sec.  1915.34(c)(iii)........  Respirators.
    Sec.  1915.34(c)(iv).........  Protective clothing, gloves.
    Sec.  1915.34(c)(3)(v).......  Safety belt.
    Sec.  1915.35(a)(1)(i).......  Respirators.
    Sec.  1915.35(a)(1)(ii)......  Respirators.
    Sec.  1915.35(a)(1)(iii).....  Respirators.
    Sec.  1915.35(a)(2)..........  Respirators.
    Sec.  1915.35(b)(9)..........  Eye, face, head, hand protection,
                                    protective clothing.
    Sec.  1915.35(b)(13).........  Respirators and protective clothing.
    Sec.  1915.35(b)(14).........  Respirators and protective clothing.
    Sec.  1915.51(c)(3)..........  Respirators.
    Sec.  1915.51(d)(2)..........  Respirators.
    Sec.  1915.51(d)(3)..........  Respirators.
    Sec.  1915.51(e)(1)(ii)......  Eye protection, filter lenses.
    Sec.  1915.51(e)(1)(iii).....  Protective clothing.
    Sec.  1915.51(f)(2)..........  Eye protection.
    Sec.  1915.53(d)(1)..........  Respirators.
    Sec.  1915.53(d)(2)..........  Respirators.
                Part 1915--Shipyard employment 6(b) Standards \1\
    ------------------------------------------------------------------------
    Sec.  1915.12(a)(3)(ii)......  Respirators, other PPE.
    Sec.  1915.152(a)............  All PPE.
    Sec.  1915.153(a)............  Eye and face protection.
    Sec.  1915.154...............  Respirators.
    Sec.  1915.155...............  Head protection.
    Sec.  1915.156...............  Foot protection.
    Sec.  1915.157...............  Hand and body protection.
    Sec.  1915.158...............  Personal flotation devices, life rings.
    Sec.  1915.159...............  Personal fall arrest systems.
    Sec.  1915.160...............  Positioning device systems.
    ------------------------------------------------------------------------
       Part 1917--Safety and Health Regulations for Marine Terminals 6(b)
                                  Standards \2\
    ------------------------------------------------------------------------
    Sec.  1917.22(c).............  Protective clothing.
    Sec.  1917.23(d)(1)..........  Respirators, emergency protective
                                    equipment.
    Sec.  1917.25(e)(1)..........  Respirators, emergency protective
                                    equipment.
    Sec.  1917.26(f).............  Personal flotation devices, safety belts.
    Sec.  1917.49(i)(3)..........  Lifeline and safety harness.
    Sec.  1917.73(a)(3)..........  Respirators.
    Sec.  1917.73(c).............  Respirators, lifeline, safety harness.
    Sec.  1917.91(a)(1)..........  Eye and face protection.
    Sec.  1917.92................  Respirators.
    Sec.  1917.93(a).............  Head protection.
    Sec.  1917.94(a).............  Foot protection.
    Sec.  1917.95(a).............  Protective clothing.
    Sec.  1917.95(b).............  Personal flotation devices.
    Sec.  1917.118(e)(1).........  Ladder safety device.
    Sec.  1917.126(b)............  Personal flotation devices.
    Sec.  1917.152(e)(8)(ii).....  Eye protection, filter lenses.
    Sec.  1917.152(e)(11)........  Rubber pads, rubber boots.
    Sec.  1917.152(f)............  Respirators.
    Sec.  1917.152(f)(4).........  Eye, head, hand protection.
    Sec.  1917.152(g)(3).........  Respirators.
    Sec.  1917.152(h)............  Respirators, eye, face, head protection,
                                    filter lenses.
    Sec.  1917. 154..............  PPE (For protection against hazards
                                    resulting from the use of compressed
                                    air).
    ------------------------------------------------------------------------
                    Part 1918--Longshoring 6(b) Standards \1\
    ------------------------------------------------------------------------
    Sec.  1918.101...............  Eye protection.
    Sec.  1918.102...............  Respirators.
    Sec.  1918.103...............  Protective clothing.
    Sec.  1918.104...............  Foot protection.
    Sec.  1918.105...............  Head protection.
    Sec.  1918.106...............  Personal flotation devices
    ------------------------------------------------------------------------
                    Part 1926 Construction 6(a) Standards \1\
    ------------------------------------------------------------------------
    Sec.  1926.300(c)............  PPE (for hazards from the use of hand and
                                    power tools).
    Sec.  1926.304(e)............  PPE (for hazards from the use of
                                    woodworking tools).
    Sec.  1926.551(e)............  Eye protection, hardhats.
    ------------------------------------------------------------------------
    
    [[Page 15413]]
    
     
                   Part 1926--Construction 6(b) Standards \1\
    ------------------------------------------------------------------------
    Sec.  1926.52(b).............  Hearing protection.
    Sec.  1926.95(a).............  General requirements for all PPE used in
                                    construction.
    Sec.  1926.95(b).............  Employee owned PPE.
    Sec.  1926.95(c).............  Design of PPE.
    Sec.  1926.701(f)............  Face and head protection.
    Sec.  1926.800(d)(7).........  PPE used in underground construction.
    Sec.  1926 Subpart L.........  Personal fall arrest systems.
    Sec.  1926 Subpart M.........  Personal fall arrest systems.
    ------------------------------------------------------------------------
    \1\ A 6(a) standard is any standard that OSHA adopted from an existing
      Federal standard or a national consensus standard under Sec. 6(a) of
      the Act, i.e., without notice-and-comment rulemaking. A 6(b) standard
      is a standard that OSHA promulgated using the rulemaking process with
      public participation.
    
        For all industry sectors, employers are in the best position to 
    choose the proper type and quality of PPE, and to maintain the PPE 
    selected. The same statutory considerations apply to all industry 
    sectors, as discussed above in this preamble.
        However, additional considerations apply to workplaces in 
    construction, longshoring, and marine terminals: first, there is 
    considerable turnover in these industries, and second, many of the 
    affected businesses employ only a small number of employees. Based on 
    OSHA's experience, safety-toe footwear is the type of PPE most often 
    used in these industries and the type of PPE that employees are most 
    often required to pay for at present. This equipment would be excluded 
    from the ``employer pays'' requirement, provided that the three 
    proposed conditions are met. Therefore, OSHA does not believe that its 
    proposal will cause economic difficulties for employers in these 
    sectors. See also section VI., Preliminary Economic Analysis.
    
    D. Current OSHA Rrequirements Concerning Payment for PPE
    
        Earlier OSHA standards promulgated under section 6(a) of the OSH 
    Act (i.e., those standards adopted without notice-and-comment 
    rulemaking and public participation) that required the use of PPE did 
    not explicitly address the issue of who is required to pay for PPE. In 
    1978, however, several substance-specific health standards promulgated 
    under section 6(b) of the OSH Act (i.e., promulgated using the full 
    rulemaking process with public participation and comment) required 
    employers to pay for PPE. Since that time, all OSHA health standards 
    have explicitly required employers to pay for required PPE.
        However, the safety standards promulgated under section 6(b) of the 
    OSH Act have not been consistent with respect to the employer's 
    responsibility to pay for PPE. Several of these standards require the 
    employer to ``provide'' PPE, but do not explicitly state that the 
    employer must pay for it. Other standards specifically require the 
    employer to pay for all PPE. One standard, Logging Operations 
    (Sec. 1910.266), requires the employer to pay for all PPE, with the 
    exception of logging boots. The following are examples of OSHA's 
    current PPE requirements.
        Telecommunication standard. Paragraph (e) of Sec. 1910.268 requires 
    the employer to provide personal protective equipment, protective 
    devices and special tools. However, this provision does not 
    specifically state that the employer must pay for the PPE, even though 
    it is common practice in the telecommunications industry for the 
    employer to pay for all PPE except for safety-toe protective shoes (see 
    the Regulatory Impact Analysis for that standard).
        Electric Power Generation. Paragraph (g)(1) of Sec. 1910.269 
    requires PPE to meet the requirements of subpart I of part 1910, but 
    does not specify that the employer must pay for the PPE.
        Maritime standards. Paragraph (a) of Sec. 1915.152 (Shipyard 
    standards) requires the employer to provide and ensure the use of PPE, 
    but does not clearly state that the employer is required to pay for it.
        Identical PPE standards apply to marine terminals (part 1917) and 
    longshoring (part 1918). They state, in part: ``The employer shall 
    ensure that each affected employee wears* * *[PPE].'' Again, the 
    regulatory text does not state that the employer is required to pay for 
    the PPE. However, the preamble to the marine terminals and longshoring 
    standards does give guidance with respect to the payment for PPE issue 
    (62 FR 40186-87):
    
    Although the equipment used in marine cargo handling operations 
    often differs from that mentioned in the October 18 memorandum [OSHA 
    Policy Memorandum, October 18, 1994] the same policy considerations 
    apply in the Longshore and Marine Terminals standard PPE context. 
    Therefore, OSHA will apply the above-stated policy when determining 
    whether the employer is required to pay for a particular kind of 
    PPE.
    
    Therefore, OSHA's enforcement policy for marine terminals and 
    longshoring requires employers to pay for all PPE except for safety-toe 
    protective shoes and prescription safety glasses.
        Subpart I of part 1910. On April 6, 1994, OSHA revised its general 
    industry standards for PPE (59 FR 16362) and added new provisions for 
    hazard assessment and training. The Agency had not proposed a 
    requirement concerning the employer's responsibility to pay for PPE, 
    and the subject was not an issue during the rulemaking.
        Permit-required confined spaces (Sec. 1910.146). This standard 
    specifically requires the employer to pay for PPE. It requires the 
    employer to provide the equipment (including PPE) necessary for safe 
    entry into, and rescue from, permit spaces at no cost to employees, to 
    maintain the equipment properly, and to ensure its proper use by 
    employees.
        Logging operations. During the logging rulemaking, OSHA proposed 
    that the employer provide PPE and assure its use. OSHA's intent was 
    that the employer provide all PPE at no cost to employees. However, 
    some commenters asserted that employers should not have to pay for all 
    types of PPE used in logging operations.
        After careful analysis of the rulemaking record, the Agency 
    concluded that the employer should be required to pay for all PPE 
    except for logging boots. OSHA noted that logging boots are customarily 
    worn outside the workplace; are individually-fitted and therefore not 
    usable by another
    
    [[Page 15414]]
    
    employee; and are used in an industry that has a high turnover rate.
    
    E. Advisory Committee on Construction Safety and Health
    
        The Advisory Committee on Construction Safety and Health (ACCSH) 
    assists OSHA by providing comments and recommendations on proposed 
    construction standards. Accordingly, the Agency provided ACCSH with the 
    following draft revision of Sec. 1926.95:
    
        (d) Payment for Protective Equipment. All protective equipment, 
    including personal protective equipment, required in this part, 
    shall be provided by the employer at no cost to employees except for 
    safety-toe protective footwear and prescription safety eyewear.
    
    ACCSH considered the proposed language at its meeting on April 8, 1998.
        ACCSH members expressed several concerns about the proposed 
    language. Some members expressed the view that many employers were 
    already paying for safety-toe shoes through collective bargaining 
    agreements and that the new text might discourage them from continuing 
    to do so (Tr. 53, 61).
        Members also noted that prescription glasses are sometimes 
    incorporated into respirator facepieces and would therefore be 
    impractical for workers to use at home. They therefore asked why 
    employers should not pay for that prescription eyewear (Tr. 47).
        Other members of the committee mentioned the problem of employees 
    who did not always bring their safety equipment to work. They noted 
    that it would be expensive for an employer to have to replace that 
    equipment frequently (Tr. 51-52).
        Two resolutions were introduced. The first stated:
    
    All protective equipment, including personal protective equipment, 
    required in this part, shall be provided by the employer at no cost 
    to the employees.
    
    That resolution failed by a 6 to 7 vote.
        The second resolution introduced read as follows:
    
    The language currently in 1926.95 regarding personal protective 
    equipment, is effective and is sufficient to protect the worker and 
    provide the personal protective equipment. (We) recommend leav(ing) 
    the language as is currently stated in 1926.95 (Tr. 62).
    
    That resolution passed by a 6 to 2 vote.
        Based on the recommendations and discussion of ACCSH, the Agency 
    revised the draft regulatory text to reflect many of the Committee's 
    concerns. OSHA is proposing the revised proposed regulatory text for 
    general industry and maritime as well as the construction industry.
        The Agency believes that the Union Tank decision has undercut 
    OSHA's ability to enforce the standard as outlined in the 1994 memo. As 
    discussed below, the proposed rule incorporates much of the 1994 memo 
    into the text of the Agency's various protective equipment standards. 
    OSHA believes that this action will carry out the recommendations of 
    ACCSH effectively.
        The proposed regulatory text now makes clear that the employer is 
    not required to pay for safety-toe protective footwear and prescription 
    safety eyewear unless: (1) The employer does not permit it to be worn 
    off-site; (2) the footwear or eyewear is rendered unsafe for use off-
    site; or (3) the footwear or eyewear is designed for special use on the 
    job. For example, contaminated safety-toe footwear would not be 
    permitted to be worn off the job-site because it would be unsafe to do 
    so, and prescription eyewear mounted inside a full-facepiece respirator 
    would not be permitted for use off the job-site because it is designed 
    for special use on-site. Consequently, the employer would be required 
    to pay for the PPE in these two examples.
        OSHA intends to require employers to pay for the initial issue of 
    PPE and for replacement PPE that must be replaced due to normal wear 
    and tear or occasional loss. Only in the rare case involving an 
    employee who regularly fails to bring employer-supplied PPE to the job-
    site, or who regularly loses the equipment, would the employer be 
    permitted to require the employee to pay for replacement PPE.
    
    F. Explanation of Proposed Requirement
    
        OSHA is proposing to add the following language to its general 
    industry standards as Sec. 1910.132(h):
    
    All protective equipment, including personal protective equipment 
    (PPE), required in this part, shall be provided by the employer at 
    no cost to employees.
        Exception: The employer is not required to pay for the logging 
    boots required by 29 CFR Sec. 1910.266(d)(1)(v). The employer is 
    also not required to pay for safety-toe protective footwear, or for 
    prescription safety eyewear, provided that all three of the 
    following conditions are met: (1) the employer permits such footwear 
    or eyewear to be worn off the job-site; (2) the footwear or eyewear 
    is not used at work in a manner that renders it unsafe for use off 
    the job-site (for example, contaminated safety-toe footwear would 
    not be permitted to be worn off a job-site); and (3) such footwear 
    or eyewear is not designed for special use on the job.
    
    OSHA is proposing to add the same language (except for the first 
    sentence of the exception, which applies only to the general industry 
    workplaces covered by the logging standard) as shipyard 
    Sec. 1915.152(f) as marine terminal Sec. 1917.96, as longshoring 
    Sec. 1918.106, and as construction Sec. 1926.95(d).
        The purpose of this language is to make clear that employers must 
    provide and pay for all necessary PPE wherever such PPE is required by 
    an OSHA standard, with the exceptions mentioned. The reasons for this 
    proposal have been discussed above and are also found in the Legal 
    Considerations section of this preamble, above.
        The proposal is intended to cover every situation where an OSHA 
    standard requires the use of PPE. OSHA preliminarily concludes that all 
    the reasons why employers should provide and pay for PPE apply 
    generally to all types of PPE. In other words, the reasons why an 
    employer is in the best position to purchase the correct type and 
    quality of wire mesh gloves to prevent finger lacerations also apply to 
    the selection and purchase of the correct type and quality of fall 
    protection harnesses and lanyards, respirators, and metatarsal foot 
    protection. As noted, the proposal does contain exceptions and 
    conditions to these exceptions. OSHA requests comment on whether other 
    types of PPE should be excepted from the employer-payment principle and 
    if so, why.
        The proposed payment requirement in Sec. 1910.132(h) applies to 
    ``all protective equipment required in this part.'' For example, part 
    1910 contains many different requirements for the use of PPE throughout 
    general industry (see Table 2, above). Although the proposed regulatory 
    language would be inserted only in Sec. 1910.132 (which is in subpart I 
    of part 1910), OSHA intends that employers pay for all PPE required 
    throughout part 1910.
        OSHA does not believe it necessary to specify in the proposed 
    regulatory text that the employer ensure that employees use the 
    required PPE and maintain it appropriately, because these concepts are 
    already clearly stated in most of OSHA's PPE requirements. OSHA 
    requests comments on the adequacy of this approach, and whether 
    employee use and maintenance of PPE should be specifically required.
        As discussed previously, some PPE requirements already include 
    specific language requiring the employer to provide and pay for PPE 
    (e.g., the language used in most health standards), while others use 
    more ambiguous language. OSHA intends the proposed new language to 
    cover all of the Agency's PPE requirements. OSHA believes that this 
    approach will make the obligations of employers clear with regard to 
    the provision and payment for PPE. The proposed language does not
    
    [[Page 15415]]
    
    affect or limit the ``provide-and-pay'' language in those regulatory 
    provisions that already clearly state this requirement, such as 29 CFR 
    1910.266(d)(1)(v), 29 CFR 1910.1029(h)(1), 29 CFR 1910.146(d), and 29 
    CFR 1910.134(c).
        The proposed provide-and-pay language also allows a reasonable 
    degree of compliance flexibility. For example, the proposed language 
    would permit an employer to send an employee to purchase appropriate 
    PPE at a supply store if the employer paid for the employee's time and 
    paid for the PPE.
        The proposed requirement would also make the employer responsible 
    to provide, and pay for, replacement PPE when the original PPE wears 
    out from normal wear and tear or in the event of occasional loss or 
    accidental damage by the employee. However, if an employee regularly 
    and with unreasonable frequency loses or damages the PPE, the employer 
    may request that the employee pay for the replacement PPE. This issue 
    was discussed at the ACCSH meeting, as noted earlier. It is also 
    important to note that current OSHA PPE standards (e.g., 
    Sec. 1910.132(f)(1)(v)) already require the employer to train employees 
    in the proper care, maintenance, and useful life of PPE.
    
    Exceptions
    
        For the reasons discussed above, OSHA has preliminarily concluded 
    that the Agency needs to codify the general principle that employers 
    must both provide and pay for PPE. However, the Agency is also 
    proposing exceptions to that rule. OSHA is not proposing to require 
    employers to provide, or pay for, safety-toe protective footwear or 
    prescription safety eyewear providing that the following three 
    conditions are met: (1) the employer permits the footwear or eyewear to 
    be worn off-site; (2) the footwear or eyewear is used on the job in a 
    manner that does not make it unsafe for off-site use; and (3) the 
    footwear or eyewear is not designed for special use on the job. In 
    addition, as the current rule provides, general industry employers are 
    not required to pay for the logging boots required by 29 CFR 
    1910.266(d)(1)(v).
        Safety-toe protective footwear (safety shoes). This discussion of 
    safety shoes pertains only to safety-toe protective footwear. It does 
    not pertain to other types of foot protection, such as metatarsal or 
    cut-resistant protective boots. (Logging boots are discussed below.)
        OSHA considers safety shoes to be personal in nature. That is, 
    safety shoes are not used by different employees. Instead, they are 
    used by, and sized to fit, only one individual employee. Also, one 
    employee's safety shoes are not generally used by other employees 
    because of size and hygienic concerns. In addition, employees often 
    wear safety shoes away from the job-site.
        Safety shoes are widely available and are not difficult for the 
    employee to select and purchase. Evidence presented in the Preliminary 
    Economic Analysis also shows that it is customary in some workplaces 
    for employees to pay for their safety-toe footwear. In addition, the 
    OSHA policy memorandum of 1994 generally excepted safety-toe safety 
    shoes from the employer payment requirement. For these reasons, OSHA is 
    not proposing to include safety-toe safety shoes in the employer 
    payment requirement if all three of the conditions are met.
        Thus, the proposed exception would not apply to metatarsal 
    protection (metatarsal guards or protective footwear that incorporates 
    metatarsal protection) or special cut-resistant footwear because these 
    kinds of footwear are not generally used off the worksite, and 
    employers often re-issue metatarsal guards and cut-resistant footwear 
    to subsequent employees. Also, the proposed exception would not apply 
    to any safety-toe safety shoe that cannot safely be worn off the 
    worksite. For example, the exception does not include safety shoes that 
    have been worn in a regulated area where they may have been 
    contaminated with a toxic substance. Employers must continue to provide 
    and pay for these safety shoes because they are not safe for use off-
    site. However, the exception does not prohibit employers from paying 
    for safety-toe safety footwear of any type, if they choose to do so.
        Prescription safety eyewear. OSHA also considers prescription 
    safety eyewear to be personal in nature. Prescription safety eyewear 
    is, of course, designed for the use of a single individual. Other types 
    of protective eyewear, such as goggles, generally remain at the job-
    site and can be cleaned and reissued for use by other employees.
        Prescription safety eyewear is usually used both on and off the 
    job-site. Additionally, regular prescription glasses can be worn 
    underneath goggles and other protective eyewear that has been designed 
    to accommodate them. Therefore, in this situation OSHA believes that 
    employers should be required to pay only for the protective goggles. 
    Employees can then decide either to purchase their own prescription 
    safety glasses or to wear their own prescription glasses underneath the 
    protective eyewear provided by the employer. Additionally, the employer 
    may agree to pay all or part of the cost of prescription safety 
    eyewear. However, the employer must pay for any prescription eyewear 
    that is mounted inside the full-facepiece of a respirator, because such 
    eyewear would fall under the ``special use'' condition of the proposed 
    rule (this is also clearly required by the respirator standard). OSHA's 
    position on this issue is discussed below in the Issues Section of this 
    preamble.
        The Agency realizes that there may be different opinions with 
    respect to this proposal. Some may argue that requiring employers to 
    pay for all PPE (including safety shoes and prescription safety 
    eyewear) may lead to more employees wearing PPE and, consequently, may 
    enhance employee safety. The Issues Section, below, requests comment on 
    this issue.
        OSHA emphasizes that payment for safety-toe footwear and 
    prescription safety eyewear can be negotiated between management and 
    labor. Also, this proposed rulemaking is not intended to affect any 
    collective bargaining agreements, or any other responsibility to pay 
    for safety-toe footwear and prescription safety eyewear in particular 
    workplaces.
        The Agency also emphasizes that this proposed rulemaking does not 
    change the employer's obligation under the Act to ensure that all PPE, 
    including employee-owned PPE, is worn when necessary, is adequate to 
    protect employees from the hazard, and is properly maintained. If the 
    employee chooses to furnish his or her personally-owned PPE, this rule 
    does not require the employer to reimburse the employee for the cost of 
    that equipment.
        This proposed revision specifically restates the exception to the 
    ``employer pays'' principle contained in the OSHA standard for logging 
    operations (Sec. 1910.266(d)(1)(v)), which specifies that the employer 
    is not required to pay for a certain type of foot protection (foot 
    protection constructed of cut-resistant material to protect employees 
    who operate chainsaws, etc.). OSHA considered that issue at length in 
    the logging rulemaking and concluded that the evidence supported 
    excluding that type of footwear from the general obligation that 
    logging employers pay for logging PPE. See the discussion at 59 FR 
    51683-4 (Oct. 12, 1994).
    
    V. Issues Pertaining to the Proposed Rule
    
        OSHA requests comments, views, and data on all issues relevant to 
    the proposed rule, including the following:
    
    [[Page 15416]]
    
        1. OSHA also considered proposing the following alternative 
    regulatory text:
    
    The employer shall provide, at no cost to the employee, all 
    protective equipment and personal protective equipment except for 
    protective equipment which the employer demonstrates is personal in 
    nature and customarily used off the job.
    
        This provision is stated in general language and would have the 
    advantage of providing some flexibility for specific workplace 
    situations involving PPE. However, a major disadvantage of this 
    approach is that it uses the terms ``personal in nature'' and 
    ``customarily used off the job,'' which OSHA would need to define and 
    interpret. OSHA's proposed exception, which is more specific than the 
    text of the alternative discussed above, provides greater certainty to 
    employers and workers.
        OSHA requests comments on the merits of both approaches, including 
    views on how OSHA should interpret the regulatory text.
        2. Are there other types of PPE, beside safety-toe safety footwear 
    and prescription eyewear, that should be excepted from the proposed 
    payment requirement? Why or why not? Please submit any available 
    supporting documentation. Alternatively, should OSHA require employers 
    to pay for all PPE, including safety-toe footwear and prescription 
    safety eyewear? Why or why not?
        3. OSHA realizes that there is frequent turnover in the 
    construction industry, where employees frequently move from job-site to 
    job-site. This is an important factor because an employer with a high-
    turnover workplace would have to buy PPE for more employees if the PPE 
    was of the type that could only be used by one employee. OSHA requests 
    comment on whether its proposed exceptions for safety-toe footwear and 
    prescription safety eyewear are appropriate in the construction 
    industry. Are there any other approaches to handle the turnover 
    situation that would be protective of construction workers? Are there 
    any other issues unique to the construction industry that should be 
    considered in this rulemaking?
        4. The longshoring and marine terminal industries have a unique 
    employer-employee relationship in many ports. At some ports, employees 
    are hired for a job through a labor pool, and the same employee may 
    work for 5 different employers in the same week. How do these factors 
    affect the issue of who is required to pay for PPE? Does the employer 
    customarily pay for PPE in the maritime industry? Are there any other 
    issues unique to the maritime industry that OSHA should consider in 
    this rulemaking?
        5. OSHA requests comments, information, and data on whether 
    employee-owned PPE is less protective than employer-provided PPE, and 
    under what circumstances.
        6. The proposal covers protective equipment and personal protective 
    equipment used in welding, including protective gloves. Does welding 
    PPE create any unique problems on the PPE payment issue? Does the 
    employee usually pay for welding PPE?
        7. If an employee wants to use more costly PPE because of 
    individual preference, should that employee be responsible for any 
    difference in cost? Is there evidence that such ``individualized'' PPE 
    has caused safety problems in the past?
        8. Full-facepiece respirators present a unique problem for 
    employees who need prescription glasses. The temples of the 
    prescription glasses break the face-to-face piece seal and greatly 
    reduce the protection afforded by the respirator. Special glasses and 
    mounts inside the facepiece of the respirator are sometimes used to 
    provide an adequate seal. Because of this special situation, OSHA 
    believes that it is appropriate for the employer to provide and pay for 
    the special-use prescription glasses used inside the respirator 
    facepiece. Is it common industry practice for employers to pay for 
    these special glasses? What is the typical cost for providing ``insert-
    type'' prescription glasses inside full-facepiece respirators?
        9. OSHA's Preliminary Economic Analysis has found that this 
    proposal will not impose significant impacts on firms in any industry 
    segment or on affected small businesses. OSHA requests comments on the 
    analysis and on any industry or subindustry that may have particular 
    economic problems as a result of the proposed rule.
        10. Should the standard require the employer to pay for inserts or 
    other articles that are uniquely personalized components of personal 
    protective equipment, such as head coverings used under welding helmets 
    and custom prescription lens inserts worn under a welding helmet or a 
    diving helmet?
        11. OSHA intends to require employers to pay for the initial issue 
    of PPE. Should employers also be required to pay for PPE that must be 
    replaced due to normal wear and tear or occasional loss?
        12. OSHA requests comments on the conclusions about the costs and 
    benefits contained in the Preliminary Economic Analysis section.
    
    VI. Preliminary Economic Analysis
    
        It has been determined that this is a significant regulatory action 
    under E.O. 12866, and a major rule under the Congressional Review 
    provisions of the Small Business Regulatory Enforcement Fairness Act.
    
    Introduction
    
        OSHA has prepared this Preliminary Economic Analysis to examine the 
    feasibility of the proposed rule on Employer Payment for Personal 
    Protective Equipment and to meet the requirements of Executive Order 
    12866 and the Regulatory Flexibility Act (as amended). The proposed 
    rule would require employers to pay for protective equipment, including 
    personal protective equipment (PPE), when OSHA standards mandate that 
    employers provide such equipment to their employees. The only PPE 
    employers would not be required to pay for in certain circumstances are 
    safety-toe footwear and prescription safety eyewear. OSHA is proposing 
    to except PPE of these types providing that these types of PPE meet 
    three conditions: (1) The employer permits them to be worn off-site; 
    (2) they are not used on-site in a manner that renders them unsafe for 
    use off-site; and (3) they are not designed for special on-site use. 
    Logging boots are also specifically excepted from employer payment by 
    29 CFR 1910.266(d)(1)(v).
        OSHA's requirements for PPE (again, OSHA is using the abbreviation 
    ``PPE'' to cover all protective equipment, (including personal 
    protective equipment) appear in many health, safety, maritime, and 
    construction standards. In some cases, the standard is explicit in 
    stating that employers are to provide the PPE at no cost to the 
    employee (see, for example, OSHA's substance-specific health standards, 
    which are codified in Subpart Z of 29 CFR 1910.1000). In other cases, 
    however, such as in paragraph (a) of 29 CFR 1910.132 and paragraph (a) 
    of 29 CFR 1926.28, who is required to pay for the PPE is not expressly 
    specified. (For a complete list of OSHA's PPE requirements, see the 
    Summary and Explanation for the proposed standard, above.)
        The proposed rule would apply to general industry, construction, 
    and maritime workplaces covered by the PPE provisions in existing OSHA 
    standards.
        The rule would clarify OSHA's intent that, with the exceptions 
    noted, employers provide required PPE to their employees at no cost to 
    those employees. The kinds of PPE addressed by OSHA's PPE standards 
    include, for example, hard hats, safety shoes, gloves, safety glasses, 
    goggles, faceshields, welding helmets and goggles, fall
    
    [[Page 15417]]
    
    protection equipment, and chemical suits. (A more detailed list of the 
    kinds of PPE covered appears in the Summary and Explanation, above.)
    
    Industry Profile
    
        The proposed rule is concerned only with who pays for OSHA-required 
    PPE; that is, it would not require employers to provide PPE where none 
    has been required before. Instead, the proposed rule merely stipulates 
    that required PPE be paid for by the employer, except in the case of 
    safety-toe footwear and prescription safety eyewear that meets the 
    three proposed conditions. In other words, the required PPE is 
    currently being paid for either by the employer or the employee. The 
    proposed rule would shift the costs of that portion of the PPE 
    currently being paid for by the employee (except for safety-toe 
    footwear and prescription safety eyewear meeting the proposed 
    conditions) to their employers, as has been OSHA's intent. (See the 
    Legal Considerations section of the preamble, above, for details of 
    OSHA's legal interpretation of this issue.) To the extent that this 
    rule has the effect of improving the quality of PPE being used or of 
    ensuring that PPE is being used where it has not previously been used, 
    such improved compliance would result both in additional benefits and 
    costs to the economy. Nevertheless, to determine the extent of PPE 
    usage and the potential magnitude of any shift in costs, OSHA has 
    developed a profile of industry PPE use and payment patterns.
    
    Data on PPE Usage Patterns
    
        The data relied on to develop this industry profile derive from a 
    number of sources, although the Agency relied on survey data for its 
    estimates of use patterns for most types of PPE. The main source of 
    information on PPE use patterns for general industry was a telephone 
    survey of more than 5,000 employers conducted by OSHA in 1989 (ERG 
    1998), in support of the Agency's 1994 PPE rulemaking.4 The 
    survey yielded industry- and size-class-specific PPE use information 
    for nearly all industries affected by that rulemaking and the current 
    one. The survey provided information on PPE use in shipyards, within 
    the context of SIC 37, Transportation Manufacturing. It did not, 
    however, survey the construction industry.
    ---------------------------------------------------------------------------
    
        \4\ Some of the results from this survey were used in OSHA's 
    background report in support of its 1994 PPE Regulatory Impact 
    Assessment (OSHA 1994).
    ---------------------------------------------------------------------------
    
        Data on usage patterns in the construction industry derive 
    primarily from a study done for the Office of Technology Assessment 
    (OTA 1984) in 1982 by Springborne Associates. In this survey of 
    employers, OTA provided estimates of the number of construction workers 
    using various types of PPE. As with the 1989 PPE survey, the Agency 
    assumes that the patterns of PPE usage (percentage of employees using 
    PPE) within sectors of the construction industry have remained 
    constant. The Agency believes that this is a reasonable assumption, in 
    part because OSHA's construction rules governing PPE usage have 
    remained the same since 1972. Further, the OTA survey reported that 
    several types of PPE (e.g., hard hats, gloves, eye protection) are used 
    by virtually all construction workers; thus it would be impossible for 
    usage of these types of PPE to have increased significantly over time. 
    The general assumption that PPE usage patterns have not changed 
    significantly over time is supported by a recent OSHA analysis of 
    respirator use patterns conducted for the Agency's final rule for 
    respiratory protection (63 FR 1172, January 8, 1998). This analysis 
    shows that respirator usage patterns have not changed substantially 
    from those shown in the OTA report. A comparison of the OTA data for 
    several other types of PPE (e.g., gloves, eye protection, faceshields, 
    safety shoes and hard hats) with usage data from the 1989 PPE survey 
    also indicated no clear shift in usage for these types of PPE. Thus, 
    OSHA believes that these estimates of PPE usage in construction are 
    reasonable. However, as will be discussed further below, OSHA is 
    conducting a survey to gather more up-to-date information on PPE use 
    and payment. This survey will be used to update the estimates of usage 
    of PPE in construction.
        To confirm the overall accuracy of the survey data on PPE use in 
    construction, the Agency contacted several PPE distributors to obtain 
    information on the market share for various PPE items in the 
    construction industry, as compared to market share in other sectors. 
    Comparing OSHA's estimates of the percentage of PPE costs attributable 
    to construction with the distributors' estimates of the share of PPE 
    sales occurring in the construction industry shows that OSHA's 
    estimates of PPE use in construction are correct and may, if anything, 
    be high. If OSHA's estimates are high, this analysis would tend to 
    overstate the potential costs and impacts of the proposed rule on the 
    construction industry. For example, OSHA's analysis estimates that 
    approximately 25 percent of the costs of all PPE occur in the 
    construction sector, while the distributors indicated that the 
    construction sector accounted for 20 percent of the value of PPE sales.
        Estimating use patterns for some specific types of PPE required 
    additional analysis. For example, the OTA survey did not collect data 
    on fall protection PPE. The number of employees using fall protection 
    in construction was estimated from an analysis of occupational 
    categories, based on data from BLS's 1994 Occupational Exposure Survey 
    (OES) 5. Additionally, the OES data allowed OSHA to estimate 
    the number of workers requiring welding equipment in construction and 
    in some industries not covered by the 1989 PPE survey (i.e., SICs 15, 
    16, 17, 46, 47, 59, 73, 87 and 89). Finally, because the OTA survey did 
    not have data on the extent of the use of shoes with metatarsal guards, 
    OSHA relied on the 1989 PPE survey data, which show that about 11 
    percent of all safety shoes have metatarsal guards; this percentage was 
    applied to the OTA estimates of safety shoe usage to estimate 
    metatarsal guard usage in the construction industry.
    ---------------------------------------------------------------------------
    
        \5\ For workers in some occupations, such as structural metal 
    workers and roofers, all employees were assumed to use fall 
    protection, clearly an overestimate. For workers in other 
    occupations, 10-20 percent were assumed to use fall protection.
    ---------------------------------------------------------------------------
    
        Table VI-1 shows OSHA's estimates of the extent of PPE use in the 
    industries covered by the proposed rule. A total of 19.6 million 
    workers are estimated to wear one or more kinds of PPE in these 
    industries. Non-prescription safety glasses are worn by approximately 
    6.7 million workers, while 7.7 million workers wear hard hats and 10.6 
    million wear protective gloves of various kinds. Industries with the 
    largest number of PPE-wearing employees include construction special 
    trades (SIC 17), with 2.9 million such employees, building construction 
    trades (SIC 15), with 1.2 million, wholesale trade--durable goods (SIC 
    50), with 1.6 million, and wholesale trade--non-durable goods (SIC 51), 
    with 1.2 million PPE-wearing employees.
    
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    Data on PPE Payment Patterns
    
        To derive estimates of current employer payment patterns with 
    regard to PPE, the Agency consulted several sources: a national study 
    of collective bargaining agreements (BNA 1995), information from OSHA's 
    State-plan States, information from OSHA's 1989 PPE survey (ERG 1998), 
    and a panel of experts on PPE payment patterns (ERG 1998).
        The data available to OSHA suggest that most employers in OSHA's 
    jurisdiction are already paying for the PPE they provide to their 
    employees to comply with OSHA standards. They do so because of labor-
    management agreements and collective bargaining contracts, and for 
    other obvious reasons: if they pay for the PPE, they know what kinds of 
    PPE their employees are using, can ensure that it is replaced when 
    needed, and can require standardized procedures for cleaning, storing, 
    and maintaining it. In other words, they can control what PPE is used 
    and how it is used, and thus can have greater assurance that they are 
    in fact in compliance with OSHA's standards. Other reasons why 
    employers prefer to pay for PPE, according to the expert panel convened 
    by OSHA to obtain information on PPE patterns of use and payment, are:
         The employer has experience with injuries that could have 
    been prevented by PPE use;
         The employer has received input from his/her insurance 
    carrier;
         The employer's staff and employees are aware of job-
    related hazards and know about PPE use; and
         The employer is concerned about the likelihood of an OSHA 
    inspection (ERG 1998).
        A recent study of collective bargaining agreements showed that 55% 
    of contracts mentioning safety equipment require employers to pay for 
    PPE, while only 11% of such agreements require the employee to pay for 
    any PPE; this latter figure includes payment for all kinds of safety 
    shoes. In addition, nearly half of all U.S. workers work in States 
    covered by OSHA State plans. These States generally require employers 
    to pay for mandatory PPE, with the exception, in some cases, of safety-
    toe footwear and prescription safety glasses. For example, Kentucky, 
    which operates its own OSHA program under an approved State-plan, 
    requires employers to pay for all required PPE except that which is 
    personal in nature and is also used off the job. California has 
    required employers to pay for all PPE, without exception, for many 
    years. OSHA is currently reviewing the PPE payment policies of all of 
    its State-plan partners; to date, all of the State plans responding 
    have a policy of requiring employers to pay for most PPE items.
        To develop detailed estimates of sectoral patterns of PPE payment, 
    OSHA recently sponsored an expert panel of individual representatives 
    from industry, labor, insurance companies, and safety equipment 
    manufacturers and distributors. These individuals are recognized for 
    their knowledge of PPE use and purchasing patterns in the general 
    industry, construction, and maritime sectors. Many panelists indicated 
    that the kinds of PPE that could potentially be affected by the 
    proposed rule, i.e., those where a shift in costs from employees to 
    employers could potentially occur, were hard hats, gloves, safety 
    glasses (non-prescription), goggles, safety shoes (other than safety-
    toe safety shoes), welding hoods and goggles, faceshields, fall 
    protection equipment, and chemical protective clothing. Based on the 
    responses of individual members of the panel, this industry profile 
    includes all the major types of PPE identified as having such 
    potential. However, the Agency solicits comments on any types of PPE 
    not included in this analysis, the extent of the use of such PPE in 
    each affected industry, and the extent to which employers do not 
    currently pay for such PPE, in each affected industry.
        Table VI-2 summarizes the findings of the expert panel, which are 
    presented as the percentage of all PPE costs currently estimated to be 
    borne by employers, by industry and type of PPE. The table reports the 
    median response, i.e., the median percentage reported by the experts in 
    each case, except for manufacturing, where the panel estimated that 
    100% of costs for the affected kinds of PPE are being borne by 
    employers (OSHA has reduced this to 95% to be conservative) and the 
    service industries (where OSHA assumed that the percentages attributed 
    by the experts to the wholesale trade industry would be applicable to 
    all service industries). The panel's estimates of the percentage of PPE 
    costs currently being borne by employers were generally highest for 
    manufacturing and transportation and lowest for construction and 
    shipyards, although estimates even within these industries varied 
    widely by type of PPE. For example, the panel estimated that 87% of 
    employers in the transportation industry currently pay for non-
    prescription safety eyewear, while 91.5% percent of these employers 
    currently pay for chemical protective clothing. In construction, where 
    the pattern of employer payment for PPE is generally lower than for 
    other industries, 70% of employers are estimated currently to pay for 
    non-prescription safety eyewear, while only 50% pay for gloves to 
    protect against abrasion and laceration.
        OSHA believes that Table VI-2 generally presents an accurate 
    picture of current PPE payment patterns in various industries at the 
    present time, comporting with the Agency's own experience. Thus the 
    proposed rule, rather than representing a departure from current 
    practice, will largely reflect it.
    
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        In order to further ensure that the Agency has accurate data on 
    current patterns of PPE payment and usage, OSHA is conducting a 
    nationwide telephone survey of American workplaces dealing specifically 
    with that question. The Agency intends to have the results available 
    for review and comment before the final rule is published. The 
    information from the survey will be used to modify and update this 
    economic analysis as needed with respect to both PPE use patterns 
    (Table VI-1) and PPE payment patterns (Table VI-2). When the PPE survey 
    is completed, OSHA will reopen the record to enable the public to 
    comment on the results.
    
    Technological Feasibility
    
        This rule does not change any PPE requirements, but affects only 
    the issue of who pays for PPE. All of the PPE affected by this 
    rulemaking has already been found to be technologically feasible in 
    other rulemakings. Personal protective equipment is widely 
    manufactured, distributed, and used in workplaces in all of the 
    industries covered by OSHA standards. The proposed rule thus raises no 
    issues of technological feasibility.
    
    Benefits of the Proposed Rule
    
        Both OSHA's own enforcement experience and the experience of 
    members of OSHA's expert panel show that when employers do not provide 
    and pay for PPE, it is often not worn, is worn improperly, or is not 
    cared for and replaced appropriately. In the words of one panel member:
    
        Our experience has been that the biggest factor in determining 
    proper, effective use of eye protection is effective supervision--if 
    the supervisor leads by example; if he/she reinforces use of eye 
    protection by the workers under his/her supervision; if he/she has 
    replacement eye protection readily available when it gets scratched 
    or otherwise damaged or lost--then there is more likely to be a 
    pattern of effective use among the workforce. This is significantly 
    more difficult to accomplish when employees are expected to buy 
    their own PPE. (It is not generally feasible to provide PPE and then 
    charge the workers for it.) . . . It is also difficult to ensure 
    that the employees are properly trained in the care and use of PPE 
    if the employer does not provide it. (ERG 1998)
    
        Thus, two key problems can occur when employers fail to pay for 
    PPE: either the PPE is not worn in cases where it is needed to protect 
    against injury or illness, or the PPE is worn inappropriately. The 
    consequences of these failures are the same: employees are exposed to 
    chemical, physical, or safety hazards in the workplace, which, in turn, 
    results in injuries, illnesses, and death (as documented in OSHA's 
    recent respiratory protection rule (63 FR 1152, January 8, 1998). 
    Another panel member tried to estimate the quantitative differences 
    between employer and employee payment for PPE:
    
        When employees are made responsible for purchasing their own 
    PPE, I believe that their probabilities of (1) actually purchasing 
    PPE, and (2) purchasing appropriate PPE, are diminished because they 
    must use some or all of their funds for this equipment, whereas they 
    would rather save this money for their own purposes, and they simply 
    don't have the resources to understand and choose among available 
    PPE. There is always a reluctance to use one's own funds to pay for 
    replacing or repairing workplace PPE. I believe that when employees 
    are responsible for their own PPE that a higher incidence of non-use 
    or misuse occurs. I would expect that figure would be approximately 
    40% for employee-purchased PPE versus 15 to 20% for employer-
    purchased PPE. (ERG 1998)
    
        The estimates provided by this expert panelist are consistent with 
    the statements of other panelists, as well as with OSHA's enforcement 
    and regulatory experience. Most panel members indicated that if the 
    employer did not pay for PPE, the PPE was not provided. To the extent 
    that this is the case, OSHA's estimates may actually underestimate the 
    effects of having employers pay for and provide PPE. To estimate the 
    benefits of employer PPE payment, OSHA used the panel's estimates of 
    the differences in effectiveness between employee-paid and employer-
    paid PPE, and the estimates of the total numbers of injuries, illnesses 
    and deaths preventable by PPE that were developed for the 1994 PPE 
    rulemaking. OSHA invites comment from those with experience in this 
    area, to assist the Agency to refine, revise if necessary, or confirm 
    the accuracy of this estimate, as discussed below.
        In 1994, OSHA examined, for each body part, the number of injuries 
    preventable by the then newly revised PPE rule [59 FR 16352]. OSHA 
    reviewed 1,170 OSHA Form 200s describing almost 64,000 injuries; these 
    forms had been submitted to OSHA in response to the 1989 PPE survey. 
    The profile of injuries, as defined by body part, very closely tracked 
    those in BLS's injury data base [OSHA 1994, pp. V-11-13]. Information 
    on the nature of the injury and the circumstances surrounding the 
    accident was used to determine the extent to which PPE would have 
    prevented the injury. Most injuries were not considered preventable by 
    PPE. For example, sprains and strains (nature), or injuries caused by 
    overexertion (circumstance), were considered not to be preventable by 
    PPE. Eye injuries, by contrast, tended to be highly preventable.
        From these injury descriptions, it was possible to determine that 
    approximately one-third of injuries in general industry were 
    preventable with PPE. However, within this group, it was apparent that 
    PPE could be particularly effective in protecting certain body parts. 
    As indicated in the 1994 analysis [OSHA 1994, p. V-16], eye injuries 
    were estimated to be 95 percent PPE preventable; foot and toe, 75 
    percent; face and ear, 68 percent; and hand and finger, 63 percent. 
    Head injuries were judged to be 45 percent preventable. Over 90 percent 
    of these injuries were incurred by production workers in the subset of 
    high-hazard industries selected for study in the PPE survey; in other 
    words, they reflect the sort of preventable process-related PPE 
    injuries which Sec. 1910.132 was intended to prevent. The full analysis 
    of the injuries judged to be preventable through the proper use of PPE 
    is presented in detail in the Regulatory Impact Assessment [OSHA 1994]. 
    In that analysis, OSHA found that almost 900,000 injuries in the 
    general industry and maritime sectors would be preventable by full 
    compliance with the new PPE rule, i.e., that 900,000 injuries could 
    have been prevented if employees had actually worn the appropriate 
    protective equipment. This analysis did not cover the construction 
    sector. OSHA assumed that the same preventability factors would apply 
    in construction as in the general industry and maritime sectors.
        For the analysis of the Employer Payment for PPE rule, OSHA took 
    into consideration the fact that compliance with the rule will not be 
    perfect and that the likelihood of full compliance is influenced by who 
    pays for the PPE. Therefore, OSHA developed an estimate of the number 
    of injuries, illnesses, and deaths potentially averted by this rule by 
    combining the following information: 6
    ---------------------------------------------------------------------------
    
        \6\ The number of injuries resulting from the lack of 
    appropriate PPE can be determined by examining both the likelihood 
    of employers not providing PPE under the two payment scenarios, and 
    data on the current pattern of payment for PPE. The equation for a 
    particular body part and relevant type of PPE can be described this 
    way:
        ((.4Ep/(.4Ep + .175En))  x  total PPE-preventable injuries = # 
    injuries among employees paying for their own PPE Where:
        Ep = # of employees paying for their own PPE
        En = # of employees not paying for their own PPE (employer 
    paying)
        Having determined the number of injuries falling into this 
    group, it is possible to estimate the number of injuries preventable 
    by reassigning payment responsibility to the employer. Once the 
    number of injuries among the employee-paying group is derived, it 
    has to be recognized that not all of these will be preventable by 
    switching payment systems. Since the number of injuries was derived 
    assuming that 60% of the employee-paying population is already 
    wearing PPE, the proper comparison is between the 40% nonusage in 
    the employee-paying population and the 17.5% nonusage in the 
    employer-paying population. Therefore, the percentage of injuries 
    remaining after switching to employer-payment would be .175/.4 or 44 
    percent of the original number of injuries among the employee-paying 
    group. Thus, 1-0.175/.4 provides the percentage prevented. In the 
    abstract, this equation is:
        The number of injuries prevented by switching to employer 
    payment= (# of PPE-related injuries occuring among the employee-
    paying group)  x  1-(% of time PPE is not worn when employers pay / 
    % of time PPE is not worn when employees pay))
        Using the specific numbers in this analysis, this becomes:
        The number of injuries prevented by switching to employer 
    payment= (# of PPE-related injuries occurring among the employee-
    paying group)  x  (1-(.175/.4))
        In other words, 56 percent (1-(.175/.4)) of these injuries would 
    be preventable by switching payment patterns from employees to 
    employers.
        This analysis has included only half of the PPE-related injuries 
    occurring currently in the United States because approximately half 
    of all employees are already covered by employer payment 
    requirements in State-plan States. This analysis also focuses only 
    on those body parts, e.g., eyes, head, hand, foot, most likely to be 
    protected by PPE.
    
    ---------------------------------------------------------------------------
    
    [[Page 15422]]
    
        (1) the number of injuries preventable through proper use of PPE, 
    classified by type of PPE (from 1994 economic analysis);
        (2) the expert panel member's estimate that PPE will be missing or 
    used inappropriately 17.5% of the time when the employers pay for their 
    employee's PPE;
        (3) the expert panel member's estimate that PPE will be missing or 
    used inappropriately 40% of the time when employees pay for their own 
    PPE; and
        (4) the number of employees with employer paid PPE (see the 
    Industry Profile section of this analysis).
        Table VI-3 presents the number of injuries preventable by this 
    rulemaking in general industry and construction, by body part. This 
    analysis indicates that the proposed rule would avert approximately 
    47,785 injuries annually.
        Although the primary benefit of the proposed rule is that it will 
    avert injuries and save their associated costs, there are cases where 
    the lack of appropriate PPE has been fatal. At the time of the 1994 
    rulemaking, 24 fatal head injuries were considered to be preventable 
    every year in general industry through the use of PPE. Based on that 
    analysis, the Agency estimates that 6.9 percent of these cases, or an 
    average of 1.7 (.069  x  24) fatal head injuries annually, will be 
    averted by the proposed rule. According to BLS's Census of Fatal 
    Occupational Injuries, there were 263 fatal head injuries in the 
    construction industry in 1993, 44 of which were coded as ``struck by'' 
    or ``struck against.'' Since a larger portion of employees pay for 
    their own PPE in construction, the impact of the proposed rule is 
    likely to be greater in construction than in general industry. OSHA 
    therefore estimates that 12.7 percent of these 44 fatalities are 
    preventable, for a total of 5.6 (44  x  .127) averted fatal head 
    injuries annually. Therefore, in general industry and construction, the 
    Agency estimates that approximately 7 (5.6 + 1.7) lives could be saved 
    annually by compliance with the proposed rule.
        The Agency also believes that the proposed rule will achieve 
    substantial benefits in the area of fall protection, particularly in 
    construction. The proposal would prevent a number of fatalities and 
    severe injuries that are now occurring either because employee-provided 
    PPE provides inadequate protection or because the employee arrives on 
    site without the necessary PPE. For example, OSHA estimated in the 
    Regulatory Impact Analysis for Subpart M that fall protection systems 
    would prevent nearly 80 fatalities and 26,600 lost workdays annually. 
    To the extent that employers provide more effective harnesses and 
    lanyards than those currently being provided by employees, or ensure 
    that this equipment is available for use by the employee, this rule 
    will avert deaths and injuries caused by falls. However, at the current 
    time the Agency does not have sufficient detail on these accidents to 
    quantify the benefits of this effect.
    
      Table VI-3.--Injuries Judged To Be Preventable If Employers Are Required To Pay For PPE Now Being Paid For By
                                                        Employers
    ----------------------------------------------------------------------------------------------------------------
                                                                                               Total       Injuries
                                                                                  Total       injuries    judged to
                                                     Injuries     Percent of    judged to    judged to        be
                                                    judged to    those judged       be           be       prevented
                      Body part                         be          to be      preventable  preventable       by
                                                   preventable   preventable    and within     among      requiring
                                                      by PPE       by this       scope of    employees     employer
                                                                  rulemaking       this      paying for  payment for
                                                                     \1\        rulemaking      PPE          PPE
    ----------------------------------------------------------------------------------------------------------------
    General Industry
        Eye......................................      117,296          31.0        36,362        8,085        4,548
        Face & ear...............................       36,810          50.0        18,405        4,427        2,490
        Head & neck..............................      116,050          50.0        58,025       14,272        8,028
        Hand & finger............................      281,221          50.0       140,611       30,771       17,309
        Foot & toe...............................      129,452           5.5         7,120        4,109        2,311
                                                  ------------------------------------------------------------------
          Subtotal...............................      680,830  .............      260,522       61,665       34,686
    Construction:
        Eye......................................       25,524          31.0         7,912        3,824        2,151
        Face & ear & head & neck.................       13,445          50.0         6,722        3,027        1,703
        Hand & finger............................       44,589          50.0        22,295       15,509        8,724
        Foot & toe...............................       21,399           5.5         1,177          926          521
                                                  ------------------------------------------------------------------
          Subtotal...............................      104,957  .............       38,106       23,286       13,098
                                                  ==================================================================
          Total..................................      785,787  .............      298,629       84,951       47,785
    ----------------------------------------------------------------------------------------------------------------
    \1\ Only half of these injuries are judged to be within the direct coverage of this rule because employer
      payment rules already apply in State plan States; non-prescription safety glasses constitute approximately 62%
      of safety glasses; shoes with metatarsal guards account for 11% of all safety shoes.
     
    Source: OSHA Office of Regulatory Analysis.
    
    
    [[Page 15423]]
    
    Direct Savings Resulting From the Reduction in Injuries Attributable to 
    the Proposed Rule
    
        This section evaluates the direct savings associated with the 
    injuries averted by the proposed rule; it does not attempt to place a 
    monetary value on the lives that will be saved by compliance with the 
    rule or on pain, suffering and other similar effects avoided. These 
    other effects of occupational injuries and illnesses include the pain 
    and suffering experienced by workers and their families, loss of 
    esteem, disruption of family life, and feelings of anger and 
    helplessness. Occupational injuries and illnesses impose an enormous 
    burden on society in addition to the direct outlays of money for 
    medical expenses, lost wages and production, and other purely economic 
    effects.
        Some aspects of the burden of occupational injuries and illnesses 
    can be quantified in monetary terms. These aspects of the problem of 
    work-related injuries and illnesses can be measured by the losses 
    experienced by employees and by the other costs that are externalized 
    to the rest of society. One consequence of the failure of PPE programs 
    to prevent job-related injuries is the growth of enormously expensive 
    income maintenance programs such as workers' compensation and long-term 
    disability programs. These costs impose a burden on society separate 
    from and in addition to the human toll in pain and suffering caused by 
    workplace-related injuries.
        One measure of some of the losses associated with lost time due to 
    work-related injuries is the lost output of the worker, measured by the 
    value the market places on his or her time. This value is measured as 
    the worker's total wage plus fringe benefits. Other costs include: (1) 
    Medical expenses, (2) costs of workers' compensation insurance 
    administration, (3) indirect costs to employers (other than those for 
    workers' compensation administration), and (4) legal expenses of 
    employees.
        OSHA estimates the value of lost output by starting with workers' 
    compensation indemnity payments and then adding other losses associated 
    with work-related illnesses and injuries. The Agency then follows four 
    steps to arrive at a value for lost output:
        (1) Calculate PPE-related illness and injury in terms of workers' 
    compensation indemnity payments;
        (2) Add the difference between the value of these indemnity 
    payments and the worker's after-tax income, based on various studies 
    comparing workers' compensation payments with after-tax income. This 
    step estimates the magnitude of lost after-tax income;
        (3) Add the estimated value of taxes, based on the typical value of 
    taxes as a percentage of after-tax income. This step estimates the 
    value of total income lost; and
        (4) Add the value of fringe benefits, based on data on fringe 
    benefits as a percentage of total income. This step estimates the total 
    market value of the lost output.
        In this approach, injuries are clearly undervalued, because OSHA 
    assumes that the value associated with injuries is the same as the 
    value of claims for workers' compensation. An analysis of workers' 
    compensation claim data from the Argonaut Insurance Company for 1993 
    show that the weighted average claim value of the injuries shown in 
    Table VI-3 is $2,408. Based on nationwide estimates from the U.S. 
    Social Security Administration, an average of 58 percent of these 
    payments are paid out for indemnity, and the remaining 42 percent are 
    paid out for medical costs [USSA, 1993].
    
    Indemnity/Lost Income
    
        Workers' compensation indemnity payments typically take two forms: 
    temporary total disability payments, which cover absences from work 
    prior to the stabilization of the condition, and permanent disability 
    payments, which compensate the worker for the long-term effects of a 
    stabilized condition. On a nationwide basis, it is estimated that 
    permanent disability payments account for 61.5 percent of all indemnity 
    payments [Berkowitz and Burton].
        The extent to which income is replaced by each type of indemnity 
    payment (i.e., temporary or permanent) differs. First, although rules 
    vary by State, temporary disability income is designed in most States 
    to replace two-thirds of the worker's before-tax income. However, most 
    States place a maximum and minimum on the amount of money paid out to 
    the worker, regardless of his/her actual former income. Studies by the 
    Worker Compensation Research Institute (WCRI) show that temporary total 
    disability payments replace between 80 to 100 percent of the after-tax 
    income of the majority of workers [WCRI, 1993]. From 3 to 44 percent of 
    the workers receive less than 80 percent of their after-tax income, and 
    from 0 to 16 percent receive more than 100 percent of their after-tax 
    income. Unfortunately, WCRI does not provide estimates of the average 
    replacement rates for all workers in a State. However, based on these 
    data, it seems reasonable to assume that, on average, workers receive 
    no more than 90 percent of their after-tax income while on temporary 
    disability. On the other hand, data show that permanent partial 
    disability payments replaced 75 percent of income lost in Wisconsin, 58 
    percent in Florida, and 45 percent in California [Berkowitz and 
    Burton]. OSHA uses the simple average of these three--59 percent--to 
    estimate the extent of after-tax income replacement for permanent 
    partial disabilities 7.
    ---------------------------------------------------------------------------
    
        \7\ The use of a simple average rather than a population-
    weighted average results in a lower estimate of income loss and is 
    thus a conservative approach.
    ---------------------------------------------------------------------------
    
        Based on these data, OSHA estimated after-tax income from the total 
    indemnities paid for injuries preventable by the proposed rule by 
    assuming, based on estimates for all workers' compensation claims 
    provided by Berkowitz and Burton, that temporary disabilities account 
    for 38.5 percent of all PPE-preventable indemnity payments and replace 
    90 percent of after-tax income, and that permanent partial disabilities 
    8 account for 61.5 percent of PPE-preventable indemnity 
    payments and replace 60 percent of after-tax income.
    ---------------------------------------------------------------------------
    
        \8\ Permanent ``partial'' disabilities include all permanent 
    disabilities, ranging from 1 to 100 percent disabled.
    ---------------------------------------------------------------------------
    
    Fringe Benefits
    
        In addition to after-tax income loss, lost output includes the 
    value of taxes that would have been paid by the injured worker and 
    fringe benefits that would have been paid by the worker's employer. 
    Total income-based taxes (individual Social Security payments, Federal 
    income tax, and State income tax) paid were assumed to be 30 percent of 
    total income. Fringe benefits were estimated as 39 percent of before-
    tax income, based on the average fringe benefit data provided by BLS 
    [BLS, 1997].
        Tables VI-4 and VI-5 apply the estimation parameters developed 
    above to calculate the total value of the lost output potentially 
    associated with temporary and permanent partial disabilities, 
    respectively, once the final standard has been fully implemented. As 
    shown, the total value of the lost output associated with potentially 
    avoidable accepted workers' compensation claims that result in 
    temporary total disability is estimated at $55.8 million, and that 
    associated with permanent partial disabilities at $129.7 million a 
    year.
    
    [[Page 15424]]
    
    
    
        Table VI-4.--Value of Lost Output Associated With Temporary Total
              Disabilities Resulting From PPE-Preventable Injuries
    ------------------------------------------------------------------------
                                                              Injuries/costs
                         Type of benefit                         prevented
    ------------------------------------------------------------------------
    Total Number of PPE-Preventable Cases Annually..........          47,785
    Weighted Average Total Cost per Claim...................          $2,408
    Indemnity Share of Payment (58% of Total Claim).........          $1,396
    Medical Share of Payment (42% of Total Claim)...........          $1,011
    Value of Temporary Total Disability Indemnity Payments       $25,689,814
     \1\....................................................
    Lost-After-Tax Income Above the Value of Indemnity            $2,854,424
     Payments \2\...........................................
    Lost Value of Tax Payments \3\..........................     $11,866,247
    Lost Value of Fringe Benefits \4\.......................     $15,426,122
    ------------------------------------------------------------------------
        Total...............................................     $55,836,606
    ------------------------------------------------------------------------
    \1\ Number of cases X indemnity payments per case X 38.5 percent
      indemnity value share attributable to temporary total disability.
    \2\ Temporary total disability payments have been estimated to equal 90
      percent of lost after-tax income.
    \3\ Taxes are estimated to equal 30 percent of before-tax income.
    \4\ Fringe benefits=39 percent of wage income [BLS, 1995].
     
    Source: U.S. Department of Labor, OSHA, Office of Regulatory Analysis.
    
    
       Table VI-5.--Value of Lost Output Associated With Permanent Partial
              Disabilities Resulting From PPE-Preventable Injuries
    ------------------------------------------------------------------------
                                                              Injuries/costs
                         Type of benefit                         prevented
    ------------------------------------------------------------------------
    Number of PPE-Preventable Injury Cases..................          47,785
    Value of Indemnity Payments (Permanent Partial) \1\.....     $41,036,975
    Lost-After-Tax Income Above the Value of Indemnity           $28,517,220
     Payments \2\...........................................
    Lost Value of Tax Payments \3\..........................     $26,142,441
    Lost Value of Fringe Benefits \4\.......................     $33,985,174
                                                             ---------------
        Total...............................................    $129,681,810
    ------------------------------------------------------------------------
    \1\ Number of cases prevented X indemnity payments per claim X 61.5
      percent value share attributable to permanent partial disability.
    \2\ Permanent partial disability payments are estimated to equal 59
      percent of the value of lost after-tax income.
    \3\ Taxes are estimated to be 30 percent of before tax income.
    \4\ Fringe benefits=39 percent of wage income (BLS, 1995].
     
    Source: U.S. Department of Labor, OSHA, Office of Regulatory Analysis.
    
    Medical
    
        Medical costs do not include any first-aid costs incurred by the 
    employer and, in some cases, costs for transportation to a medical 
    facility; however, most elements of medical costs are included in the 
    share of payments paid for medical costs, estimated to be 42 percent of 
    the cost of the claims. Costs for treating injuries will remain 
    relatively constant, regardless of who is actually paying for the 
    medical care (i.e., the employer through workers' compensation, or a 
    medical insurer). As presented in Table VI-6, OSHA estimates the 
    medical costs of injuries preventable by the proposed standard to be 
    $48.3 million a year.
    
       Table VI-6. Annual Social Benefits Associated With the Reduction in
                Injuries as a Result of Employer Payment for PPE
    ------------------------------------------------------------------------
                                                              Injuries/costs
                         Type of benefit                         prevented
    ------------------------------------------------------------------------
    Lost Output Associated with Temporary Disabilities \1\..     $55,836,606
    Lost Output Associated with Permanent Disabilities \2\..     129,681,810
    Medical Costs \3\.......................................      48,319,399
    Insurance Administrative Costs \4\......................      29,912,009
    Indirect Costs \5\......................................      23,929,607
                                                             ---------------
        Total...............................................     287,679,432
    ------------------------------------------------------------------------
    \1\ Derived from Table VI-4.
    \2\ Derived from Table VI-5.
    \3\ Calculated by multiplying the number of injuries by the value of
      medical payments presented in Table VI-4.
    \4\ Calculated by multiplying the total value of claims times 26
      percent.
    \5\ Calculated by multiplying the total value of workers' compensation
      medical and indemnity payments times 20.8 percent.
     
     Source: U.S. Department of Labor, OSHA, Office of Regulatory Analysis.
    
    Administrative Costs
    
        The administrative costs of workers' compensation insurance include 
    all of the costs associated with the administration of workers' 
    compensation insurance. Such costs include any funds spent directly on 
    claims adjustment, as well as all other administrative costs incurred 
    by the insurer in conjunction with experienced losses.
        OSHA estimates the administrative costs of PPE-related injury 
    claims as follows:
         Costs to private insurance companies are estimated, based 
    on 1990 data, as 35.8 percent of the costs of incurred claims [Klein et 
    al., 1993]. These costs include those for claims adjustment, sales, 
    general expenses, taxes, licenses, and fees (historical data show that 
    all of these elements of private insurance costs increase as the value 
    of benefits paid out increases).
         Costs to State funds were estimated, based on 1990 data, 
    as 17.8 percent of the costs of incurred claims [Klein et al., 1993]. 
    These costs include those for claims administration and for costs 
    labeled as ``general costs.''
         Costs to self-insured companies, estimated by the Social 
    Security Administration to be 6.8 percent of the value of benefits paid 
    in 1990 [Social Security Administration, 1993].
        To estimate the aggregate value of the administrative costs of 
    insurance, these costs are weighted by the value of the benefits 
    payments made by each type of insurer (i.e., private insurer, state 
    fund, etc.), based on 1990 data. This calculation is shown in Table VI-
    7, which indicates that estimated weighted administrative costs 
    constitute 26 percent of the total value of claims. The total value of 
    claims includes the value both of the indemnity and medical portions of 
    insurance company payments. The costs shown in Table VI-7 represent the 
    administrative costs associated with workers' compensation.
    
    [[Page 15425]]
    
    
    
         Table VI-7.--Derivation of Average Administrative Costs as a Percent of the Value of Claims, by Type of
                                                        Insurance
    ----------------------------------------------------------------------------------------------------------------
                                                                      Administrative
                                                                        costs as a
                                                                       percentage of   Percentage of
                            Type of insurance                            incurred     total benefits  Weighted value
                                                                        claims \1\       paid \2\
                                                                          (1990)          (1990)
    ----------------------------------------------------------------------------------------------------------------
    Private Insurance...............................................            35.5            58.1            20.6
    State Fund......................................................            17.8            22.8             4.1
    Self-Insurance..................................................             6.8            19.4             1.3
                                                                     -----------------
        Total.......................................................  ..............  ..............           26.0
    ----------------------------------------------------------------------------------------------------------------
    \1\ From Klein et al. (1993) for private insurance and State funds, and U.S. Social Security Administration
      (1993) for self-insurance.
    \2\ Values for administrative costs as a percent of incurred claims, weighted by total benefits paid.
    
        It should be noted that cases that fall outside the workers' 
    compensation system will typically have administrative costs associated 
    with them--indeed, to the extent they are borne by private medical 
    insurers, they will carry relatively greater administrative expenses 
    than the average estimated here.
    
    Indirect Costs
    
        The term ``indirect costs'', describes the costs of work-related 
    injuries that are borne directly by employers but are not included in 
    workers' compensation claim costs. Such costs are best estimated by 
    looking at the costs an employer actually incurs at the time a workers' 
    compensation claim is filed. These costs include a number of social 
    benefits, such as payments of sick leave to workers for absences that 
    are shorter than the workers' compensation waiting period, losses in 
    production associated with the injured workers' departure and return to 
    work, losses in the productivity of other workers, and a wide variety 
    of administrative costs other than those borne directly by the workers' 
    compensation insurer, e.g., medical management costs for the injured 
    worker. Based on a study [Hinze & Applegate] of indirect costs of 
    injuries in the construction industry, OSHA estimates that indirect 
    costs are 20.8 percent of the value of workers' compensation medical 
    and indemnity payments, i.e., add up to an indirect cost multiplier of 
    1.21. As indicated in Table VI-6, the Agency estimates that this 
    proposed revision to the PPE standard will save $23.9 million annually 
    in these indirect costs.
        Taken in its entirety, the proposed amendment to the PPE standard 
    is estimated to save $287.7 million annually in direct costs savings by 
    avoiding preventable injuries. These direct cost savings do not include 
    the economic value of the loss of leisure time. They do not account for 
    the burden of chores that are forced on other household members or 
    hired out. The direct savings also do not include the value of 
    preventing pain and suffering or loss of life.
    
    Costs of Compliance
    
        To assess the costs employers may incur to comply with the proposed 
    rule, OSHA first estimated the total costs associated with PPE 
    currently covered by OSHA PPE standards and affected by this rule. 
    OSHA's estimates of the costs of all required PPE were derived from the 
    PPE use estimates shown in Table VI-1, subtracting employees in State 
    plan States, who, as indicated in the previous section, comprise 
    approximately half of the affected workers. Unit costs for equipment 
    were taken from the Agency's economic analysis (Ex. 56, Docket S-060) 
    in support of the 1994 rulemaking that revised the personal protective 
    equipment standard (29 CFR 1910.132). Data from that analysis were 
    supplemented with new estimates of the unit costs of welding equipment 
    and goggles, and of fall protection equipment (ERG 1998). All cost 
    estimates were then updated to reflect 1998 prices.9 This 
    figure was then multiplied by the percentage of these costs not 
    currently being borne by employers (see Table VI-2).
    ---------------------------------------------------------------------------
    
        \9\ Annualized costs, updated from those used in the Final 
    Regulatory Impact Analysis for the 1994 PPE rulemaking (OSHA 1994), 
    are hard hats, $6.67; non-prescription safety glasses, $6.69; 
    goggles, $15.07; gloves, $14.07; and faceshields, $13.45. According 
    to the expert panel, welders need both helmets and goggles at 
    different times of the year. Welding helmets were assumed to have a 
    life expectancy of 5 years and to cost $32.00; welding goggles were 
    assumed to be replaced every 3 months, and to cost $11.00 (these 
    assumptions yield a combined annualized welding unit cost of 
    $51.80). Fall protection (body harness and lanyard) is assumed to 
    have a life expectancy of 5 years, and to cost $60.00 (harnesses) 
    and $60.00 (lanyards), respectively, yielding a combined annualized 
    fall protection unit cost of $29.27. Reusable chemical protective 
    coveralls were assumed to have a life expectancy of one year and to 
    cost $20.00, based on a current supply catalog (Lab Safety 1995). 
    Safety shoes with metatarsal guards cost approximately $100 (ERG 
    1998); based on an average two year life (OSHA 1994) this yields an 
    annualized cost of $55.17.
    ---------------------------------------------------------------------------
    
        Table VI-8 shows the total annualized costs of compliance for the 
    proposed rule, by industry and kind of PPE. Total annualized costs are 
    $61.9 million. Gloves and safety shoes (with metatarsal guards) account 
    for the largest portion of these costs, at $17.3 and $14.3 million, 
    respectively; welding helmets/goggles account for an additional $10.2 
    million per year. These three types of PPE together account for 68 
    percent of all of the proposed rule's costs of compliance. Construction 
    special trades (SIC 17), at $24.2 million, and building construction 
    contractors (SIC 15), at $6.2 million, are the industries estimated to 
    incur the greatest costs.
    
    BILLING CODE 4510-26-P 
    
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    Economic Impacts and Certification of No Significant Impact
    
        OSHA analyzed the economic impacts of the proposed rule by 
    calculating average annualized compliance costs as a percentage of the 
    sales and profits of all establishments in affected industries. As 
    shown in Table VI-9, annualized costs to employers for establishments 
    in all affected industries are less than 0.01 percent of sales and only 
    0.02 percent of profits. Even in the most affected industry, Welding & 
    Other Repair (SIC 76), annualized costs are still less than 0.5 percent 
    of profits. Costs of this magnitude do not threaten the financial 
    health of even the most marginal firm. Since most employers in most 
    industries already pay for PPE, the major competitive effect of the 
    rule is to limit any small short-term competitive advantage a few firms 
    gain by not paying for PPE, i.e., by requiring their employees to pay 
    for PPE that other employers in their industry pay for. As shown in the 
    benefits section, many firms already pay for PPE because it proves 
    cost-effective; many other firms may find that, when benefits as well 
    as costs are considered, the costs of PPE are more than offset by these 
    benefits.
        OSHA also assessed the economic impacts of the proposed rule on 
    small firms within each affected industry. Impacts on two sizes of 
    small firm were estimated: those with fewer than 500 employees, and 
    those with fewer than 20 employees. In using 500 employees and 20 
    employees to characterize firms for this screening analysis for 
    impacts, OSHA is not proposing definitions of small business that are 
    different from those established by the Small Business Administration 
    (SBA) in its Table of Size Standards. The SBA size definitions are SIC-
    code specific, and are generally expressed either in terms of number of 
    employees or as annual receipts. Instead, OSHA is using 500 employees 
    and 20 employees as a simple method of screening for significant 
    impacts across the large number of industries potentially affected by 
    the proposed rule. Use of this approach avoids the need to interpolate 
    because the underlying industry profile data do not correspond with the 
    SIC-specific size categories established by the SBA. (OSHA notes that, 
    for almost all of the industries affected by this rulemaking, the SBA 
    size definitions fall within the 20- to 500-employee range.) OSHA 
    believes that this screening approach will capture any significant 
    impacts on small firms in affected industries. The Agency welcomes data 
    supporting this assumption or data demonstrating that firms in the 
    industry-specific size classes used by the SBA will experience 
    significant impacts.
        The results of these analyses (Tables VI-10 and VI-11, 
    respectively) demonstrate that the annualized costs of compliance do 
    not exceed 0.1 percent of sales or 1 percent of profits for small firms 
    in any covered industry. Based on these analyses, in accordance with 
    the Regulatory Flexibility Act (5 U.S.C. 605) OSHA certifies that the 
    proposed rule will not have a significant impact on a substantial 
    number of small entities.
        Because statistically meaningful survey data are available only at 
    the two-digit Standard Industrial Classification level, OSHA has 
    conducted this analysis of economic impacts at the 2-digit level. OSHA 
    believes that this level of analysis adequately captures meaningful 
    variations in economic impacts. Further, the costs are so low that even 
    if a sub-industry were to have substantially higher costs as a 
    percentage of sales or profits, the financial health of that sub-
    industry would not be in any danger. However, the Agency requests 
    comment on any specific industry that may have an unusual pattern of 
    PPE usage or payment that could lead to more severe impacts than those 
    portrayed for its 2-digit sector.
        To test its conclusions that the regulation is economically 
    feasible and will not have a significant impact on a substantial number 
    of small entities, the Agency performed sensitivity analyses relying on 
    ``worst case'' scenarios. First, in order to test the potential impact 
    on OSHA's estimates of errors in the expert panel's characterization of 
    payment patterns, the Agency examined impacts across all industries 
    using the extreme assumption that employers were not currently paying 
    for any protective equipment. Under this extreme scenario, the proposed 
    rule's costs of compliance would quadruple, but the impacts of even 
    these costs in nearly all industries would still be below one percent 
    of profits. The largest impacts would occur in SIC 76 (Welding & other 
    repair), where costs under this extreme scenario would be less than 3 
    percent of profits.
        Second, the Agency focused on the construction industry, which was 
    not covered in OSHA's 1989 PPE use survey and is estimated in OSHA's 
    analysis to account for half of the rule's costs of compliance, to see 
    what the impacts would be under an extremely unlikely scenario that 
    assumed that all construction employees wore all types of 
    PPE.10 Under this scenario, the largest impact would occur 
    in SIC 17, where costs would equal 2.1 percent of profits. This result 
    shows that, even if the Agency had no data on PPE usage in the 
    construction industry and simply assumed that every employee in the 
    sector used every possible type of PPE, the proposed standard would 
    still be economically feasible and would not have a significant impact 
    on a substantial number of small entities.
    ---------------------------------------------------------------------------
    
        \10\ This assumes that all construction employees need welding 
    PPE, fall protection, chemical protective clothing and safety shoes 
    with metatarsal guards and that the same workers need faceshields 
    and standard goggles in addition to welding helmets and welding 
    goggles.
    ---------------------------------------------------------------------------
    
        Third, the Agency has constructed a ``worst-worst'' case scenario 
    for the construction industry; this scenario assumes that employees in 
    this industry are wearing all types of PPE and pay for all of this PPE, 
    i.e., that no employer currently pays anything for any type of PPE. 
    Even under this scenario, the costs of the proposed rule would be less 
    than 5 percent of profits and less than 1 percent of revenues for firms 
    in all construction subsectors. This analysis shows that even if the 
    Agency had no data on either PPE use or PPE payment patterns in the 
    construction industry, it would still be reasonable to conclude that 
    the proposed standard is economically feasible in the construction 
    sector and that small firms in that sector would not experience 
    significant impacts.
    
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    Environmental Impact Analysis
    
        OSHA has reviewed this proposed rule in accordance with the 
    National Environmental Policy Act (NEPA) (42 USC 4321 et seq.), the 
    regulations of the Council on Environmental Quality (40 CFR Part 1500), 
    and DOL's NEPA procedures (29 CFR Part II). As a result of this review, 
    OSHA has determined that this action will have no significant impact on 
    the external environment.
    
    Unfunded Mandates Analysis
    
        This proposed rule on Employer Payment for Personal Protective 
    Equipment has been reviewed in accordance with the Unfunded Mandates 
    Reform Act of 1995 (UMRA) (2 USC 1501 et seq.) and Executive Order 
    12875. As discussed in the Preliminary Economic Analysis, OSHA 
    estimates that compliance with the proposed rule will require 
    expenditures of $62.3 million per year by affected employers. 
    Therefore, this proposed rule is not a Federal private sector mandate 
    and is not a significant regulatory action within the meaning of 
    Section 202 of UMRA. OSHA standards do not apply to State and local 
    governments except in States that have voluntarily elected to adopt an 
    OSHA State plan. Consequently, the proposed rule does not meet the 
    definition of a ``Federal intergovernmental mandate'' (Section 421(5) 
    of UMRA). In addition, the Agency has concluded that virtually all 
    State-plan States, the only States in which this rule could have any 
    effect on State and local government employers, already require that 
    employers pay for required PPE. Thus, this rule will not have an impact 
    on employers who are State and local governments. In sum, this proposed 
    rule does not impose unfunded mandates within the meaning of UMRA.
    
    References for the Preliminary Economic Analysis
    
    Berkowitz, M., and Burton, J. Permanent Partial Disability Benefits 
    In Worker Compensation. W. E. Upjohn Institute for Employment 
    Research, Kalamazoo, Michigan, 1987.
    Bureau of Labor Statistics, ``Employer Costs for Employee 
    Compensation Summary'', News Release, October 21, 1997.
    Bureau of National Affairs, Basic Patterns in Union Contracts, 
    Fourteenth Edition, BNA Books, 1995.
    Business Roundtable. Improving Construction Safety Performance: A 
    Construction Industry Cost Effectiveness Project. Report A-3, 
    January, 1982.
    Chelius, J., Galvin, D., and Owens, P. Disability: It's more 
    expensive than you think. Business & Health, pp. 78-84, Mid-March 
    1992.
    Eastern Research Group, Patterns of PPE Provision, 1998.
    Hinze, J. and Appelgate, L.L. Costs of Construction Injuries. 
    Journal of Construction Engineering and Management 117(3):537-550, 
    1991.
    Klein, R.W., Nordman, E.C., and Fritz, J.L. Market Conditions in 
    Workers' Compensation Insurance. Interim Report Presented to the 
    NAIC Workers' Compensation Task Force, July 9, 1993.
    Lab Safety Supply, General Safety Catalog--Personal & Environmental 
    Safety, Janesville, WI, January 1995.
    Levitt, R.E., Parker, H.W., and Samelson, N.M. Improving 
    Construction Safety Performance: The User's Role. Prepared under 
    contract for The Business Roundtable Construction Industry Cost 
    Effectiveness Project, August 1981.
    Levitt, R.E., and Samelson, N.M. Construction Safety Management. 
    McGraw-Hill Book Company, New York, New York, 1987.
    Occupational Safety and Health Administration, Office of Regulatory 
    Analysis, Background Document to the Regulatory Impact and 
    Regulatory Flexibility Assessment for the PPE Standard, 1994, 
    Exhibit 56, S-060.
    Office of Technology Assessment, Preventing Illness and Injury in 
    the Workplace, Volume 2--Part B: Working Papers, 1994; Exhibit 189, 
    Docket H049.
    U.S. Interdepartmental Workers Compensation Task Force. Workers' 
    Compensation Reform: Challenge for the 80's. 1979.
    U.S. Social Security Administration. Annual Statistical Supplement 
    to the Social Security Bulletin. Washington, D.C., 1993.
    Worker Compensation Research Institute. Income Replacement in 
    California. December, 1993.
    Bureau of National Affairs, Basic Patterns in Union Contracts, 
    Fourteenth Edition, BNA Books, 1995.
    
    VII. Public Participation
    
    Written Comments
    
        Interested parties are invited to submit written data, views, and 
    comments with respect to this proposal. These comments must be 
    postmarked by June 14, 1999. Written comments are to be submitted in 
    quadruplicate, or in 1 original (hard copy) and 1 disk (3\1/2\'' or 
    5\1/4\'') in WordPerfect 5.0, 5.1, 6.0, 8.0, or ASCII, to the Docket 
    Office, Docket No. S-042, Room N2625, U.S. Department of Labor, 200 
    Constitution Ave. N.W., Washington, DC. 20210.
        Comments may also be submitted electronically through OSHA's 
    Internet site at URL, http://www.osha-slc.gov/e-comments/e-comments-
    ppe.html. Please be aware that information such as studies, journal 
    articles, and so forth cannot be attached to the electronic response 
    and must be submitted in quadruplicate to the above address. Such 
    attachments must clearly identify the respondent's electronic 
    submission by name, date, and subject, so that they can be attached to 
    the correct response. These comments must be transmitted by June 14, 
    1999.
        All comments, views, data, and arguments received within the 
    specified comment period will be made part of the record and will be 
    available for public inspection and copying at the above Docket Office 
    address.
    
    Notice of Intention To Appear at the Informal Hearing
    
        Under section 6(b)(3) of the Occupational Safety and Health Act, 
    OSHA is scheduling an informal public hearing to provide the public 
    with an opportunity to testify on the issues raised by the proposed 
    standard. The informal public hearing will be held in Washington, DC on 
    June 22, 1999, and will extend through July 2, 1999, depending on the 
    number of persons intending to participate.
        The hearing will begin at 9:30 a.m. on June 22, 1999 in the 
    auditorium of the Frances Perkins Building, U.S. Department of Labor, 
    200 Constitution Avenue NW, Washington, DC 20210.
        All persons who wish to participate in the hearing must file four 
    copies of a notice of intention to appear. This notice must be 
    postmarked on or before June 1, 1999. The notice of intention to 
    appear, which will be available for inspection and copying at the OSHA 
    Docket Office (Room N2625), telephone (202) 693-2350, must contain the 
    following information:
        1. The name, address, and telephone number of each person to 
    appear;
        2. The capacity in which the person will appear;
        3. The approximate amount of time required for the presentation;
        4. The issues that will be addressed;
        5. A brief statement of the position that will be taken with 
    respect to each issue; and,
        6. Whether the party intends to submit documentary evidence and, if 
    so, a brief summary of it.
        Mail the notice of intention to appear to: Docket Office, Docket S-
    042, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, 
    DC 20210; telephone (202) 693-2350.
        A notice of intention to appear also may be transmitted by 
    facsimile to (202) 693-1648 (Attention: Docket S-042), by June 1, 1999 
    provided that the original and 3 copies are sent to the same address 
    and postmarked no more than 3 days later.
    
    Filing of Testimony and Evidence Before the Hearing
    
        Any party requesting more than 10 minutes for a presentation at the
    
    [[Page 15432]]
    
    hearing, or who will submit documentary evidence, must provide in 
    quadruplicate, the complete text of the testimony, including any 
    documentary evidence to be presented at the hearing. One copy must not 
    be stapled or bound and must be suitable for copying. These materials 
    must be provided to the Docket Office at the address above and be 
    postmarked no later than June 14, 1999.
        Each such submission will be reviewed in light of the amount of 
    time requested in the notice of intention to appear. If the information 
    contained in the submission does not justify the amount of time 
    requested, the Agency will allocate a more appropriate amount of time 
    and notify the participant of that fact prior to the informal public 
    hearing.
        Any party who has not substantially complied with this requirement 
    may be limited to a 10 minute presentation, and may be requested to 
    return for questioning at a later time.
        Any party who has not filed a notice of intention to appear may be 
    allowed to testify for no more than 10 minutes as time permits, at the 
    discretion of the Administrative Law Judge, but will not be allowed to 
    question witnesses.
        Notices of intention to appear, testimony, and evidence will be 
    available for copying at the Docket Office at the address noted above.
    
    Conduct and Nature of the Hearing
    
        The hearing will commence at 9:30 a.m. on June 22, 1999. At that 
    time, any procedural matters pertaining to the proceeding will be 
    resolved.
        The nature of an informal rulemaking hearing is established in the 
    legislative history of section 6 of the Occupational Safety and Health 
    Act and is reflected in OSHA's rules of procedure for hearings (29 CFR 
    1911.15(a)). Although the presiding officer is an Administrative Law 
    Judge (ALJ), and limited questioning by persons who have filed notices 
    of intention to appear is allowed on crucial issues, the proceeding is 
    informal and legislative in type. OSHA hearings provide interested 
    persons with an opportunity to make effective oral presentations, 
    without procedural restraints that unnecessarily impede or protract the 
    rulemaking process.
        Additionally, the hearing is primarily for information gathering 
    and clarification. It is an informal administrative proceeding, rather 
    than an adjudication. The technical rules of evidence, for example, do 
    not apply. The regulations that govern OSHA hearings, combined with the 
    pre-hearing guidelines that the ALJ will issue for this hearing, will 
    ensure fairness and due process and also facilitate the development of 
    a clear, accurate, and complete record. Questions of relevance, 
    procedure, and participation generally will be decided in favor of the 
    most effective development of the record.
        The hearing will be conducted in accordance with 29 CFR part 1911. 
    It should be noted that Sec. 1911.4 specifies that the Assistant 
    Secretary may, upon reasonable notice, issue alternative procedures to 
    expedite proceedings or for other good cause.
        The hearing will be presided over by an Administrative Law Judge 
    who makes no decision or recommendation on the merits of OSHA's 
    proposal. The responsibility of the Administrative Law Judge is to 
    ensure that the hearing proceeds at a reasonable pace and in an orderly 
    manner. The Administrative Law Judge, therefore, will have all of the 
    powers necessary and appropriate to conduct a full and fair informal 
    hearing as provided in 29 CFR part 1911, including the powers:
        1. To regulate the course of the proceedings;
        2. To dispose of procedural requests, objections, and comparable 
    matters;
        3. To confine the presentations to the matters pertinent to the 
    issues raised;
        4. To regulate the conduct of those present at the hearing by 
    appropriate means;
        5. At the Judge's discretion, to question and permit the 
    questioning of any witness and to limit the time for questioning; and,
        6. At the Judge's discretion, to keep the record open for a 
    reasonable, stated time (known as the post-hearing comment period) to 
    receive written information and additional data, views, and arguments 
    from any person who has participated in the oral proceedings.
        OSHA recognizes that there may be interested persons who, through 
    their knowledge of safety or their experience in the subject matter of 
    this proceeding, would wish to endorse or support certain provisions in 
    the proposed standard. OSHA welcomes such supportive comments in order 
    that the record of this rulemaking will present a balanced picture of 
    the public response on the issues involved.
    
    VIII. State-Plan States
    
        The 25 States and Territories with their own OSHA-approved 
    occupational safety and health plans must revise their existing 
    standards within six months of the publication date of the final 
    standard or show OSHA why there is no need for action, e.g., because an 
    existing State standard covering this area is already ``at least as 
    effective'' as the revised Federal standard. These States are: Alaska, 
    Arizona, California, Connecticut (State and local government employees 
    only), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, 
    Nevada, New Mexico, New York (State and local government employees 
    only), North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, 
    Utah, Vermont, Virginia, Virgin Islands, Washington, and Wyoming.
    
    IX. OSHA's Supplementary Statement of Reasons for Its 
    Interpretation of 29 CFR 1910.132(a)
    
        This supplementary statement explains OSHA's interpretation that 
    the general protective equipment standard, 29 CFR 1910.132(a), requires 
    employers to provide protective equipment, including personal 
    protective equipment, at no cost to employees, except for equipment 
    that is personal in nature and normally used away from the worksite. 
    (OSHA uses the abbreviation PPE to cover both protective equipment and 
    personal protective equipment.) OSHA initially published this 
    interpretation in an October 1994 memorandum to the field. In October 
    1997, the Occupational Safety and Health Review Commission decided that 
    the Secretary had not adequately explained the basis for her 
    interpretation, in light of a perceived conflict between the 1994 
    memorandum and interpretive statements made by OSHA officials in 
    letters issued between 1974 and 1994. OSHA is including the following 
    supplementary statement in this Notice of Proposed Rulemaking to set 
    forth in detail the basis for its position on this important issue.
    
    A. Background
    
        OSHA's general protective equipment standard, 29 CFR 1910.132 
    states, in relevant part, as follows:
    
    Section 1910.132 General Requirements
    
        (a) Application. Protective equipment, including personal 
    protective equipment for eyes, face, head, and extremities, 
    protective clothing, respiratory devices, and protective shields and 
    barriers, shall be provided, used, and maintained in a sanitary and 
    reliable condition wherever it is necessary by reason of hazards of 
    processes or environment, chemical hazards, or mechanical irritants 
    encountered in a manner capable of causing injury or impairment in 
    the function of any part of the body through absorption, inhalation 
    or physical contact.
        (b) Employee-owned equipment. Where employees provide their own 
    protective equipment, the employer shall be responsible to assure 
    its adequacy, including proper maintenance, and sanitation of such 
    equipment.
    
    
    [[Page 15433]]
    
    
        On October 18, 1994, Deputy Assistant Secretary James Stanley 
    issued a memorandum to OSHA's regional administrators and heads of 
    directorates announcing a uniform agency policy on employers' 
    responsibility to pay for personal protective equipment under section 
    1910.132 and other standards requiring employers to ``provide'' such 
    equipment. The interpretation outlined in the Deputy Assistant 
    Secretary's memorandum requires employers to pay for all personal 
    protective equipment that is necessary for the employee to do his or 
    her job safely and in compliance with OSHA standards, except for 
    equipment that is personal in nature and normally used away from the 
    worksite such as steel-toe safety shoes. OSHA subsequently issued a 
    compliance directive, STD 1-6.6, incorporating this interpretation and 
    stating that violations of the policy would be cited.
        In March 1996, OSHA issued a citation alleging that the Union Tank 
    Car Company violated 29 CFR 1910.132(a) by requiring employees to pay 
    for metatarsal safety shoes and welding gloves. Upon review, the 
    Occupational Safety and Health Review Commission issued a decision 
    vacating the citation. Secretary of Labor v. Union Tank Car Co., 18 
    O.S.H. Cas. (BNA) 1067 (Rev. Comm. 1997). In Union Tank, the Commission 
    stated that it had addressed the meaning of 29 CFR 1910.132 in The Budd 
    Company, 1 O.S.H. Cas. (BNA) 1548 (Rev. Comm. 1974), and had concluded 
    that the standard could not be interpreted to require employers to pay 
    for personal protective equipment. 18 O.S.H. Cas. (BNA) at 1068. The 
    Commission also noted that OSHA had issued at least five letters of 
    interpretation between 1974 and 1994 stating that the standard does not 
    specify who pays the cost of personal protective equipment. Id. 
    Characterizing the Agency's approach in these letters as acquiescence 
    in Budd, the Commission criticized OSHA for failing to provide an 
    adequate explanation for the apparently new interpretation announced in 
    the Stanley memorandum. The Commission noted that an agency changing 
    its course ``must supply a reasoned analysis indicating that prior 
    policies and standards were being deliberately changed, not casually 
    ignored.'' Id. at 1069.
        The Secretary believes that requiring employers to pay for personal 
    protective equipment that must be worn because of hazards in the 
    workplace is central to the effective administration of the Act. While 
    the Secretary believes that the interpretation announced in STD 1-6.6 
    is faithful both to the standards' plain language and to the 
    legislative intent, she is mindful of the Commission's concern that the 
    Agency has not provided an adequate explanation of the basis for this 
    interpretation. To address these concerns, this supplementary statement 
    reviews the history of prior interpretive statements and explains in 
    detail the linguistic and policy bases for requiring employers to pay 
    for personal protective equipment.
        The following discussion is organized into two sections. Section 
    II, below, explains the bases for the Secretary's interpretation, 
    including the meaning of the word ``provide'' in the standard, the 
    legislative intent that employers bear the costs of safety and health 
    requirements, and the reasons why requiring employers to pay for 
    personal protective equipment contributes in practical ways to 
    increased safety protection for employees. Section III addresses the 
    decisions issued by the Commission and the Third Circuit in Budd. The 
    section examines in detail the separate rationales offered by the 
    Commissioners in the case, and explains why those rationales (none of 
    which commanded a Commission majority) are not Commission precedent, 
    nor are they consistent with subsequent Federal and Commission case 
    law. The section also addresses OSHA's prior statements regarding 
    personal protective equipment and demonstrates that OSHA did not have a 
    settled national policy on the standard's interpretation until 1994.
    
    B. The Language and Purpose of the Standard, as Well as the Policy of 
    the OSH Act, Support the Secretary's Construction
    
        The Secretary's interpretation of section 1910.132 is that the 
    employer's duty to ``provide'' personal protective equipment when 
    hazards dictate its use includes the obligation to pay for the 
    equipment. See Borton, Inc. v. OSHRC, 734 F.2d 508, 510 (10th Cir. 
    1984) (usual meaning of provide is ``to furnish, supply, or make 
    available''). Accord, Usery v. Kennecott Copper Corp., 577 F.2d 1113, 
    1119 (10th Cir. 1978); Secretary v. Baker Concrete Constr. Co., 17 
    O.S.H. Cas. (BNA) 1236, 1239. These definitions strongly imply that 
    what is to be ``provided'' is to be given without cost to the 
    recipient.
        The Review Commission itself has found that ``provide'' includes 
    the requirement to ``pay for'' under a standard closely analogous to 
    section 1910.132. In Secretary of Labor v. Erie Coke Corp., 15 O.S.H. 
    Cas. (BNA) 1561 (Rev. Comm. 1992), the Commission addressed the meaning 
    of 29 CFR 1910.1029(h)(1), which requires employers to ``provide and 
    assure the use of'' appropriate personal protective equipment for coke 
    oven workers. The Commission held that the plain meaning of 
    ``provide,'' as well as other factors, supported the Secretary's 
    interpretation that flame resistant gloves must be furnished at no 
    charge. Id. at 1563 (the dictionary definitions ``suggest . . . that 
    ``provide'' encompasses more that merely making items available'').
        Courts have relied upon this meaning in holding that safety 
    equipment and other items to be ``provided'' under analogous state and 
    Federal regulations must be furnished at no charge. In Bendix Forest 
    Prods. Corp. v. Division of Occupational Safety and Health, 600 P.2d 
    1339 (Cal. 1979) (en banc), the California Supreme Court held that Cal/ 
    OSHA standards requiring employers to ``furnish'' and ``provide'' 
    safety devices precluded employers from charging employees for personal 
    protective equipment. The Court found, inter alia, that ``a reasonable 
    and ordinary interpretation of ``furnish'' . . . concomitantly requires 
    the employer to pay for the safety equipment.'' Id. at 
    1344.11 See also Nelson v. Thornburg, 567 F. Supp. 369, 379-
    82 (E.D. Pa. 1983), aff'd, 732 F.2d 146 (3d Cir), cert. denied, 469 
    U.S. 1188 (1985) (HHS regulations defining ``reasonable accommodation'' 
    under section 504 of the Rehabilitation Act to include ``the provision 
    of readers'' required employer to pay for readers to accommodate 
    qualified blind employees, unless such costs would pose an undue 
    burden).
    ---------------------------------------------------------------------------
    
        \11\  The words ``provide'' and ``furnish'' are often used 
    interchangeably. Webster's Third New Int'l Dictionary, id.
    ---------------------------------------------------------------------------
    
        The Secretary's construction that employers are responsible for the 
    cost of personal protective equipment finds further support in the 
    language and purpose of the OSH Act. A central principle embodied in 
    the Act is that the fundamental duty of ensuring safe working 
    conditions is to be borne by employers, not employees. Early in the 
    Act's development, Federal appellate courts established that section 
    5(a), 29 U.S.C. 654(a), allocates to employers sole legal 
    responsibility for achieving compliance with safety and health 
    standards.12 Atlantic & Gulf Stevedores v. OSHRC, 534 F.2d 
    541, 553 (3d Cir. 1976); United Steelworkers of America v. Marshall, 
    647 F.2d 1189, 1231 (D.C. Cir. 1980). These courts concluded that 
    although section 5(b) nominally refers to
    
    [[Page 15434]]
    
    duties of employees as well as employers, the Act's substantive 
    requirements and enforcement scheme 13 are directed only at 
    ---------------------------------------------------------------------------
    employers. Accordingly, the statute's reference to employee duties is:
    
        \12\ Section 5(a)(2) of the Act provides, in relevant part, that 
    ``[each employer shall comply with occupational safety and health 
    standards . . . issued pursuant to this Act.'' 29 U.S.C. 654(a)(2).
        \13\ Sections 9(a) and 10(a) provide for the issuance of 
    citations and notifications of proposed penalties only to employers. 
    29 U.S.C. 658(a), 659(a). Similarly, section 10(a) refers only to 
    employer contests of citations and proposed penalties. While 
    employees may intervene in proceedings initiated by the employer, 
    the only independent right granted employees is to contest the 
    reasonableness of any time period fixed by the Secretary for 
    abatement of a violation. 29 U.S.C. 659(c). Section 17 provides for 
    the assessment of civil monetary penalties only against employers. 
    29 U.S.C. 666. See Atlantic & Gulf Stevedores, 534 F.2d at 553.
    ---------------------------------------------------------------------------
    
    essentially an exhortation to employees to cooperate in the 
    standards and is not meant to diminish in any way the employer's 
    compliance responsibilities or his responsibility to assure 
    compliance by his own employees. Final responsibility for compliance 
    with the requirements of this Act remains with the employer.
    
    United Steelworkers, 647 F.2d at 1231. See also Atlantic & Gulf 
    Stevedores, 534 F.2d at 553 (the Act's reference to employee duties in 
    section 5(b) is ``essentially devoid of content'').
        The legislative history demonstrates that employers' compliance 
    responsibilities include the obligation to pay for devices and work 
    practices necessary to render workplaces safe. The Supreme Court found 
    that the legislative history:
    
    shows that Congress understood that the Act would create substantial 
    costs for employers, yet intended to impose such costs when 
    necessary to create a safe and healthful working environment. 
    Congress viewed the costs of health and safety as a cost of doing 
    business. Senator Yarborough, a cosponsor of the [Act], stated: ``We 
    know the costs would be put into consumer goods but that is the 
    price we should pay for the 80 million workers in America . . . 
    Senator Eagleton commented that ``[t]he costs that will be incurred 
    by employers in meeting the standards of health and safety to be 
    established under this bill are, in my view, reasonable and 
    necessary costs of doing business.'' Other Members of Congress 
    voiced similar views.
    
    American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 519-521 
    (1980) (ATMI) (internal citations omitted, original emphasis). See also 
    Forging Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436, 1451 (4th 
    Cir. 1985) (en banc) (in view of Supreme Court's ``clear statement'' in 
    ATMI that Congress intended employers to bear the costs of safety and 
    health, OSHA may logically require employers to bear the costs of 
    hearing protectors under the hearing conservation standard).
        The D.C. Circuit also found persuasive indications of Congress's 
    intent to have employers bear general financial responsibility under 
    the Act. It noted that the report of the Senate subcommittee from which 
    the statute emerged stressed the need to place the cost of standards on 
    employers:
    
    many employers--particularly smaller ones--simply cannot make the 
    necessary investment in health and safety and survive competitively, 
    unless all are compelled to do so. The competitive disadvantage of 
    the more conscientious employer is especially evident where there is 
    a long period between exposure to a hazard and manifestation of an 
    illness. In such instances a particular employer has no economic 
    incentive to invest in current precautions, not even in the 
    reduction of workmen's compensation costs, because he will seldom 
    have to pay for the consequences of his own neglect.
    
    United Steelworkers, 647 F.2d at 1231 (quoting S. Rep. No. 91-1282, 
    91st Cong. 2d Sess. 4 (1970), reprinted in, Senate Comm. on Labor and 
    Public Welfare, 92nd Cong. 1st Sess., Legislative History of the 
    Occupational Safety and Health Act of 1970, at 144). See also 
    Legislative History at 444, 1150.
        Conspicuously absent from the legislative history is any indication 
    from Congress that compliance costs should be borne by employees. 
    Indeed, it is reasonably implicit in the statutory scheme that Congress 
    sought to maintain the standard of living of working men and women and 
    did not contemplate that employees' pay and benefits would be 
    sacrificed to achieve safe and healthful workplaces. For example, the 
    Senate report notes that employers are bound by the ``general and 
    common duty to bring no adverse effects to the life and health of their 
    employees throughout the course of their employment. Employers have 
    primary control of the work environment and should ensure that it is 
    safe and healthful.'' Legislative History at 149.
        In view of the OSH Act's structure and history, there is no serious 
    dispute that employers must pay for engineering controls necessary to 
    reduce exposures to toxic substances. See, e.g. Budd, 1 O.S.H. Cas. 
    (BNA) at 1550, n.5. In the Secretary's view, there is no principled 
    distinction between engineering controls, which employers undoubtedly 
    must pay for, and the personal protective equipment for which payment 
    is required under STD 1-6.6.14 OSHA addressed this issue in 
    rulemaking on the Cancer Policy in 1980 and found no distinction, for 
    payment purposes, between engineering controls and personal protective 
    equipment necessary to protect employees from exposure to carcinogenic 
    substances. OSHA stated:
    
        \14\ OSHA recognizes that safety-toe shoes do possess special 
    characteristics which distinguish them from other types of personal 
    protective equipment for cost-allocation purposes. See, e.g., Budd, 
    1 O.S.H. Cas. (BNA) at 1550 (distinguishing safety shoes, which are 
    uniquely personal in nature and used away from work, from capital 
    equipment, which employers ordinarily pay for).
    ---------------------------------------------------------------------------
    
        [T]he requirement that employers pay for protective equipment is 
    a logical corollary of the accepted proposition that the employer 
    must pay for the institution of required engineering and work 
    practice controls. To the extent that protective equipment, like 
    engineering controls, is intended also to protect against . . . 
    contamination, employers logically must pick up the expense. There 
    is no rational basis for distinguishing . . . personal protective 
    equipment [from engineering controls] The goal, in each case, is 
    employee protection; consequently, the responsibility of paying for 
    the protection should, in each case rest on the employer.
    
    45 FR 5261 (January 22, 1980).15
    ---------------------------------------------------------------------------
    
        \15\ OSHA's approach to payment for PPE under health and safety 
    standards is discussed in detail above.
    ---------------------------------------------------------------------------
    
        OSHA has further determined, in rulemakings addressing specific 
    hazards, that placing payment responsibility on the employer best 
    carries out the Act's purpose of fostering employee safety. 29 U.S.C. 
    651(b). Requiring employers to pay for personal protective equipment 
    contributes to increased health and safety protection in several 
    practical ways. The employer is most knowledgeable about hazards 
    existing in the workplace and is therefore best able to select and 
    maintain appropriate protective equipment. Requiring employers to 
    purchase personal protective equipment ensures that they retain control 
    over the selection, issuance, maintenance and use of the devices. See 
    43 FR 19619 (May 5, 1978) (preamble to final rule on inorganic 
    arsenic); 46 FR 4153 (January 16, 1981) (hearing conservation 
    preamble). Shifting the financial burden to employees, on the other 
    hand, ``risks losing the necessary control over the organized and 
    consistent selection, issuance, maintenance and use of such 
    equipment.'' 46 FR 4153.
        Employer payment for protective equipment also contributes to 
    improved health and safety by removing economic disincentives to 
    cooperation by employees. In promulgating requirements for medical 
    surveillance and medical removal protection (MRP) for some health 
    standards, OSHA found that employees would be reluctant voluntarily to 
    cooperate in such programs if they believed that they would suffer a 
    loss of income as a result. See, e.g., 43 FR 54442-54449 (November 21, 
    1978) (attachments to lead
    
    [[Page 15435]]
    
    preamble). See also United Steelworkers of America, 647 F.2d at 1230-
    12377 (finding lead standard's MRP provisions to be authorized under 
    the statute and reasonable). OSHA has also required employers to 
    provide medical examinations without cost to the employee in part to 
    ensure employee cooperation in taking the exams. 43 FR 19624 (May 5, 
    1978) (preamble to inorganic arsenic standard). See also Secretary of 
    Labor v. Phelps Dodge Corp., 11 O.S.H. Cas. (BNA) 1441, 1443 (Rev. 
    Comm. 1983) (noting ALJ's finding that when employees were required to 
    provide their own transportation to and from the hospital and to 
    sacrifice their personal time to take medical examinations for arsenic 
    exposure, 42% of them failed to participate in the medical surveillance 
    program).
        OSHA considers that this evidence, which shows that employees make 
    decisions that risk their health and safety to avoid suffering economic 
    loss is relevant to the issue of payment for personal protective 
    equipment. It is certainly reasonable to believe that employees who are 
    furnished personal protective equipment at no charge are more strongly 
    motivated to wear the devices, and to replace them when they wear out 
    or are damaged, than are employees who must purchase these devices. In 
    the Union Tank case, the employee representative presented an affidavit 
    that some employees taped or wrapped wire around their damaged 
    metatarsal safety boots in order to avoid having to pay up to $130 per 
    pair to replace them. Similarly, in Ormet Primary Aluminum Corp., OSHRC 
    No. 96-0470, an employee testified that he continued to wear safety 
    boots though the protective steel toes were exposed and posed an 
    electrocution hazard because he could not afford a new pair. The 
    employee also testified that some workers put a cement-like substance 
    over the steel toes of their boots when the leather covering wore away, 
    but that this practice was hazardous because the substance was 
    flammable. Thus, the policy outlined in STD 1-6.6 is not only 
    consistent with the plain meaning of the standard's text, it is 
    supported by the statutory context and by significant practical safety 
    considerations.
    
    C. The Interpretation of Sec. 1910.132 Announced in STD 1-6.6 is 
    Supported by Better Reasoned Authority and Reflected OSHA's Initial 
    Determination on an Appropriate National Policy Regarding Payment for 
    Personal Protective Equipment Under the Standard
    
    1. Introduction
        This section addresses the grounds relied upon by the Commission in 
    Union Tank for rejecting the Secretary's interpretation that section 
    1910.132(a) requires employers to pay for most types of personal 
    protective equipment. The Commission first stated that in Budd it had 
    determined that ``provide'' in section 1910.132(a) could not be 
    interpreted to mean ``pay for.'' 18 O.S.H. Cas. (BNA) at 1068. The 
    Commission then stated that OSHA had, for twenty years, acquiesced in 
    the interpretation of the standard announced in Budd. Id. at 1069. The 
    Commission held that the Secretary's ``new interpretation'' of section 
    1910.132(a) announced in 1994 was unreasonable because it represented a 
    change in policy without adequate explanation. Id. This holding was 
    based on five letters of interpretation issued from 1976 to 1993 
    stating that the standard does not specify who pays for personal 
    protective equipment.
        The following sections address the Budd decisions, as well as other 
    relevant precedent, and explain in detail why Budd did not announce an 
    authoritative interpretation of section 1910.132(a). The sections also 
    address the agency's prior approaches to the cost allocation issue.
        During the period from 1974 through October 1994, OSHA made a 
    variety of statements on the question of employer payment for personal 
    protective equipment. OSHA concedes that the statements of some agency 
    officials during this period are inconsistent with the interpretation 
    outlined in STD 1-6.6. However, these letters do not amount to an 
    authoritative agency interpretation that employers are not required to 
    pay for personal protective equipment. During the period from 1978 
    through 1994, OSHA promulgated health standards, pursuant to section 
    6(b) of the OSH Act, requiring employers to pay for personal protective 
    equipment. In these standards, OSHA interpreted the Act to require 
    employers to pay for personal protective equipment to the same extent 
    that they would be required to pay for engineering controls. 
    Furthermore, during the relevant time period some OSHA officials 
    interpreted section 1910.132 to require employers to pay for personal 
    protective equipment, other than safety shoes, and one court of appeals 
    noted that the Act's legislative history supported this interpretation. 
    Considered as a whole, OSHA's actions during the period from 1974-1994 
    cannot reasonably be viewed as reflecting an official agency 
    interpretation contrary to STD 1-6.6.
    2. The Commission's Budd Decision
        The Commission's decision in Budd arose from a citation alleging 
    that the employer violated 29 CFR 1910.132(a) by failing to provide 
    safety-toe shoes to its employees. Prior to the hearing, the employer 
    moved to withdraw its notice of contest on the understanding that its 
    obligation to provide safety shoes did not include the requirement to 
    pay for them. The Secretary agreed that the employer was not required 
    to pay for the shoes because of their special characteristic, as noted 
    below; however, the union representing the employees objected on the 
    ground that the standard required employer payment. The issue presented 
    to the Commission was whether the employer's motion should be granted.
        The Secretary stressed the special characteristics of safety shoes, 
    including their use away from work, as the rationale for not requiring 
    employers to pay for this specific type of protective equipment. In her 
    brief in Budd, the Secretary stated that:
    
    by tradition, in this country shoes are considered unique items of a 
    personal nature. Safety shoes are purchased by size, are available 
    in a variety of styles, and are frequently worn off the job, both 
    for formal and casual wear. Furthermore, it is neither feasible for 
    a different employee to wear the shoes each day nor feasible that 
    upon resigning from the position an employee will leave the shoes 
    behind to be worn by another individual.
    
    See Brief of the Secretary, served January 10, 1973, at 8. However, the 
    Secretary emphasized that an interpretation requiring employers 
    generally to provide personal protective equipment free of charge would 
    be consistent with the statutory scheme. She noted that such an 
    interpretation could improve safety and health by giving employees 
    greater incentive to use personal protective equipment. Id. at 9. She 
    also noted that the Act's legislative history demonstrated Congress's 
    intent to place the costs of achieving safe and healthful workplaces 
    upon employers. Id. at 10. The Secretary concluded that ``[p]ersonal 
    protective equipment cannot be segregated from equipment necessary to 
    provide proper working conditions and therefore the purchase of such 
    equipment by the employer was contemplated by the Act
    
    [[Page 15436]]
    
    in cases where a standard might require it.'' Id. at 10-11.
        The Commission held that the employer's motion should be granted 
    because section 1910.132(a) could not be interpreted to require the 
    employer to pay for safety shoes. However, the Commission did not 
    announce a majority rationale for this conclusion. Commissioners Van 
    Namee and Cleary authored separate opinions explaining their different 
    reasoning, while Commissioner Moran concurred in the determination on 
    the motion without stating a rationale.16
    ---------------------------------------------------------------------------
    
        \16\ Commissioner Moran joined the majority on the question of 
    the disposition of the employer's motion to withdraw its notice of 
    contest relating to 29 CFR 1910.132. He dissented from the 
    Commission's decision on another cited violation, not relevant here.
    ---------------------------------------------------------------------------
    
        Commissioner Van Namee reasoned that it would be anomalous to read 
    section 1910.132(a) to require employers to provide or pay for personal 
    protective equipment in light of the wording of section 1910.132(b), 
    which contemplates the use of employee-provided equipment. 1 O.S.H. 
    Cas. (BNA) at 1549, 1550. In the Commissioner's view, such a 
    construction would render paragraph (b) meaningless. Id. at 1550. Thus, 
    he interpreted section 1910.132(a) to mean that ``where personal 
    equipment is necessary, the employer shall ensure that it is used. If 
    [the employer] provides such equipment, he is responsible for ensuring 
    that it is `provided, used and maintained in a sanitary and reliable 
    condition.' '' Id.
        Commissioner Van Namee found support for his interpretation of 
    section 1910.132(a) in the OSH Act's purpose of achieving safe 
    workplaces, a purpose he believed to be unrelated to the question of 
    payment. He stated that ``[p]rescription of cost allocations is not 
    essential to the effectuation of the Act's objectives. It is irrelevant 
    for purposes of the Act who provides and pays for the equipment. Either 
    employer or employee provision is consistent with the purpose of the 
    Act.'' Id. Commissioner Van Namee also noted that the steel-toed safety 
    shoes at issue were ``uniquely personal'' and could be used by 
    employees away from the workplace. Id., n. 5.
        Commissioner Cleary concurred in the determination on a different 
    basis. He concluded that section 1910.132(a) does impose a duty upon an 
    employer to provide directly or indirectly the required personal 
    protective equipment. Id. at 1552. He found that this reading was not 
    inconsistent with the text of paragraph (b), because paragraph (b) 
    imposes no duty upon employees to furnish the equipment. ``Rather,'' 
    Commissioner Cleary wrote, ``what paragraph (b) seems to recognize is 
    that equipment which is owned by employees may sometimes be used by the 
    employees themselves . . . . When this occurs, the paragraph 
    establishes a duty upon the employer to assure its adequacy. Under its 
    express terms, paragraph (b) does not require employees to provide the 
    equipment in the first instance.'' Id.
        Commissioner Cleary found that the OSH Act ``clearly contemplates 
    that an employer will generally assume the costs of complying with its 
    terms.'' Id. However, he concluded that the Commission lacked 
    jurisdiction to provide relief as to costs in the Budd case because 
    section 1910.132 did not, by its express terms, require employers to 
    assume the costs of personal protective equipment. Id. In the 
    Commissioner's view, the Commission lacked authority, in a proceeding 
    to enforce a citation, to interpret the standard to require payment. 
    Id. At the same time, the Commissioner noted that other relief might be 
    available. He suggested that an employer's policy of requiring 
    employees to pay for personal protective equipment could, in some 
    cases, constitute a violation of section 11(c) of the OSH Act, which is 
    enforced through actions in Federal district court. Id. at 1553.
    3. The Court of Appeals' Affirmance
        The Commission's decision was affirmed on appeal in Budd v. OSHRC, 
    513 F.2d 201 (3d Cir. 1975). The court found that the interpretation 
    reached by the Commission and the Secretary that 29 CFR 1910.132 does 
    not require employers to pay for safety-toe footwear was reasonable. 
    513 F.2d at 205. The court expressly reserved judgment on whether 
    employers could be required to pay for other types of protective 
    equipment. Id.
        As support for affirmance of the Commission's order, the court 
    found the joint position not inconsistent with the statutory scheme. 
    The panel noted that Congress did not expressly require that the 
    employer pay for protective equipment, and, in apparent agreement with 
    Commissioner Van Namee's view, observed that ``[t]his Act, unlike such 
    legislation as the Fair Labor Standards Act, is not concerned with 
    wages and hours, but rather with reducing the incidence of job-related 
    injuries.'' Id. at 206. The court also found the joint position 
    reasonable in light of the standard's language. It noted that the verbs 
    ``provided, used and maintained'' in section 1910.132(a) are phrased in 
    the passive voice without specifying whether the employer or the 
    employee is to perform these functions, and that section 1910.132(b) 
    contemplates that employees will provide some protective equipment. Id.
        In sum, in Budd, the Secretary, the Commission and the Third 
    Circuit agreed that 29 CFR 1910.132 does not require employers to pay 
    for safety-toe shoes. However, neither the Commission decision nor the 
    court decision is an authoritative interpretation of the standard as it 
    applies to other types of personal protective equipment. In Union Tank, 
    the Commission referred to Commissioner Van Namee's rationale as the 
    Commission's holding on the meaning of section 1910.132(a). 18 O.S.H. 
    Cas. (BNA) at 1068 (stating that, in Budd, ``the Commission held that 
    to read subpart (a) as requiring the employer to provide protective 
    equipment would negate subpart (b), which contemplates the use of 
    employee provided equipment''). This characterization is substantially 
    flawed because no one opinion in Budd can be said to represent the 
    Commission's official view. See Atlantic Gulf & Stevedores v. OSHRC, 
    534 F.2d at 546 (where Commission order affirms citation but each 
    Commissioner files a separate opinion announcing a different rationale, 
    no one opinion represents Commission consensus).
        In sum, four different approaches to the payment issue emerged from 
    the Budd litigation: (1) Employers should not be required to pay for 
    personal protective equipment that is uniquely personal in nature and 
    usable off the worksite, but may be required to pay for other types of 
    PPE (the Secretary's position); (2) the OSH Act is indifferent to the 
    question of who pays for personal protective equipment (the view of 
    Commissioner Van Namee, supported by the court of appeals at least for 
    safety shoes); (3) section 1910.132(a) cannot be interpreted to require 
    employers to pay for personal protective equipment in light of the 
    language of section 1910.132(b) (the view of Commissioner Van Namee); 
    and (4) section 1910.132(a) cannot be interpreted to require employers 
    to pay because it does not say so expressly (Commissioner Cleary's 
    view).
    4. OSHA's Interpretive Statements
        From 1974 through 1994, OSHA embraced a variety of approaches to 
    the issue of employer payment for personal protective equipment. In its 
    most formal statements on the issue, made in the context of rulemaking 
    proceedings on a broad spectrum of health hazards, OSHA determined that 
    the Act generally contemplates employer payment of the
    
    [[Page 15437]]
    
    costs of safety and health, including personal protective equipment. 
    OSHA's determinations on employers' responsibility to pay for personal 
    protective equipment, made on the record in rulemakings for specific 
    standards, are discussed infra. Similarly, OSHA issued an Interpretive 
    Instruction stating that under 29 CFR 1910.1029 (h)(1), personal 
    protective equipment for coke oven workers must be furnished by 
    employers at no charge. See Erie Coke Corp., 15 O.S.H. Cas. (BNA) at 
    1563 (citing STD 1-6.4 (March 12, 1979)).
        Prior to 1994, OSHA did not publish enforcement guidance on section 
    1910.132 in the Field Operations Manual or by interpretive memorandum. 
    In some letters responding to requests for information, however, agency 
    officials suggested that Budd foreclosed an interpretation of section 
    1910.132, or of OSHA personal protective equipment standards generally, 
    requiring employers to pay for personal protective equipment. In other 
    letters, OSHA noted that the standards do not specifically allocate the 
    cost of such equipment to employers, and suggested that the issue be 
    resolved through collective bargaining, where appropriate. Typical of 
    this viewpoint is the September 2, 1976 letter to Adlai E. Stevenson 
    quoted by the Commission in Union Tank.
        On the other hand, OSHA continued at times to enforce the standard 
    to require employers to pay for personal protective equipment. In 
    September 1990, OSHA issued a citation to a meatpacking firm alleging 
    that it violated section 1910.132(a) by charging its employees for 
    repair or replacement of steel mesh gloves and plastic wrist bands used 
    for protection against knife cuts.17 A July 17, 1990 agency 
    memorandum stated that although section 1910.132(a) does not 
    specifically allocate the costs of personal protective equipment to 
    employers, ``it is our position that the employer is obligated to pay 
    for PPE which is not worn off the worksite. This includes welding 
    gloves, but not safety shoes . . .'' 18 A May 20, 1994 
    agency letter responding to a request for information on OSHA's 
    enforcement policy stated that the interpretation outlined in the 
    agency's July 1990 memorandum ``is still in effect.''
    ---------------------------------------------------------------------------
    
        \17\ The citation was not contested, and thus became a final 
    order of the Commission by operation of law. 29 U.S.C. 659(a).
        \18\ OSHA's issuance of the citation under section 1910.132(a) 
    was in step with the agency's approach under other standards that do 
    not expressly require employers to pay for personal protective 
    equipment. In 1979, OSHA issued an interpretive Instruction 
    clarifying that 29 CFR 1910.1029(h)(1), which states that the 
    employer ``shall provide'' protective clothing and equipment, 
    including flame resistant gloves, for coke oven workers, requires 
    that this equipment be furnished at no cost to employees. OSHA 
    Instruction STD 1-6.4 (March 12, 1979).
    ---------------------------------------------------------------------------
    
        Deputy Assistant Secretary Stanley's memorandum of October 1994 and 
    the subsequent compliance directive STD 1-6.6 were intended to 
    harmonize the different approaches to the question of employer 
    responsibility for the costs of personal protective equipment. In 
    requiring employers to pay for all except uniquely personal equipment, 
    used off the worksite, the directive did not break new ground. Rather, 
    the interpretation enunciated in the directive closely paralleled the 
    interpretation in the July 1990 memorandum and the position taken in 
    the Secretary's brief in Budd. This policy also reflected OSHA's formal 
    position in rulemaking proceedings under section 6(b) that personal 
    protective equipment, like engineering controls, must be paid for by 
    employers unless special circumstances make it appropriate for 
    employees to provide their own equipment. In stating that the matter of 
    payment for items such as safety shoes and prescription eyewear may be 
    left to negotiation, the Stanley memorandum recognizes the unfairness 
    of requiring employers to pay for items of equipment that are normally 
    used away from work, are purchased to fit particular employees, and are 
    not, as a practical matter, reusable by other employees.
    5. Why OSHA rejects the positions of Commissioners Van Namee and Cleary 
    on the interpretation of section 1910.132 as it applies to PPE other 
    than safety-toe shoes and prescription safety eyewear
        The preceding discussion establishes two points of central 
    importance in addressing the Commission's analysis in Union Tank. 
    First, the Commission did not reach a consensus in Budd on the 
    interpretation to be given section 1910.132(a) regarding payment for 
    personal protective equipment other than safety shoes. The 
    interpretation relied upon in Union Tank as the ``holding'' in Budd is, 
    in fact, no more than the view of a single Commissioner. Second, the 
    interpretation announced in STD 1-6.6 was not a wholly new policy, nor 
    was it a change in OSHA's national policy since 1994. The statements in 
    the agency letters relied upon by the Commission reflected the views of 
    some officials that are at odds with the agency's positions taken (a) 
    in rulemaking proceedings under the Act; (b) in its brief to the 
    Commission in Budd; and (c) in a 1990 contested enforcement action 
    before the Commission. Viewed in this context, the interpretation 
    announced in the Deputy Assistant Secretary's memorandum, and formally 
    published in STD 1-6.6, is OSHA's national policy, not a change in such 
    policy.
        The following sections examine the interpretive views expressed by 
    the individual Commissioners in Budd. In light of the case law and 
    other developments since Budd, the Secretary believes that the position 
    she outlined in her Commission brief--that employers should not be 
    required to pay for equipment that is uniquely personal in nature and 
    usable off of the job--remains the only viable basis for the 
    disposition of that case. To the extent that the positions outlined in 
    the concurring opinions support an interpretation that section 1910.132 
    does not require employers to pay for any type of personal protective 
    equipment, they are inconsistent with subsequent Federal court and 
    Commission case law.
        a. The Act is not indifferent to cost-allocation. Commissioner Van 
    Namee's position that the OSH Act is indifferent to the question of who 
    pays for equipment mandated by OSHA standards has been rejected by 
    subsequent court and Commission decisions. That position ignores the 
    extensive legislative history of the Act, discussed above, indicating 
    Congress's intent to place fiscal responsibility for the safety of 
    employees on industry, which can pass the costs to consumers. Based on 
    this history, OSHA has promulgated numerous standards under section 
    6(b) of the Act, mandating that employers pay for protective devices 
    and other requirements necessary for safety and health.
        The lead standard (29 CFR 1910.1025), promulgated in 1978, clearly 
    stated the principle that employers should bear the costs of 
    requirements necessary to achievement of healthful working conditions. 
    The standard requires that an employer who removes employees from their 
    jobs because of high blood-lead levels must maintain the workers' 
    earnings and seniority rights during removal for up to eighteen months. 
    29 CFR 1910.1025(k). The standard also requires employers to provide, 
    at no charge to employees, respirators and protective clothing. 29 CFR 
    1910.1025 (f), (g). In the preamble to the Medical Removal Protection 
    (MRP) provision, OSHA explained its determination that compliance costs 
    were properly allocable to employers under the Act.
        OSHA has determined that the foregoing costs should be borne by 
    employers in the first instance . . . MRP is meant to place those 
    costs of worker protection directly on the industry at large rather 
    than on the
    
    [[Page 15438]]
    
    shoulders of individual workers unfortunate enough to be at risk of 
    material impairment to health due to occupational exposure to lead. 
    The costs of protecting worker health are appropriate costs of doing 
    business, thus employers should properly bear the economic impact of 
    temporary medical removals. The [OSH] Act . . . recognized that the 
    costs which consumers pay for goods should reflect all costs of 
    production, including costs associated with preventing . . . 
    occupational disease. Under the Act, employers have the primary 
    obligation to provide a safe and healthful work experience, [and] 
    thus should incur the costs necessary to satisfy this obligation.
    
    (43 FR 54449/3).
        Beginning in 1978, OSHA determined that the costs of personal 
    protective equipment necessary to guard employees against exposure to 
    toxic substances should be paid for by employers. The standard on 
    Inorganic Arsenic requires employers to pay for respirators, protective 
    clothing and protective equipment, including gloves, shoes, and face 
    shields or goggles. 29 CFR 1910.1018(j)(1). The preamble to the rule 
    states that:
    
    the obligation is on the employer to provide protective equipment at 
    no cost to the employee. In this way the employer is in the best 
    position to provide the correct type of equipment and keep it in 
    repair. Also, as the employer has permitted exposures to exceed the 
    permissible exposure limits, the obligation properly rests on the 
    employer.
    
    43 FR 19619 (May 5, 1978). OSHA applied the same reasoning in requiring 
    employers to pay for respirators when necessary to protect employees 
    from exposure to cotton dust. 43 FR 27387/2 (June 23, 1978) (preamble 
    to final rule on occupational exposure to cotton dust). The Cotton Dust 
    preamble notes that the language requiring employers to provide 
    respirators `` `at no cost to the employee' . . . makes explicit the 
    position which has long been implicit in all OSHA health standard 
    proceedings under section 6(b) of the Act'' Id. OSHA expressed a 
    similar view in the preamble for the 1,2-Dibromo-3-chloropropane (DBCP) 
    standard. 43 FR 11523/3 (March 17, 1978).
        In the following decades, OSHA has expanded its justification for 
    explicitly requiring employers to bear the costs of necessary 
    protective devices. In the preamble to the hearing conservation 
    standard, OSHA determined that employers should pay for hearing 
    protectors based in part on a commenter's statement that ``where 
    personal protective equipment is necessary to afford [a safe and 
    healthful working] environment, it is . . . almost universally accepted 
    that its purchase is the responsibility of the employer.'' 46 FR 4153 
    (January 16, 1981). The preamble also noted that permitting an employer 
    to charge employees for hearing protectors could discourage the use of 
    such devices and thereby undermine the effectiveness of the employer's 
    hearing conservation programs. Id.
        The formaldehyde standard, promulgated in 1987, expressly linked 
    the question of payment for personal protective equipment and the 
    employer's duty to ``provide'' such equipment under 29 CFR 1910.132. 
    The formaldehyde standard requires employers to comply with 29 CFR 
    1910.132 and 1910.133 and specifies that the appropriate protective 
    equipment is to be provided at no cost to the employee. 29 CFR 
    1910.148(h). The preamble to the formaldehyde standard stated that the 
    standard ``reminds all employers of their obligation to comply with . . 
    . 29 CFR 1910.132 . . . and requires the employer to provide such 
    clothing or equipment at no cost to the employee.'' 52 FR 46269/1 
    (December 4, 1987).
        By 1991, OSHA's policy was firmly established. In the bloodborne 
    pathogens standard, the Agency justified the requirement that employers 
    pay for various items of specialized equipment necessary to protect 
    health care workers from exposure to blood or other potentially 
    infectious materials. The preamble states that:
    
    [i]t has been the Agency's longstanding policy to hold the employer 
    responsible for controlling exposure to hazards in his or her 
    workplace and to fulfill this responsibility at no cost to the 
    employee. Therefore, the financial burden for purchasing and 
    providing personal protective equipment rests upon the employer just 
    as it does for all other control measures (e.g., engineering 
    controls).
    
    56 FR 64125/1 (December 6, 1991) (emphasis added).
        This policy has been carried forward to the present. OSHA's 
    standards for methylenedianiline, 29 CFR 1910.1050(h)(2)(i), (i)(1); 
    cadmium, 29 CFR 1910.1027(g)(1), (i)(1); 1,3 butadiene, 29 CFR 
    1910.1051(h)(1), (i); and methylene chloride, 29 CFR 1910.1052(g)(1), 
    (h)(1), promulgated between 1992 and 1997, all require employers to pay 
    for respirators, protective clothing and personal protective equipment 
    when such devices are necessary. OSHA's new Respiratory Protection 
    standard, promulgated January 8, 1988, also requires employers to 
    provide respirators, as well as training and medical evaluations, at no 
    cost to the employees. 63 FR 1271 (January 8, 1988).
        While OSHA has generally required employers to pay for all types of 
    personal protective equipment, it has recognized an exception to the 
    policy in certain circumstances. In the safety standard on logging 
    operations, promulgated shortly before issuance of the Deputy Assistant 
    Secretary's memorandum in October 1994, OSHA determined that logging 
    employers should pay for protective equipment for the head, eyes, face, 
    hands, and legs, but should not be required to pay for logging boots. 
    OSHA excepted logging boots from among the types of equipment that 
    employers must purchase for three reasons. First, the Agency found that 
    the logging industry is highly transient and that logging boots, unlike 
    other types of personal protective equipment, are not reusable. 
    Therefore, OSHA concluded, ``employers would have to purchase non-
    reusable logging boots costing $200 to $400 many times a year for 
    newly-hired employees, even though there is a significant likelihood 
    that these employees will remain in the job for only a short time.'' 59 
    FR 51684 (October 12, 1994).
        OSHA also found that logging employees tend to move from one 
    establishment to another, taking their logging boots with them as tools 
    of the trade. OSHA noted that logging boots are readily portable, and, 
    unlike head and leg protection, are sized to fit a particular employee. 
    OSHA found that it was appropriate to allow employees to follow the 
    established custom of taking their boots with them from job to job 
    rather than requiring employers to provide logging boots. Id.
        Finally, the Agency noted that there was evidence in the record 
    that employees use their logging boots away from work, for such 
    activities as hunting and cutting their own wood, and that there was 
    not comparable evidence that employees also use other types of 
    protective equipment off-site. Id. For all of these reasons, OSHA 
    decided not to require employers to purchase logging boots. However, it 
    found no basis to depart from its ``long established policy'' regarding 
    the costs of other items of required personal protective equipment. Id.
        Federal appellate courts have upheld OSHA's statutory authority to 
    impose on employers the costs of requirements reasonably necessary for 
    safe and healthful workplaces. In United Steelworkers of America, the 
    D.C. Circuit upheld OSHA's authority to charge employers with the costs 
    of MRP, finding that ``the scheme of the statute, manifest in both the 
    express language and the legislative history, appears to
    
    [[Page 15439]]
    
    permit OSHA to charge to employers the cost of any new means it devises 
    to protect workers'' 647 F.2d at 1231. The United Steelworkers court 
    noted that the Third Circuit's decision in Budd should be confined to 
    its facts, stating ``[t]he court [in Budd] stressed the special 
    character of protective devices which the employee would wear off-the-
    job as well as on-the-job and made clear it was expressing no opinion 
    on the proper party to be charged for other devices and methods. 
    Moreover, the court there failed to address the relevant parts of the 
    legislative history.'' 647 F.2d at 1231-1232, n.66.
        The Fourth Circuit upheld the hearing conservation standard's 
    allocation of the costs of hearing protectors to employers in Forging 
    Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436, 1451 (4th Cir. 1985) 
    (en banc). The Forging Indus. court noted that in view of the Supreme 
    Court's finding in ATMI that Congress intended to impose compliance 
    costs on employers, ``it is only logical that OSHA may require 
    employers to absorb such costs.'' 773 F.2d at 1451.
        The Commission itself has squarely rejected the view that the Act 
    is indifferent to cost allocation in Erie Coke Corp., discussed supra, 
    at p.4. In Erie Coke, the commission upheld the reasonableness of the 
    Secretary's construction that the coke oven emissions standard at 29 
    CFR 1910.1029(h)(1)(ii) required employers to pay for flame resistant 
    gloves. In doing so, the Commission addressed the legislative history 
    and court precedent establishing that Congress intended employers to 
    bear the costs of compliance with standards. The Commission stated: 
    ``[w]e agree with these courts of appeals that, based on the 
    legislative history, Congress intended that the cost of compliance with 
    OSHA would be uniformly reflected in the price of goods and services, 
    so as not to place the safety-conscious employer at a competitive 
    disadvantage.'' 15 O.S.H. Cas. (BNA) at 1565. Thus, Commissioner Van 
    Namee's view that it is irrelevant under the Act whether employers or 
    employees pay for protective devices finds no support in the statute 
    and has been rejected by subsequent court and Commission case law.
        b. Neither the language of section 1910.132(b), nor the use of the 
    passive voice in section 1910.132(a) poses interpretive difficulties. 
    The view of Commissioner Van Namee that section 1910.132(a) cannot be 
    interpreted to require employers to ``provide'' personal protective 
    equipment because section 1910.132(b) contemplates the use of employee-
    owned equipment, is similarly unsupported. If Commissioner Van Namee 
    were correct that reading section 1910.132(a) to require employers to 
    provide protective equipment would render section 1910.132(b) 
    superfluous, it could only be because section 1910.132(b) itself 
    imposes some duty upon employees to provide their own protective 
    equipment. See 1 O.S.H. Cas. (BNA) at 1550. However, section 
    1910.132(b), by its terms, does not require employees to ``provide'' 
    anything. As Commissioner Cleary correctly noted, section 1910.132(b)'s 
    introductory phrase ``where employees provide their own protective 
    equipment . . .'' is to be read, not as imposing a duty upon employees 
    to furnish equipment, but rather, as recognizing that employees may 
    sometimes wish to use their own equipment. See 1 O.S.H. Cas. (BNA) at 
    1552. Such use might occur, for example, if employee-owned equipment is 
    more comfortable or provides a greater degree of protection than would 
    be afforded by employer-provided equipment.19 Thus read, in 
    accordance with its terms, section 1910.132(b) poses no conflict with a 
    reading of section 1910.132(a) that requires employers to provide 
    personal protective equipment.
    ---------------------------------------------------------------------------
    
        \19\ As Deputy Assistant Secretary Stanley noted in his 1994 
    memorandum, section 1910.132(b) permits employees to use their own 
    equipment in some circumstances but does not specify that practice 
    as the norm. ``[I]nstead, the standard underscores the employer's 
    obligation to assure that such equipment is adequate and that it is 
    properly maintained.''
    ---------------------------------------------------------------------------
    
        This result not only follows from the plain language of the 
    standard: it is also compelled by case law, decided subsequent to Budd, 
    rejecting the premise that the OSH Act imposes enforceable duties upon 
    employees. In Atlantic Gulf & Stevedores, the Third Circuit expressly 
    rejected Commissioner Van Namee's position, stated in his concurring 
    opinion in that case, that the Act imposes enforceable compliance 
    responsibilities upon employees. The court found that the ``detailed 
    scheme of enforcement set out in sections 9, 10 and 17 of the Act . . . 
    is directed only against employers.'' 534 F.2d at 553. The court also 
    found section 5(b) of the Act, upon which Commissioner Van Namee relied 
    as a basis for his view, to be ``essentially devoid of content.'' Id.
        In USWA, the D.C. Circuit similarly concluded that the Act imposes 
    compliance obligations exclusively upon employers. It found, based on 
    the legislative history, that section 5(b) ``is essentially an 
    exhortation to employees to cooperate in standards and is not meant to 
    diminish in any way the employer's compliance responsibilities or his 
    responsibility to assure compliance by his own employees.'' 647 F.2d at 
    1231 (quoting legislative history). This case law necessarily precludes 
    any reading of section 1910.132(b) that would impose a duty upon 
    employees to provide protective equipment.
        Considered in the statutory context of exclusive employer 
    responsibilities, section 1910.132(a)'s language stating that personal 
    protective equipment ``shall be provided'' is equivalent to a direction 
    that ``employers shall provide'' the equipment. Though the paragraph 
    itself lacks precision, the Act leaves no room for doubt about which 
    actor--the employer or the employee--is to do the providing. Moreover, 
    the standard, considered in its entirety, provides further assurance 
    that employers are to provide protective equipment. Section 
    1910.132(d)(i)-(iii) requires employers to perform a hazard assessment 
    of their workplaces and to ``select and have each employee use'' 
    appropriate personal protective equipment. ``Selection'' and 
    ``provision'' are closely related functions that should logically be 
    performed by the same actor. It would be an anomalous reading that 
    required the employer to ``select'' items of PPE suitable for each of 
    its employees, yet required employees to ``provide'' such equipment. 
    All of these reasons compel rejection of Commissioner Van Namee's 
    position in favor of the Secretary's construction, accepted by 
    Commissioner Cleary, that the standard requires employers to provide 
    and pay for personal protective equipment when necessary to employee 
    safety.20
    ---------------------------------------------------------------------------
    
        \20\  Section 1910.132(a)'s general requirement that personal 
    protective equipment ``shall be provided, used and maintained . . . 
    .'' is given additional specificity by the other standards in 
    Subpart I, Personal Protective Equipment. These standards make clear 
    that the duties listed in section 1910.132(a) fall upon employers. 
    See, e.g., section 1910.133(a) (``The employer shall ensure that 
    each employee uses appropriate eye or face protection . . .''); 
    section 1910.134 (a)(2) (``Respirators shall be provided by the 
    employer when such equipment is necessary to protect the health of 
    the employee''). The active and passive voices are used 
    interchangeably in the standards comprising Subpart I.
    ---------------------------------------------------------------------------
    
        c. The standard may be interpreted to require employer payment in 
    the absence of explicit cost-allocation language. Finally, the position 
    of Commissioner Cleary--that if the standard does not explicitly 
    allocate the costs of personal protective equipment, the Commission 
    cannot require employers to pay--must be rejected. Unquestionably, the 
    Secretary possesses the power authoritatively to interpret ambiguous 
    OSHA standards in an administrative adjudication before the Commission. 
    Martin v. OSHRC (CF& I
    
    [[Page 15440]]
    
    Steel Corp.), 499 U.S. at 144, 151 (1991). The Secretary's 
    interpretation may, as in Budd, be embodied initially in a citation, 
    ``a form expressly provided for by Congress.'' Id. at 157. It may also 
    be disseminated by other means, including interpretive rules and 
    enforcement guidelines. Id.
        The Commission has held that the Secretary properly exercised her 
    delegated interpretive authority to construe the word ``provide'' to 
    mean ``pay for.'' Erie Coke Corp. 15 O.S.H. Cas. (BNA) at 1563 
    (affirming Secretary's interpretation of coke oven emissions standard 
    to require employers to pay for flame resistant gloves). Therefore, the 
    Commission's authority is not limited to enforcement of explicit 
    regulatory requirements, as Commissioner Cleary supposed.
    
    Summary and Conclusion
    
        The uniform interpretation of section 1910.132 announced in STD 1-
    6.6 is consistent with the standard's language and purpose, as well as 
    with the statute's clear design to place fiscal responsibility for 
    achievement of workplace safety on employers. The interpretation is 
    also consistent with Federal appellate decisions recognizing the 
    Secretary's statutory authority to charge employers with the cost of 
    regulatory requirements and with the Commission's precedent in Erie 
    Coke Corp. Finally, the interpretation is consistent with the result in 
    Budd that employers need not pay for safety shoes. To the extent that 
    the concurring rationales offered by Commissioners Van Namee and Cleary 
    in Budd address payment for other types of personal protective 
    equipment, the foregoing discussion demonstrates that the positions 
    taken by these Commissioners are contrary to case law decided since 
    Budd and to now-settled principles of regulatory construction.
        The fact that some agency letters issued prior to Deputy Assistant 
    Secretary Stanley's memorandum suggest agency acquiescence in the 
    Commissioners' concurring opinions in Budd, does not render invalid the 
    Secretary's interpretation here. These letters must be considered in 
    the context of OSHA's overall approach to the payment issue in 
    rulemaking under section 6(b) of the Act, and the Agency's 1990 
    interpretive memorandum and citation under section 1910.132(a). In this 
    context, the letters reflected divergent positions within the Agency 
    concerning the employer's duty to pay for personal protective 
    equipment, rather than a settled agency interpretation. Significantly, 
    when these letters were sent out, OSHA had not developed an 
    authoritative, nationwide position on the allocation of such costs, Cf. 
    Drummond Coal Co. v. Hodel, 796 F.2d 503, 508 (D.C. Cir. 1986) 
    (regulatory interpretation given by some agency personnel in Alabama 
    and relied upon by some Alabama companies for four years did not amount 
    to a national policy which the Agency could not change without reasoned 
    explanation). See also Martin, 144 U.S. at 157 (interpretive rules and 
    agency enforcement guidelines contained in Field Operations Manual may 
    be consulted by reviewing courts to determine consistency of 
    interpretation advanced in enforcement litigation). In fact, OSHA did 
    not develop such a position until the field directive (STD 1-6.6) in 
    1994.
        Furthermore, the inconsistent statements prior to 1994 resulted, in 
    substantial part, from the erroneous positions stated in the separate 
    concurring opinions in Budd: that section 1910.132(a) either imposes no 
    duty upon employers to provide personal protective equipment, or cannot 
    be interpreted to require employers to pay for such equipment absent 
    explicit cost allocation language.
        The Supreme Court has observed that:
    
    The Secretary is not estopped from changing a view she believes to 
    have been grounded upon a mistaken legal interpretation. Indeed, an 
    administrative agency is not disqualified from changing its mind; 
    and when it does, the courts still sit in review of the 
    administrative decision and should not approach the statutory 
    construction issue de novo and without regard to the administrative 
    understanding of the statutes.
    
    Good Samaritan Hospital v. Shalala, 508 U.S. 402, 418 (1993). And in 
    the circumstances presented here, ``where the Agency's interpretation 
    of [its regulation] is at least as plausible as competing ones, there 
    is little, if any, reason not to defer to its construction.'' Id. The 
    interpretation in STD 1-6.6 is reasonable, even if it is not the only 
    permissible reading of the standard.
    
    X. List of Subjects in 29 CFR Parts 1910, 1915, 1917, 1918, and 
    1926
    
        Construction industry; Eye and face protection; Foot protection; 
    General industry; Hand protection; Head protection; Longshoring 
    operations; Marine terminals; Occupational safety and health; Personal 
    protective equipment; Protective equipment; Safety glasses; Safety 
    shoes; Shipyard industry.
    
    XI. Authority
    
        This document was prepared under the authority of Charles N. 
    Jeffress, 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), section 107 of 
    the Construction Work Hours and Safety Standards Act (Construction 
    Safety Act) (40 U.S.C. 333), section 41 of the Longshore and Harbor 
    Workers Compensation Act (33 U.S.C. 941), Secretary of Labor's Order 
    No. 6-96 (62 FR 111), and 29 CFR part 1911, it is hereby proposed to 
    amend 29 CFR parts 1910, 1915, 1917, 1918, and 1926 as set forth below.
    
        Signed at Washington, D.C., this 18th day of March, 1999.
    Charles N. Jeffress,
    Assistant Secretary of Labor.
    
    XII. Proposed Standards
    
    General Industry
    
    PART 1910--[AMENDED]
    
        29 CFR part 1910 is proposed to be amended as follows:
        1. The authority citation for subpart I of 29 CFR part 1910 would 
    be revised to read as follows:
    
        Authority: Sections 4, 6, and 8 of the Occupational Safety and 
    Health Act of 1970 (29 U.S.C. 653,655,657); Secretary of Labor's 
    Order No. 12-71 (36 FR 8754), No. 8-76 (41 FR 25059) No. 9-83 (48 FR 
    35736), No. 1-90 (55 FR 9033) and No. 6-96 (62 FR 111) as 
    applicable, and 29 CFR Part 1911.
    
        2. A new paragraph (h) would be added to Sec. 1910.132, to read as 
    follows:
    
    
    Sec. 1910.132  General requirements.
    
    * * * * *
        (h) Payment for protective equipment. All protective equipment, 
    including personal protective equipment (PPE), required in this part, 
    shall be provided by the employer at no cost to employees. Exception: 
    The employer is not required to pay for the logging boots required by 
    29 CFR Sec. 1910.266(d)(1)(v). The employer is also not required to pay 
    for safety-toe protective footwear, or for prescription safety eyewear, 
    provided that all three of the following conditions are met:
        (1) The employer permits such footwear or eyewear to be worn off 
    the job-site;
        (2) The footwear or eyewear is not used at work in a manner that 
    renders it unsafe for use off the job-site (for example, contaminated 
    safety-toe footwear would not be permitted to be worn off a job-site); 
    and
        (3) Such footwear or eyewear is not designed for special use on the 
    job.
    
    [[Page 15441]]
    
    Shipyards
    
    PART 1915--[AMENDED]
    
        29 CFR Part 1915 is proposed to be amended as follows:
        1. The Authority citation for Subpart I of 29 CFR Part 1915 would 
    be revised to read as follows:
    
        Authority: Secs. 4, 6, and 8, Occupational Safety and Health Act 
    of 1970 (29 U.S.C. 653, 655, 657); section 41, Longshore and Harbor 
    Workers' Compensation Act (33 U.S.C. 941), Secretary of Labor's 
    Order No. 8-76 (41 FR 25059), No. 9-83 (48 FR 35756), No. 1-90 (55 
    FR 9033) and No. 6-96 (62 FR 111) as applicable; and 29 CFR part 
    1911.
    
        2. A new paragraph (f) would be added to Sec. 1915.152, to read as 
    follows:
    
    
    Sec. 1915.152  General Requirements.
    
    * * * * *
        (f) Payment for protective equipment. All protective equipment, 
    including personal protective equipment (PPE), required in this part, 
    shall be provided by the employer at no cost to employees.
        Exception: The employer is not required to pay for safety-toe 
    protective footwear, or for prescription safety eyewear, provided that 
    all three of the following conditions are met:
        (1) The employer permits such footwear or eyewear to be worn off 
    the job-site;
        (2) The footwear or eyewear is not used at work in a manner that 
    renders it unsafe for use off the job-site (for example, contaminated 
    safety-toe footwear would not be permitted to be worn off a job-site); 
    and
        (3) Such footwear or eyewear is not designed for special use on the 
    job.
    
    Marine Terminals
    
    PART 1917--[AMENDED]
    
        29 CFR Part 1917 is proposed to be amended as follows:
        1. The authority citation for Subpart E of 29 CFR part 1917 would 
    continue to read as follows:
    
        Authority: Sec. 41, Longshore and Harbor Workers' Compensation 
    Act (33 U.S.C. 941); Secs. 4, 6, and 8 of the 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 6-96 (62 FR 111), as applicable; and 29 CFR part 1911. 
    Section 1917.28 also issued under 5 U.S.C. 553.
    
        2. A new Sec. 1917.96 would be added to supbart E, to read as 
    follows:
    
    
    Sec. 1917.96  Payment for protective equipment.
    
        All protective equipment, including personal protective equipment 
    (PPE), required in this part, shall be provided by the employer at no 
    cost to employees. Exception: The employer is not required to pay for 
    safety-toe protective footwear, or for prescription safety eyewear, 
    provided that all three of the following conditions are met:
        (a) The employer permits such footwear or eyewear to be worn off 
    the job-site;
        (b) The footwear or eyewear is not used at work in a manner that 
    renders it unsafe for use off the job-site (for example, contaminated 
    safety-toe footwear would not be permitted to be worn off a job-site); 
    and
        (c) Such footwear or eyewear is not designed for special use on the 
    job.
    
    Longshoring
    
    PART 1918--[AMENDED]
    
        29 CFR part 1918 is proposed to be amended as follows:
        1. The authority citation for 29 CFR part 1918 would be revised to 
    read as follows:
    
        Authority: Secs. 4, 6, and 8 of the Occupational Safety and 
    Health Act, 29 U.S.C. 653, 655, 657; Walsh-Healey Act, 41 U.S.C. 35 
    et seq.; Service Contract Act of 1965, 41 U.S.C. 351 et seq.; Sec. 
    107, Contract Work Hours and Safety Standards Act (Construction 
    Safety Act), 40 U.S.C. 333; Sec. 41, Longshore and Harbor Workers' 
    Compensation Act, 33 U.S.C. 941; National Foundation of Arts and 
    Humanities Act, 20 U.S.C. 951 et seq.; Secretary of Labor's Order 
    No. 6-96 (62 FR 111) and 29 CFR part 1911.
    
        2. A new Sec. 1918.106 would be added, to read as follows:
    
    
    Sec. 1918.106  Payment for protective equipment.
    
        All protective equipment, including personal protective equipment 
    (PPE), required in this part, shall be provided by the employer at no 
    cost to employees. Exception: The employer is not required to pay for 
    safety-toe protective footwear, or for prescription safety eyewear, 
    provided that all three of the following conditions are met:
        (a) The employer permits such footwear or eyewear to be worn off 
    the job-site;
        (b) The footwear or eyewear is not used at work in a manner that 
    renders it unsafe for use off the job-site (for example, contaminated 
    safety-toe footwear would not be permitted to be worn off a job-site); 
    and
        (c) Such footwear or eyewear is not designed for special use on the 
    job.
    
    Construction
    
    PART 1926--[AMENDED]
    
        29 CFR part 1926 is proposed to be amended as follows:
        1. The authority citation for subpart E of part 1926 would be 
    revised to read as follows:
    
        Authority: Sec. 107, Contract Work Hours and Safety Standards 
    Act (Construction Safety Act) (40 U.S.C. 333); Secs. 4, 6, and 8 of 
    the 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), 1-90 (55 FR 9033), or 6-96 (62 FR 111), 
    as applicable; and 29 CFR part 1911.
    
        2. A new paragraph (d) would be added to Sec. 1926.95, to read as 
    follows:
    
    
    Sec. 1926.95  Criteria for personal protective equipment.
    
    * * * * *
        (d) Payment for Protective Equipment. All protective equipment, 
    including personal protective equipment (PPE), required in this part, 
    shall be provided by the employer at no cost to employees. Exception: 
    The employer is not required to pay for safety-toe protective footwear, 
    or for prescription safety eyewear, provided that all three of the 
    following conditions are met:
        (1) The employer permits such footwear or eyewear to be worn off 
    the job-site;
        (2) The footwear or eyewear is not used at work in a manner that 
    renders it unsafe for use off the job-site (for example, contaminated 
    safety-toe footwear would not be permitted to be worn off a job-site); 
    and
        (3) Such footwear or eyewear is not designed for special use on the 
    job.
    
    [FR Doc. 99-7114 Filed 3-30-99; 8:45 am]
    BILLING CODE 4510-26-P
    
    
    

Document Information

Published:
03/31/1999
Department:
Occupational Safety and Health Administration
Entry Type:
Proposed Rule
Action:
Proposed rule; scheduling of informal public hearing.
Document Number:
99-7114
Dates:
Comments. Written comments on the proposed standard must be postmarked by June 14, 1999. Comments that are transmitted electronically through OSHA's internet site must be transmitted by June 14, 1999. The hearing is scheduled to begin at 9:30 a.m. on June 22, 1999.
Pages:
15402-15441 (40 pages)
Docket Numbers:
Docket S-042
PDF File:
99-7114.pdf
CFR: (198)
29 CFR 1910.132(a)
29 CFR 1910.133(a)(1)
29 CFR 1915.32(a)(3)
29 CFR 1915.33(a)
29 CFR 1915.34(a)(1)
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