15402 Federal Register /Vol. 64, No. 61/Wednesday, March ... · 15402 Federal Register/Vol. 64, No. 61/Wednesday, March 31, 1999/Proposed Rules ... discussion for some safety standards

15402 Federal Register / Vol. 64, No. 61 / Wednesday, March 31, 1999 / Proposed Rules

DEPARTMENT OF LABOR

Occupational Safety and HealthAdministration

29 CFR Parts 1910, 1915, 1917, 1918,and 1926

[Docket S–042]

[RIN No. 1218-AB77]

Employer Payment For PersonalProtective Equipment

AGENCY: Occupational Safety and HealthAdministration (OSHA), U.S.Department of Labor.ACTION: Proposed rule; scheduling ofinformal public hearing.

SUMMARY: Many Occupational Safetyand Health Administration (OSHA)health, safety, maritime, andconstruction standards requireemployers to provide their employeeswith protective equipment, includingpersonal protective equipment (PPE),when such equipment is necessary toprotect employees from job-relatedinjuries, illnesses, and fatalities.

These requirements are codified inPart 1910 (General Industry standards),Part 1915 (Shipyard standards), Part1926 (Construction standards), Part1917 (Marine Terminal standards), andPart 1918 (Longshoring standards) ofTitle 29 of the Code of FederalRegulations. These requirementsaddress PPE of many kinds: hard hats,gloves, goggles, safety shoes, safetyglasses, welding helmets and goggles,faceshields, chemical protectiveequipment and clothing, fall protectionequipment, and so forth. The provisionsin OSHA standards that require PPEgenerally state that the employer is toprovide such PPE; however, some ofthese provisions do not specify that theemployer is to provide such PPE at nocost to the employee.

In this rulemaking, OSHA isproposing regulatory language to clarifythat, with only a few exceptions forspecific types of PPE, the employermust pay for the PPE provided. OSHAis proposing to except in certaincircumstances three specific kinds ofPPE from this requirement: safety-toeprotective footwear, prescription safetyeyewear, and the logging boots requiredby 29 CFR 1910.266(d)(1)(v).

OSHA believes that the proposed rulewill better implement the intent of theOccupational Safety and Health Act,make clear who is to pay for what kindof PPE, and improve protection toemployees who must wear PPE.

The proposed rule would not requireemployers to provide PPE where none

has been required before. Instead, theproposed rule merely stipulates that theemployer must pay for all required PPE,except in the limited cases specifiedabove. Since employers already pay formost of the required PPE, the proposedrule would shift to employers only thecost of that portion of PPE currentlybeing paid for by their employees. Basedon information from a number ofsurveys, studies, and a panel of PPEexperts, OSHA believes that, evenmaking worst case assumptions, thisshift in costs from employees toemployers will impose annualized costsof no more than $61.9 million across allaffected industries. To the extent thatthe proposed rule enhances the use ofPPE, employers will obtain about athree-fold return on their investment inPPE, i.e., will save an estimated threedollars in injury and illness costs forevery dollar they invest in PPE.

OSHA is also scheduling an informalpublic hearing to provide interestedparties the opportunity to orally presentinformation and data related to theproposed rule.DATES: Comments. Written commentson the proposed standard must bepostmarked by June 14, 1999.Comments that are transmittedelectronically through OSHA’s internetsite must be transmitted by June 14,1999. The hearing is scheduled to beginat 9:30 a.m. on June 22, 1999.

Informal public hearing. Notices ofintention to appear at the informalpublic hearing must be postmarked byJune 1, 1999. Hearing participantsrequesting more than 10 minutes fortheir presentations, and participantswho will submit documentary evidenceat the hearing, must submit the full textof their testimony and all documentaryevidence to the Docket Office,postmarked no later than June 14, 1999.ADDRESSES: Comments. Submit fourcopies of written comments, notices ofintention to appear at the informalpublic hearing, testimony, anddocumentary evidence to the OSHADocket Office, Docket S–042, Room N–2625, U.S. Department of Labor, 200Constitution Ave., NW, Washington, DC20210. (Telephone: (202)693–2350)Please identify the document at the topof the first page as either a comment,notice of intention to appear, testimony,or documentary evidence. Comments of10 pages or less may be faxed to theDocket Office, if followed by hard copypostmarked within two days. The OSHADocket Office fax number is (202)693–1648.

Comments may also be submittedelectronically through OSHA’s Internetsite at URL, http://www.osha-slc.gov/e-

comments/e-comments-ppe.html. Pleasebe aware that information such asstudies, journal articles, and so forthcannot be attached to the electronicresponse and must be submitted inquadruplicate to the above address.Such attachments must clearly identifythe respondent’s electronic submissionby name, date, and subject, so that theycan be attached to the correct response.

Informal public hearing. The hearingwill be held in the auditorium of theU.S. Department of Labor (FrancesPerkins Building), 200 ConstitutionAvenue N.W., Washington, D.C.FOR FURTHER INFORMATION CONTACT: Ms.Bonnie Friedman, OSHA Office ofInformation and Consumer Affairs,Room N–3647, U.S. Department ofLabor, 200 Constitution Avenue, NW,Washington, DC 20210. Telephone:(202) 693–1999.SUPPLEMENTARY INFORMATION:

I. Table of ContentsThe preamble and proposed standard

are organized into twelve sections asfollows:I. Table of ContentsII. BackgroundIII. Legal ConsiderationsIV. Summary and Explanation of the

Proposed RuleA. IntroductionB. Reasons Why the Agency Believes that

Employers Must Pay for PPEC. Scope of the Proposed RulemakingD. Current OSHA Requirements

Concerning Payment for PPEE. Advisory Committee on Construction

Safety and HealthF. Explanation of Proposed Requirement

V. Issues Pertaining to the Proposed RuleVI. Preliminary Economic AnalysisVII. Public ParticipationVIII. State-plan StatesIX. OSHA’s Supplementary Statement of

Reasons For Its Interpretation of 29 CFR1910.132(a)

X. List of Subjects in 29 CFR parts 1910,1915, 1917, 1918, and 1926

XI. Authority and SignatureXII. Proposed Standards

II. BackgroundEmployees often need to wear

protective equipment, includingpersonal protective equipment (PPE), tobe protected from injury, illness, anddeath caused by exposure to workplacehazards. Throughout this documentOSHA uses the abbreviation PPE tocover all types of protective equipment,including personal protectiveequipment, because the abbreviation iswidely used and understood to includeall such equipment. The abbreviationPPE includes protective equipment thatan employee uses or wears, such as fallarrest systems, safety shoes, andprotective gloves. There are many

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15403Federal Register / Vol. 64, No. 61 / Wednesday, March 31, 1999 / Proposed Rules

situations in which PPE is necessary toprotect employees from hazards. Forexample, protective gloves can protecthands from lacerations, burns,absorption of toxic chemicals, andabrasion. Safety shoes protect anemployee’s feet from being crushed byfalling objects. Respirators can protectemployees from being over-exposed totoxic substances. There are many otherexamples.

Many OSHA standards requireemployers to provide PPE to theiremployees. Some indicate in generalterms when PPE is to be worn, and whatis to be worn (see, for example,§ 1910.132). Other provisions are veryspecific, such as 29 CFR1910.266(d)(1)(iv), which requires chainsaw operators to wear protectiveleggings during specific operations, and29 CFR 1910.1027(g), which requiresrespiratory protection for workersexposed to cadmium above a certainPEL, and explicitly states that theemployer must pay for the respirator.

OSHA derived its PPE standards frommany sources. In its first two years,OSHA, pursuant to section 6(a) of theOSH Act, adopted many Federal andnational consensus standards dealingwith PPE that had been written by manydifferent standards developmentcommittees. OSHA itself has beenissuing both health and safety standardsrequiring appropriate PPE for 28 years.Because of the many sources for thesestandards, the language requiring theuse of PPE has varied.

The language used in OSHA’s PPEstandards has generally been clear thatthe employer must provide the PPE andensure that employees wear it. However,the regulatory language regarding theemployer’s obligation to pay for the PPEhas varied.

OSHA’s health standards issued after1977 have made it clear both in theregulatory text and in the preamble thatthe employer is responsible forproviding necessary PPE at no cost tothe employee. See, for example, OSHA’sinorganic arsenic standard issued in1978 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 preamblediscussion for some safety standardshave also been absolutely clear that theemployer must both provide and pay forPPE. See, for example, the loggingstandard at 29 CFR 1910.266(d)(1)(iii)and (iv). The logging standard does,however, make an exception for certaintypes of logging boots (see 29 CFR1910.266(d)(1)(v)). In the case of footprotection, such as logging boots,paragraph (d)(l)(v) of that standardleaves the issue of who pays for some

kinds of logging boots open fornegotiation and agreement between theemployer and employee.

On the other hand, the regulatory textof some safety standards has been lessclear. For example, 29 CFR 1910.132(a)is the general provision requiringemployers to provide PPE whennecessary to protect employees. Thisprovision states that the PPE must beprovided, used, and maintained in asanitary and reliable condition. It doesnot specifically state that the employermust pay for it. In some cases,employers have interpreted thisrequirement to mean that they must payfor as well as provide the PPE, while inother cases, employers have understoodthis requirement to mean only that theymust provide the PPE.

OSHA attempted to establish a policyand clarify the issue of payment forrequired PPE in a memorandum to itsfield staff dated October 18, 1994,‘‘Employer Obligation to Pay forPersonal Protective Equipment.’’ OSHAstated that for all PPE standards theemployer must both provide, and payfor, the required PPE, except in limitedsituations. The memorandum indicatedthat where PPE is very personal innature and usable by the worker off thejob, such as is often the case with steel-toe safety shoes (but not metatarsal footprotection), the issue of payment may beleft to labor-management negotiations.This memorandum was intended toclarify the Agency’s policy with regardto payment for required PPE.

Very recently, the OccupationalSafety and Health Review Commissiondeclined to accept as Agency policy theinterpretation embodied in the 1994memorandum as it applied to§ 1910.132(a), OSHA’s general PPEstandard for general industry, inSecretary of Labor v. Union Tank Car,OSHRC Docket No. 96–0563. In thatcase, an employer was issued a citationfor failing to pay for metatarsal footprotection and welding gloves. TheCommission vacated the citation,finding that the Secretary had failed toadequately explain the policy outlinedin the 1994 memorandum in light ofseveral earlier letters of interpretationfrom OSHA that were inconsistent withthat policy.

OSHA believes that it is importantthat the employer both provide and payfor PPE and ensure that employees wearit when necessary. OSHA believes thatthis view reflects the direction of theOSH Act and is consistent with thelegislative history. Employers mustmaintain a safe place of work in all itsaspects, and may not receive acompetitive advantage by failing to payfor necessary safety equipment,

including personal protectiveequipment. OSHA has considered therequirement for employer payment inmany specific rulemakings and hasconcluded, based on the record in eachcase, that this requirement will increaseemployee protection.

The present proposal will also lead togreater consistency among OSHAstandards. Accordingly, OSHA isproposing to require that the employerpay for all PPE required by OSHAstandards, except for safety-toeprotective footwear and prescriptionsafety eyewear that meet all three of thefollowing conditions: (1) the employerpermits such footwear or eyewear to beworn off the job-site; (2) the footwear oreyewear is not used at work in a mannerthat renders it unsafe for use off the job-site; and (3) such footwear or eyewearis not designed for special use on thejob. Employers are not required to payfor the logging boots specified in 29 CFR1910.266(d)(1)(v), as discussed above.

OSHA believes that the proposedrequirement will better protectemployees from work-related illness,injury, and death. Employers are in abetter position to identify and select thecorrect equipment and to maintain itproperly. They have the financialresources to purchase PPE of necessaryquality and to pay for replacements asnecessary. The statutory reasons forrequiring the employer to pay for PPEare discussed at greater length in theLegal Considerations section of thispreamble, and the health and safetyreasons are discussed below, in theSummary and Explanation section ofthis preamble.

OSHA preliminarily concludes, forthe reasons stated, that the Agency’sstandards should clearly require theemployer to provide and pay for PPE.Accordingly, OSHA is proposing such arequirement. Rulemaking under section6(b) of the Act will provide for fullpublic input on all issues. The standardwill, once promulgated, provide cleardirection to employers and employees.

OSHA is proposing this requirementfor general industry, construction,shipyards, longshoring, and marineterminals. OSHA has consulted theAdvisory Committee for ConstructionSafety and Health on this proposal, asrequired by the Construction Safety Act.

OSHA requests comments on allrelevant issues, including the specificissues listed in the Issues section of thispreamble.



III. Legal Considerations

A. General Authority Under the OSHAct

The Occupational Safety and HealthAct and the statute’s legislative historydemonstrate that employers areexpected to pay the costs of complyingwith OSHA’s safety and healthstandards. At section 2(a) of the OSHAct, Congress announced itsdetermination that occupational injuryand illness should be eliminated asmuch as possible: ‘‘The Congress findsthat occupational injury and illnessarising out of work situations impose asubstantial burden upon, and are ahindrance to, interstate commerce interms of lost production, wage loss,medical expenses, and disabilitycompensation payments.’’ 29 U.S.C.651(a). Congress therefore declared ‘‘itto be its purpose and policy . . . toassure so far as possible every workingman and woman in the Nation safe andhealthful working conditions.’’ 29U.S.C. 651(b).

To achieve this end, the Act directsthat ‘‘employers shall comply withoccupational safety and healthstandards . . . issued pursuant to thisAct,’’ 29 U.S.C. 654(a) (2), and limitsOSHA’s enforcement authority toemployers. 29 U.S.C. 658, 659(a). SeeUnited Steelworkers of America v.Marshall, 647 F.2d 1189, 1230-1231(D.C. Cir. 1980). This statutory schemeallocates to employers sole legalresponsibility for achieving compliancewith safety and health standards.Atlantic & Gulf Stevedores v. OSHRC,534 F.2d 541, 533 (3d Cir. 1976).Because employers are charged with theresponsibility for achieving safe andhealthful workplaces, they must bearthe concomitant financial obligation. Id.The Act’s terms, including thedefinition in section 3(8) of anoccupational safety and health standardas one which ‘‘requires . . . theadoption or use of one or morepractices, means, methods, operations,or processes, reasonably necessary orappropriate to provide safe or healthfulplaces of employment,’’ 29 U.S.C.652(8), give OSHA broad discretion todevise means to achieve safe andhealthful workplaces and to chargeemployers for the costs of reasonablynecessary requirements. UnitedSteelworkers, 647 F.2d at 1230–1231.

The employer’s general financialresponsibility is further evidenced inthe Act’s legislative history in theCotton Dust decision (American TextileMfrs. Inst., Inc. v. Donovan, 452 U.S.490, 519–521(1980)), the Supreme Courtinterpreted the legislative history asshowing that Congress was aware of the

Act’s potential to impose substantialcosts on employers but believed suchcosts to be appropriate when necessaryto create a safe and healthful workingenvironment. Congress thus viewed thecosts of health and safety as a cost ofdoing business. Senator Yarborough, aco-sponsor of the [Act], stated:We know the costs would be put intoconsumer goods but that is the price weshould pay for the 80 million workers inAmerica . . .

Senator Eagleton commented that:[the costs that will be incurred by employersin meeting the standards of health and safetyto be established under this bill are, in myview, reasonable and necessary costs of doingbusiness.

Other Members of Congress voicedsimilar views (American Textile Mfrs.Inst., Inc. v. Donovan, 452 U.S. 490,519–521 (1980) (ATMI) (internalcitations omitted, original emphasis)).See also Forging Indus, Ass’n v.Secretary of Labor, 773 F.2d 1436, 1451(4th Cir. 1985) (en banc) (which statedthat, in view of the Supreme Court’s‘‘clear statement’’ in ATMI aboutCongress’ intent that employers bear thecosts of safety and health, OSHA maylogically require employers to pay forhearing protectors under the hearingconservation standard); S. Rep. No. 91–1282, 91st Cong. 2d Sess. 4 (1970),reprinted in, Senate Comm. On Laborand Public Welfare, 92nd Cong. 1stSess., Legislative History of theOccupational Safety and Health Act of1970 (Legislative History) 324, 510–511,854, 1150, 1188, 1201.

Congress was also concerned that thecosts imposed by OSHA rules be bornefairly by employers within and acrossall affected industries and believed thatuniform enforcement was crucial toreduce or eliminate the disadvantagethat a conscientious employer mightexperience where inter-industry orintra-industry competition is present.Legislative History at 854; ATMI, 452U.S. at 521. It also recognized that manysmall firms might not be able to makethe necessary investment in safety andhealth unless all firms were required todo so. Legislative History at 144. Forthese reasons, Congress did not intendto allow individual employers to decidewho should pay the costs of complyingwith OSHA standards. See UnitedSteelworkers, 647 F.2d at 1236; ForgingIndus. Ass’n, 773 F.2d at 1451–1452.

B. Other Statutory ConsiderationsIn Industrial Union Department, AFL-

CIO v. American Petroleum Institute,448 U.S. 607 (1980) (Benzene), theSupreme Court ruled that, before OSHAcan issue a new standard, the Agency

must find that the hazard beingregulated poses a significant risk toworkers and that a new, moreprotective, standard is ‘‘reasonablynecessary and appropriate’’ to reducethat risk. The requirement to find asignificant risk does not mean, however,that OSHA must ‘‘wait for deaths tooccur before taking any action,’’ id. at655, or ‘‘support its findings withanything approaching scientificcertainty.’’ Id. at 656. ‘‘[T]herequirement that a ‘significant’ risk beidentified is not a mathematicalstraightjacket.’’ Id. at 655.

The Act allows OSHA substantiallatitude to devise means to reduce oreliminate significant workplace hazards.Clearly, OSHA need not makeindividual quantitative or qualitativerisk findings for every regulatoryrequirement in a standard. Once OSHAhas determined that a significant risk ofmaterial impairment of health or wellbeing is present, and will be redressedby a standard, the Agency is free todevelop specific requirements that arereasonably related to the Act’s andstandard’s remedial purpose. OSHAstandards are often designed to reducerisk through an integrated system ofsafety practices, engineering controls,employee training, and other ancillaryrequirements. Courts have upheldindividual requirements based onevidence that they increase thestandard’s effectiveness in reducing therisk posed by significant workplacehazards. See Forging Indus. Ass’n., 773F.2d at 1447–1452 (finding ancillaryprovisions of hearing conservationstandard, including requirements foraudiometric testing, monitoring, andemployer payment for hearingprotectors, reasonably related to thestandard’s purpose of achieving a safework environment); UnitedSteelworkers, 647 F.2d at 1237–1238(finding lead standard’s medicalremoval protection (MRP) provisionsreasonable).

Similarly, the courts have held thatthe Agency must consider otherancillary provisions that could provideadditional protection if the standard’sexposure limits will not eliminatesignificant risk. Building and Constr.Trades Dept. AFL–CIO v. Brock, 838F.2d 1258, 1271 (D.C. Cir. 1988).(Remand to consider including inasbestos standard additional provisionsto reduce smoking-related asbestosrisks); National Grain & Feed Ass’n v.OSHA, 866 F.2d 717, 734–735 (5th Cir.1989) (directing OSHA to considerextending the action level for clean-upmeasures from certain priority areas tothe entire facility where such an



1 See 29 CFR 1910.95(i)(1), (i)(3) (hearingconservation); 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); 29CFR 1910.1045(h)(2)(i), (j)(1) (acrylonitrile); 29 CFR1910.1047(g)(2)(i), (g)(4) (ethylene oxide); 29 CFR1910.1048(g)(1), (h) (formaldehyde); 29 CFR1910.1050(h)(2)(i), (i)(1) (4,4, methylenedianiline);29 CFR 1910.1051(h)(1), (i) (1,3-butadiene); 29 CFR1910.1052 (g)(1), (h)(1) (methylene chloride); 29CFR 1910.146(d)(4)(iv) (confined spaces); 29 CFR1910.156(e)(1)(i) (fire brigades); 29 CFR1910.266(d)(1)(iii), (d)(1)(iv), (d)(1)(vi),(d)(1)(vii)(logging). See also OSHA’s recently revisedrespiratory protection standard, promulgatedJanuary 8, 1998, 63 FR 1271.

extension might further reduce the riskof fire and explosions).

OSHA standards must also betechnologically and economicallyfeasible, and cost effective. A standardis technologically feasible if theprotective measures it requires alreadyexist, can be brought into existence withavailable technology, or can be createdwith technology that can reasonably beexpected to be developed. ATMI, 452U.S. at 513. A standard is economicallyfeasible if industry can absorb or passon the cost of compliance withoutthreatening its long term profitability orcompetitive structure. ATMI, 452 U.S. at530 n.55.

A standard is cost effective if theprotective measures it requires are theleast costly of the available alternativesthat achieve the same level ofprotection. ATMI, 452 U.S. at 514 n.32;International Union, UAW v. OSHA, 37F.3d 665, 668 (D.C. Cir. 1994). Finally,if OSHA promulgates a rule that differssubstantially from an existing nationalconsensus standard, the Agency mustpublish in the Federal Register astatement of reasons why the ruleadopted will better effectuate thepurposes of the Act than the nationalconsensus standard. 29 U.S.C. 655(b)(8).

C. Historical Overview: OSHA’sDeterminations in Prior RulemakingsThat Employers Should Pay forNecessary Personal ProtectiveEquipment

Since 1978, OSHA has promulgatedmany occupational health and safetystandards explicitly requiring employersto furnish personal protectiveequipment ‘‘at no cost to employees.’’ 1

In these rulemakings, OSHA hasstated that language explicitly requiringthat PPE be furnished without cost toemployees is necessary to effectuate thepurposes of the Act and to ‘‘clarif[y]OSHA’s position which has long beenimplicit 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 FR46266 (Dec. 4, 1987) (formaldehydepreamble). OSHA has also concluded inits rulemaking on the Cancer Policy thatpersonal protective equipment shouldbe treated no differently fromengineering controls for the purposes ofcost-allocation (45 FR 5261, Jan. 22,1980):

The requirement that employers pay forprotective equipment is a logical corollary ofthe accepted proposition that the employermust pay for engineering and work practicecontrols. There is no rational basis fordistinguishing the use of personal protectiveequipment [from other controls]. The goal ineach case is employee protection;consequently the responsibility of paying forthe protection should, in each case, rest onthe employer.

OSHA has further determined thatrequiring employers to pay for personalprotective equipment contributes toincreased health and safety protectionin several ways. The employer is mostknowledgeable about hazards existing inthe workplace and is therefore best ableto select and maintain appropriateprotective equipment. Requiringemployers to purchase personalprotective equipment ensures that theyretain control over the selection,issuance, maintenance, and use of thedevices. See 43 FR 19619 (May 5, 1978)(inorganic arsenic preamble); 46 FR4153 (hearing conservation preamble).Shifting the financial burden toemployees, on the other hand, ‘‘riskslosing the necessary control over theorganized and consistent selection,issuance, maintenance and use of suchequipment.’’ 46 FR 4153 (hearingconservation preamble).

OSHA has also concluded thatcharging employers with the cost ofpersonal protective equipment, as wellas other requirements imposed bystandards, is necessary to ensure theemployee’s voluntary cooperation in theemployer’s safety program. In requiringemployers to pay for hearing protectorsas part of the hearing conservationstandard, OSHA relied upon thetestimony of the director of the Safetyand Health Department of theInternational Brotherhood of Teamsters:

[an] employer’s attempt to require itsemployees to purchase their own personalear protective devices would causeresentment among the workers and clearlydemonstrate to them the lack of commitmenton the part of their employer in preventinghearing loss. Such a requirement woulddiscourage the use of ear protective devicesand would create an adversarial atmospherein regard to the hearing conservationprogram. 46 FR 4153 (emphasis added).

OSHA has found that the need toensure voluntary cooperation byemployees was also an important reasonto require employers to pay for otherprotections in standards, includingmedical examinations and medicalremoval protection (MRP). Inpromulgating the lead standard, OSHArelied upon extensive evidence thatemployees’ fears of adverse economicconsequences from participation in amedical surveillance program couldseriously undermine efforts to improveemployee health. 43 FR 54442–54449(Nov. 21, 1978). OSHA cited data fromnumerous sources to show thatemployees’ concerns about the possibleloss of income would make themreluctant to participate meaningfully inany program that could lead to jobtransfer or removal. Id. OSHApromulgated the lead standard’s M.R.P.provision ‘‘specifically to minimize theadverse impact of this factor on the leveland quality of worker participation inthe medical surveillance program.’’ Id.at 54449.

Courts have upheld OSHA’s statutoryauthority to charge employers with thecosts of complying with standards andhave affirmed the Agency’s findings ofbenefits accruing from this requirement.In reviewing the lead standard, the D.C.Circuit found that ‘‘[the] scheme of thestatute, manifested in both the expresslanguage and the legislative history . . .appears to permit OSHA to chargeemployers the cost of any new means itdevises to protect workers.’’ UnitedSteelworkers, 647 F.2d at 1231. Thecourt found reasonable OSHA’sdetermination that wage retention andother M.R.P. benefits were necessary inview of employee resistance to programsthat could result even in limited loss ofearnings. Id. at 1237. Moreover, thecourt found that OSHA couldlegitimately consider benefits that weremore indirect. It upheld the standard’srequirement that employers pay formedical opinions from physicians whoare selected by employees, in partbecause employees will be more likelyto cooperate in, and improve theaccuracy of, medical examinationsperformed by physicians they trust. Id.at 1239. See also Forging Indus. Ass’n,773 F.2d at 1451–1452 (upholding therequirement in the hearing conservationstandard that employers pay for hearingprotectors).

Some have suggested that employeepayment for PPE helps encourageemployees to maintain their PPEproperly. OSHA notes that employees,because their own safety is at stake,already have significant incentives toassure that PPE is maintained in amanner that assures that the PPE will



2 For existing standards adopted as nationalconsensus or established Federal standardspursuant to section 6(a) of the Act, thedetermination of significant risk is implied inCongress’s direction that such standards should bepromulgated as ‘‘occupational safety or health

standard[s].’’ 29 U.S.C. 655(a). The Court inBenzene interpreted the definition of ‘‘occupationalsafety and health standard’’ in section 3(8) of theAct to mean a standard that addresses a significantrisk of harm. 448 U.S. at 639–642.

function safely. Requiring employeepayment for PPE could encourageemployees to consider a trade-offbetween assuring the safety of the PPEand assuring its longevity, even thoughthe PPE may be worn or damaged to thepoint that it no longer functionsproperly. Employee payment could alsolead to perverse incentives foremployers. Given a choice betweenengineering controls that the employermust pay for, and PPE that would bepaid for by employees, employerswould have a strong incentive to usePPE even though engineering controlswould be more protective and mighteven be cheaper. OSHA views thetheoretical loss of some employeeincentive to maintain equipment asminor compared to the importance ofassuring employers provide a safe andhealthy workplace.

D. The Proposed PPE Revisions ComplyWith Statutory Criteria

OSHA believes that the proposed PPErevisions readily comply with thestatutory criteria outlined above. In theAgency’s view, the proposed languagethat, with certain exceptions, employersmust provide personal protectiveequipment under existing standards ‘‘atno cost to employees,’’ does no morethan clarify a requirement legallyimplicit under the Act. Congress itselfintended to impose the costs of safetyand health on employers and chargedemployers with sole responsibility forcompliance with standards. ATMI, 452U.S. at 520–5211; United Steelworkers,647 F.2d at 1231. The requirement thatemployers pay for the means necessaryto achieve compliance is implicit in thestatute itself, and therefore, is properlyan implied term of every occupationalsafety or health standard.

Based on the OSH Act’s implicit cost-allocation scheme, OSHA hasinterpreted standards requiringemployers to ‘‘provide’’ personalprotective equipment to mean that thisequipment must be furnished toemployees at no charge. For example,OSHA has interpreted the coke ovenemissions standard, 29 CFR1910.1029(h)(1), which states that ‘‘theemployer shall provide and assure theuse of appropriate protective clothingand equipment,’’ to require thatpersonal protective equipment befurnished at no charge to coke ovenworkers. The Occupational Safety andHealth Review Commission held thatinterpreting ‘‘provide’’ to mean ‘‘payfor’’ was consistent with the statutoryintent and with the Agency’s priorpublished interpretation. Secretary ofLabor v. Erie Coke Corp., 15 O.S.H. Cas.

(BNA) 1561, 1563–1565 (Review Comm.1992).

OSHA has also interpreted its generalpersonal protective equipmentstandards to require that equipment befurnished at no cost to employees. In1994, OSHA issued a compliancememorandum entitled ‘‘EmployerObligation to Pay for Personal ProtectiveEquipment.’’ In this compliancememorandum, OSHA interpreted 29CFR 1910.132, 29 CFR 1926.95, andother PPE standards to requireemployers to provide PPE at no cost toemployees, except where the equipmentis personal in nature and usable off thejob.

OSHA recognizes that theOccupational Safety and Health ReviewCommission has subsequently rejectedOSHA’s policy interpretation of 29 CFR1910.132 as requiring employerpayment for PPE. See Union Tank CarCo., OSHRC No. 96–0563 (assuming the1994 memorandum represented achange in position, and finding thatOSHA had not presented an adequatejustification for the change).

Section IX of this preamble, OSHA’sSupplementary Statement of Reasonsfor its Interpretation of 29 CFR1910.132(a), contains a detailedexplanation of OSHA’s interpretation ofsection 1910.132(a), which addresses indetail the Commission’s concerns anddemonstrates that the Agency’s readingof its general personal protectiveequipment standard is consistent withthe statutory scheme and is reasonable.

In OSHA’s view, the proposed rulesimply clarifies the employer’s pre-existing obligations under the personalprotective equipment standards. SeeEdison Elec. Inst. v. OSHA, 849 F.2d611, 620 (D.C. Cir. 1988); OSHA’sSupplemental Statement of Reasons.Assuming, however, that the languagein existing § 1910.132 does not clearlyconvey a requirement for employerpayment, the proposed rule is necessaryand appropriate to conform the standardto the requirements of the statute and tothe position the Agency has consistentlyadopted in rulemaking proceedings formore than twenty years.

The Agency believes, moreover, thatimplementation of the proposedrevisions will contribute in a significantway to a safer work environment. Theexisting PPE standards reflect adetermination that the use of PPE isnecessary to reduce a significant risk ofinjury.2 OSHA considers the proposed

revisions to be ancillary requirements ofthe existing PPE standards. They arereasonably related to the existingstandards’ purpose of preventing injuryby requiring the provision and use ofappropriate personal protectiveequipment.

Moreover, OSHA believes that theprinciple expressed in National Grainand Feed, discussed above, providesanalogous support for this proposedrule. In amending 29 CFR 1910.132 in1994 to include new requirements for,among other things, hazard assessmentsand employee training, the Agencyexamined PPE use in general industry.OSHA found that, although the standardhad been in effect since 1971, the datademonstrated that a significant risk ofinjury attributable to the non-use ormisuse of PPE remained. See 59 FR16335 (April 6, 1994). OSHAdetermined that compliance with thefinal rule would result in morewidespread acceptance and use ofappropriate PPE, and would, therefore,significantly reduce the risk of injury.However, OSHA did not find thatcompliance with the rule wouldeliminate the significant risk due to thenon-use or misuse of PPE. As discussedbelow, there is evidence that requiringemployers to pay for PPE will result ina further substantial reduction in therisk of non-use or misuse of PPE bycentralizing the control over PPEprograms, and by eliminating economicdisincentives to the voluntary use ofPPE. Cf. National Grain and Feed, 866F.2d at 735.

As OSHA found in promulgating thehearing conservation standard, requiringemployers to pay for personal protectiveequipment ensures that employersretain control over the selection,issuance, maintenance, and use of suchequipment. OSHA believes thatensuring centralized control over thesecritical functions promotes a moreorganized and consistent approach topersonal protective equipmentrequirements. See 46 FR 4153 (Jan 16,1981). See also 43 FR 19619 (InorganicArsenic) (May 5, 1978).

OSHA also believes that employeesare more likely to cooperate inachieving full compliance with existingstandards if protective equipment isprovided at no charge. The evidenceadduced during the rulemaking for thelead standard demonstrated that manyemployees would be reluctant toparticipate fully in a program that couldresult in a loss of income. OSHA

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3 In her brief to the Commission in Budd filed in1973, the Secretary stated her interpretation that 29CFR 1910.132(a) does not require employers to payfor safety shoes. The Secretary noted that ‘‘safetyshoes are purchased by size, are available in avariety of styles, and are frequently worn off the job,both for formal and casual wear. Furthermore, it isneither feasible for a different employee to wear theshoes each day nor feasible that upon resigningfrom the position an employee will leave the shoesbehind to be worn by another individual.’’ SeeSection IX., OSHA’s Supplemental Statement ofReasons For Its Interpretation of 29 CFR1910.132(a).

believes that this problem is not limitedto MRP provisions. In Secretary of Laborv. Phelps Dodge Corp., 11 O.S.H. Cas.(BNA) 1441, 1443 (Rev. Comm. 1983),the Review Commission held that theemployer did not provide medicalexaminations under the InorganicArsenic standard ‘‘without cost to theemployee’’ when it allowed employeesto take examinations only during theirfree time and did not reimburse themfor travel expenses or the timeconsumed in taking the examinations.The Commission noted the ALJ’sfinding that when employees wererequired to provide their owntransportation to and from the hospitaland to sacrifice their personal time totake examinations, 42% of them failedto participate.

Such evidence, showing thatemployees often make decisions thatrisk their health and safety to avoidsuffering economic loss, is relevant tothe proposed revision. It is certainlyreasonable to believe that employeeswho are furnished personal protectiveequipment at no charge are morestrongly motivated to wear it, and toreplace it promptly when worn ordamaged, than are employees who mustpurchase such equipment. Indeed,OSHA is aware of evidence presented inenforcement litigation that employeeshave continued to use worn-out ordefective items of personal protectiveequipment because of the cost ofreplacing this equipment. In the UnionTank case, the employee representativepresented an affidavit that someemployees taped or wrapped wirearound their damaged metatarsal safetyboots in order to avoid having to pay upto $130 per pair to replace them.Similarly, in Ormet Primary AluminumCorp., OSHRC Docket No. 96–0470, anemployee testified that he continued towear safety boots, even though theprotective steel toes were exposed andposed an electrocution hazard, becausehe could not afford a new pair. Theemployee also testified that someworkers put a cement-like substanceover the steel toes of their boots whenthe leather covering wore away, but thatthis practice was hazardous because thesubstance was flammable.

Based on the available evidence,OSHA preliminarily concludes that theproposed revisions will significantlyenhance compliance with existingstandards. OSHA estimates that theproposed rule will prevent over 47,000injuries that occur annually as a resultof the non-use or misuse of personalprotective equipment, including sevenfatal injuries. See Section VI.,Preliminary Economic Analysis.

OSHA has also preliminarilyconcluded that excepting safety-toefootwear and prescription safetyeyewear from the payment requirementis appropriate and does not conflictwith the legislative intent. OSHA haslong taken the position that employersshould not be required to pay for safety-toe footwear because it is personal innature and frequently worn off the job.See The Budd Co., 1 O.S.H. Cas. (BNA)1548 (Rev. Comm. 1974). OSHAbelieves that prescription safety eyewearshares these characteristics. Because ofthe special nature of safety-toe footwearand prescription safety eyewear, thestatutory and policy reasons forrequiring employers to pay for othertypes of PPE do not carry the sameweight for these types of PPE 3. OSHAbelieves that there is little statutoryjustification for requiring employers topay for such personal equipment if it isused away from the workplace and if allthree of the proposed conditions aremet: (1) The employer permits thefootwear or eyewear to be worn off thejob-site; (2) the footwear or eyewear isnot used at work in a manner thatrenders it unsafe for use off the job-site;and (3) such footwear is not designedfor special use on the job.

The Commission and one court ofappeals have agreed with the Secretary’sinterpretation that 29 CFR 1910.132(a)does not require employees to pay forsafety shoes. The Budd Co. O.S.H. Cas.(BNA) 1548 (Rev.Comm. 1974); 513 F.2d201, 205 (3d Cir. 1975). See also UnitedSteelworkers, 647 F.2d at 1231 n.66(noting special character of safety-toeprotective footwear which the employeewould wear off-the-job as well as on-the-job). Moreover, OSHA’s loggingstandard (see 29 CFR 1910.266 (d)(1)(v))provides analogous support for theproposed exceptions for safety shoesand prescription safety eyewear. OSHAexcepted logging boots from among thetypes of equipment that employers mustprovide at no cost under the loggingstandard, based in part on evidence thatlogging boots are personal in nature andused 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 CFR1910.132(a). The three conditionsOSHA is proposing to apply to theexception for safety-toe footwear andprescription safety eyewear all relate tooff-site use. For example, if theemployer prohibits off-site use of thefootwear or eyewear, employees wouldclearly not be able to wear it off the job,and the exception would not apply.Similarly, if the footwear or eyewear isused at work in a way that makes itunsafe for use off the job, e.g., safety-toefootwear is worn in a lead chromatepigment plant, it would be unsafe forthe employee to wear it at home, andthe exception would not apply. Finally,if the footwear or eyewear is designedfor special use on the job, e.g., theeyewear is built into a welding mask, orthe footwear has built-in metatarsalguards as well as safety-toes, it couldnot be worn off-site, and the exceptionwould not apply.

If one or more of these conditions isnot met for safety-toe footwear orprescription eyewear, the exception forthese types of PPE does not apply, andthe employer would be required to payfor the PPE.

For these reasons, OSHA haspreliminarily concluded that employersshould not be required to pay for safety-toe protective footwear and prescriptionsafety eyewear, provided that all threeof the excepted conditions are met.However, as discussed in other sectionsof this document, OSHA seeks commenton whether these exceptions, and theconditions restricting their applicability,are appropriate and whether other typesof personal protective equipment shouldbe excepted or other limiting conditionsshould be considered.

OSHA believes that compliance withthe proposed standard is technologicallyfeasible because the PPE affected by thisrulemaking has already been shown tobe technologically feasible in numerousother rulemakings, e.g., OSHA’s 1994PPE rulemaking and the individualrulemakings requiring particular typesof PPE (e.g., fall protection inconstruction, and various shipyardemployment standards). The affectedPPE, as shown by the record evidencein these rulemakings, is widelymanufactured, distributed, and used inworkplaces in all industries. OSHAbelieves that the proposed standard isalso economically feasible because thePPE of concern has been shown to beeconomically feasible in the earlierrulemakings referred to above and,additionally, for this proposed rule, asdetailed in Section VI., PreliminaryEconomic Analysis. The proposed rulemerely shifts some costs previouslyborne by employees to their employers.



Indeed, in its economic analyses ofother rules requiring PPE, OSHA hasalways assumed that PPE would be paidfor by the employer. The PreliminaryEconomic Analysis also indicates that tothe extent that, the proposal enhancesPPE use, employers will save moneybecause their employees will avoid theinjuries and illnesses that wouldotherwise continue to occur from theimproper use of PPE. Finally, thispreamble explains why the proposedregulatory text will enhance safetyprotection for workers and will bettereffectuate Congress’ intent thatemployers pay for the costs ofcompliance with OSHA standards. 29U.S.C. 655(b)(8). Accordingly, theproposed standard complies with allapplicable statutory criteria.

IV. Summary and Explanation of theProposed Rule

A. Introduction

OSHA is proposing to revise itsstandards requiring employers toprovide PPE to clarify that the employermust pay for the PPE, except for safety-toe footwear and prescription safetyeyewear that meets all threeconditions—the employer permits off-site use, the footwear or eyewear is safefor off-site use, and the footwear oreyewear is not designed specially foron-site use. The logging boots requiredby 29 CFR 1910.266(d)(1)(v) are alsoexcepted from the employer paymentrequirement. This proposal applies tostandards in the following industrysectors: general industry, construction,and maritime (including shipyards,marine terminals, and longshoringoperations). It does not apply toagriculture.

The Agency believes that requiringemployers to pay for PPE is central tothe effective implementation of the Act.As noted earlier in this preamble, OSHAis using the abbreviation PPE to coverall protective equipment, includingpersonal protective equipment, that isprovided to employees to protect themfrom workplace hazard. However, someinconsistent statements andinterpretations by OSHA over the yearsregarding the Agency’s PPE paymentpolicy, and the recent Union Tankdecision by the Review Commission,have now made it difficult for theAgency to uniformly enforce this policy.

Therefore, OSHA is proposing toresolve this issue by clearly identifying,through regulation, who is required topay for PPE. OSHA intends thisrulemaking to lead to the consistentapplication of the Agency’s protectiveequipment requirements throughout theregulated community and by Agency

compliance personnel. The rulemakingprocess will also give interested partiesan opportunity to participate in theAgency’s decisions through writtencomments and informal public hearings.

The following discussion presents theAgency’s reasons and preliminaryconclusions regarding the proposedrevisions to its PPE standards, andexplains the proposed requirements.

B. Reasons Why the Agency BelievesThat Employers Must Pay for PPE

1. The OSHAct. The OccupationalSafety and Health Act of 1970 requiresemployers to provide a safe andhealthful workplace for their employees.This mandate includes the financialobligation of employers to providecontrols to address hazards that couldcause injury or physical harm to theiremployees. (See the LegalConsiderations section of this preamblefor a more detailed discussion of theemployer’s obligation to pay forworkplace protections.)

2. PPE is also a hazard controlmeasure. Most standards requireemployers to implement engineeringcontrols, such as ventilation or barriers,and administrative controls, such asregulated areas or danger zones, becausethese are typically thought to be theprimary ways to reduce hazardousexposures to employees. There hasnever been any doubt that employerspay for these controls.

PPE is another type of controlmeasure that is often necessary toreduce exposures to health and safetyhazards. In many cases, PPE usesupplements engineering, work practice,and administrative controls where suchcontrols do not provide adequateprotection. In some circumstances, suchas in some maintenance work, PPE isused as the sole or primary means toprotect employees. Consequently, it isappropriate for OSHA standards torequire employers both to implementand to pay for PPE as a hazard controlmeasure, just as they must do forengineering and administrative controls.

OSHA standards require manydifferent types of PPE to protectemployees from the variety of hazardsin the workplace. Table I indicates thekinds of PPE required by OSHAstandards.

TABLE I.—LIST OF PERSONALPROTECTIVE EQUIPMENT

Personal fall arrest system—Safety belts.—Body belts.—Lifelines.—Lanyards.—Harnesses.

TABLE I.—LIST OF PERSONALPROTECTIVE EQUIPMENT—Continued

—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 protec-

tion.—Metatarsal protection.

Respiratory protection—Air-purifying respirators.—Atmosphere-supplying respirators, includ-

ing supplied-air respirators and self-con-tained 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-relatedsubstances

—Coveralls.—Full body work clothing.—Laboratory coats.—Gowns.



TABLE I.—LIST OF PERSONALPROTECTIVE EQUIPMENT—Continued

—Disposable paper clothing.—Shoe covers.

3. Employers are in the best positionto provide the correct type of protectiveequipment and keep it in repair. OSHAbelieves that requiring employers to payfor PPE will directly improve safety andhealth because the employer is in thebest position to select, order, and obtainthe proper type and design of PPE,ensure that it is of the necessary quality,and maintain it.

Employers are required to perform ahazard assessment of the workplace andselect the correct type of PPE to protectemployees from the hazards identifiedin that hazard assessment(§ 1910.132(d)). Employees often do nothave the expertise to select the correcttype of PPE, especially where theselection of appropriate PPE, such asfall protection equipment andrespirators, may be complicated.

OSHA also believes that employersare in the best position to keep the PPEin repair. Employers are required tomaintain PPE in a sanitary and reliablecondition (§ 1910.132(a)). Because ofthis responsibility, OSHA believes thatemployers can maintain better controlover the inventory of PPE byperiodically inspecting the PPE and,when necessary, repairing or replacingit due to damage or normal wear andtear.

OSHA gave these reasons forrequiring employers to pay for PPE inthe final standard for logging operations(59 FR 51683, October 12, 1994). Anumber of commenters supported thisreasoning.

OSHA first used this reasoning inrulemakings conducted in the 1970’s.For example, the Inorganic Arsenicstandard explicitly requires employersto pay for respirators, protectiveclothing, and protective equipment,including gloves, shoes, and face shieldsor goggles. 29 CFR 1910.1018(j)(1). Thepreamble to the rule states that it is theemployer’s obligation to provideprotective equipment at no cost to theemployee and that doing so puts theemployer in the best position to providethe correct type of equipment and keepit in repair. 43 FR 19619 (May 5, 1978).OSHA applied the same reasoning inrequiring employers to pay forrespirators when necessary to protectemployees from exposure to cotton dust.43 FR 27387 (June 23, 1978). Thesestandards were subsequently upheld onappeal.

In the recent respiratory protectionstandard, OSHA stated clearly that the

employer must pay for any respiratorrequired to be worn by employees.Although respirators are one of the moreexpensive types of PPE, there was noopposition to this requirement. 63 FR1152, 1195, (January 8, 1998.)

4. Requiring employees to pay for PPEmay discourage their use of PPE.Another reason for requiring theemployer to pay for PPE is thatemployees may be discouraged fromusing necessary PPE if they areresponsible for paying for it and mustselect and buy it.

In the preamble to the HearingConservation amendment, OSHAdetermined that employers should payfor hearing protectors based in part onthe reasoning that permitting anemployer to charge employees forhearing protectors could discourage theuse of such devices and therebyundermine the effectiveness of theemployer’s hearing conservationprogram. 46 FR 4153 (January 16, 1981).The Fourth Circuit Court of Appealsupheld the standard’s allocation ofhearing protector costs to employers.Forging Indus. Ass’n v. Secretary ofLabor, 773 F.2d 1436, 1451 (4th Cir.1985)(en banc). The Court noted in thatcase that the Supreme Court’s finding inATMI left no doubt that Congressintended to impose compliance costs onemployers and that ‘‘it is only logicalthat OSHA may require employers toabsorb such costs.’’ Forging Indus.Ass’n, 773 F.2d at 1451.

One of the reasons OSHA has givenfor medical removal protection (MRP)benefits in its lead and cadmiumstandards is to encourage employeeparticipation in the medicalsurveillance programs mandated bythose standards. MRP protects the wagesand other benefits of employeesremoved from exposure to a toxicsubstance because of an exposure—related condition revealed by medicalsurveillance. In the preamble to thecadmium standard, OSHA stated‘‘(MRP) . . . increase(s) employeeparticipation and confidence in thestandard’s medical surveillanceprogram.’’ 57 FR 42101, 42367(September 14, 1992). Analogousreasoning supports the proposedrequirement that employers pay for PPE.OSHA believes that requiring employersto pay for PPE will increase thelikelihood that the employees will usethe PPE and have confidence in theemployer’s PPE program. Therequirement for MRP and OSHA’srationale were both specifically upheldin the lead decision, UnitedSteelworkers v. Marshall, 647 F.2d 1189,1231 (D.C. Cir. 1980).

As discussed in the Background andLegal Considerations sections, OSHAhas explicitly required employerpayment for PPE in all health standardsissued since 1977. This issue has beenless clearly and directly addressed,however, in OSHA’s safety standards.As discussed in the Background section,OSHA attempted to clear up anyambiguity in its 1994 memo to the fieldwhich stated that employer payment forPPE was generally required (with anexception for steel-toe safety footwearand prescription eyewear).

5. Some State-Plan States alreadyinterpret their standards to requireemployers to pay for PPE. Several Stateswith OSHA-approved State-plansalready require employers to pay forPPE. These requirements have providedprotection to employees without posingfeasibility problems for employers. Forexample, the State of North Carolinarequires employers to provide, at nocost to the employee, all personalprotective equipment that the employeedoes not wear off the job-site for use offthe job. However, this State requirementapplies only to general industryworkplaces.

California standards are somewhatmore extensive than those of NorthCarolina. Whenever California standardsuse the word ‘‘provide,’’ California StateCourts have uniformly interpreted thestandards to mean that the employerpays for all PPE (including anyreplacement PPE) in all industry sectors.The only exceptions are for PPE thatreflect ‘‘special preferences’’ byemployees, such as prescription safetyeyewear or shoes of higher quality thanrequired, or that reflect the individual’sstyle preference. Many other State-planstates, including Alaska, Arizona,Indiana, Kentucky, New York, andMinnesota, either require the employerto pay for all PPE or follow the practiceoutlined in Federal OSHA’s 1994 memoto the field.

C. Scope of Proposed RulemakingThe proposal applies to the following

industry sectors: general industry,construction, and maritime (shipyardemployment, marine terminals, andlongshoring). It does not apply toagriculture because OSHA does nothave general standards for PPE use inagriculture. However, some employeesin agriculture are covered by twogeneral industry standards, the loggingstandard (29 CFR 1910.266) and thecadmium standard (29 CFR 1910.1027),which specifically require employers topay for required PPE (except in the caseof the logging boots specified in1910.266(d)(l)(v), which are specificallyexempted from the requirements of the



proposed standard). The PPErequirements in these two standardswill continue to apply in agriculture.

Even though the types of PPE mayvary across and within industry sectors,the same OSHA policy considerations

on payment apply to all of them. Inaddition, many OSHA safety and healthstandards already contain provisionsrequiring the employer to pay forprotective equipment and PPE.

Table II lists many OSHA provisionsrequiring the use of protectiveequipment and PPE. The table identifiesthe provision, and the type of PPErequired 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

§ 1910.28(g)(9) .................................................... Safetybelt and lifeline.§ 1910.28(j)(4) ..................................................... Safetybelt and lifeline.§ 1910.94(c)(6)(iii)(a) ........................................... Air-supplied respirator.§ 1910.94(d)(9)(ii) ................................................ Rubber and impervious boots.§ 1910.94(d)(9)(iii) ............................................... Shoes.§ 1910.94(d)(9)(iv) ............................................... Impervious gloves.§ 1910.94(d)(9)(v) ............................................... Impervious aprons, coats.§ 1910.94(d)(9)(vi) ............................................... Jackets, chemical goggles, face shields, respirators.§ 1910.132(a) ...................................................... Personal protective equipment, eye, face, head, extremities, protective clothing, and res-

piratory devices.§ 1910.132(b) ...................................................... Employee-owned PPE (any PPE owned by employees and used on the job-site).§ 1910.218(a)(1)(iv) ............................................. Gloves, goggles, and aprons.§ 1910.242(b) ...................................................... PPE appropriate for hazards associated with the use of hand and portable powered tools and

equipment.§ 1910.243(d)(1)(ii) .............................................. Eye, face, head protection.§ 1910.252(b)(1)(i) .............................................. Safetybelt, lifeline.§ 1910.252(b)(2)(i)(A) .......................................... Welding helmet, hand shields.§ 1910.252(b)(2)(i)(B) .......................................... Filter lens.§ 1910.252(c)(4)(2)(ii) ......................................... Airline respirator.§ 1910.252(c)(4)(iii) ............................................. SCBA.§ 1910.252(c)(7)(iii) ............................................. Respirator.§ 1910.261(b)(2) .................................................. Foot protection, shin guards, hardhats, noise attenuation.§ 1910.261(b)(5) .................................................. Lifeline, safety harness.§ 1910.261(c)(2)(vii) ............................................ Foot, head, eye protection.§ 1910.261(c)(6)(ii) .............................................. Foot, head, eye protection.§ 1910.261(c)(7)(ii) .............................................. Foot, head, eye protection.§ 1910.261(d)(1)(i) .............................................. Respirators, goggles, protective masks.§ 1910.261(d)(1)(ii) .............................................. Eye, face protection, clothing.§ 1910.261(g)(2)(i),(ii),&(iii) ................................. Gas mask, respirators, eye protection, safety belts, lifeline.§ 1910.261(g)(4) .................................................. Respirators, lifebelts, lifelines.§ 1910.261(g)(5) .................................................. Rubber boots, gloves, apron, eye protection.§ 1910.261(g)(6) .................................................. Respirator.§ 1910.261(g)(10) ................................................ Gas mask.§ 1910.261(g)(15)(ii),(iii)&(v) ............................... Respirator, lifeline, safetybelt.§ 1910.261(g)(18)(i)&(ii) ...................................... Showers, bubblers.§ 1910.261(h)(2)(iii)&(iv) ..................................... Gas mask, SCBA.§ 1910.261(i)(4) ................................................... Eye, head, foot and shin protection.§ 1910.261(k)(3) .................................................. Face shields, aprons, rubber gloves.§ 1910.265(c)(21)(i) ............................................. Safetybelt, lifeline.§ 1910.265(d)(2)(ii)(h) ......................................... Life ring and line.§ 1910.265(d)(2)(iii)(g) ........................................ Buoyant devices.§ 1910.335(a)(1)(i) .............................................. Electrical protective equipment.§ 1910.335(a)(2)(i) .............................................. Protective shields, barriers, insulation.§ 1910.66(j) ......................................................... Personal fall arrest system.§ 1910.67(c)(2)(v) ................................................ Bodybelt.§ 1910.120(g)(3)(iii) ............................................. Positive pressure SCBA, airline.§ 1910.120(g)(3)(iv) ............................................. Totally-encapsulated chemical suit.§ 1910.120(c)(5(ii) ............................................... 5-minute ESCBA.§ 1910.120(c)(5)(iii) ............................................. Level B PPE.§ 1910.120(q)(3)(iii) ............................................. Firefighting PPE.§ 1910.120(q)(3)(iv) ............................................. Positive pressure SCBA.§ 1910.133(a)(1) .................................................. Eye and face protection.§ 1910.134 .......................................................... Respirators.§ 1910.135 .......................................................... Protective helmet.§ 1910.136 .......................................................... Foot protection.§ 1910.137 .......................................................... Electrical protective equipment.§ 1910.138 .......................................................... Hand protection.§ 1910.146(k)(1)(i) ............................................... PPE, rescue equipment.§ 1910.156(e)(1)(i) .............................................. Protective clothing.§ 1910.156(e)(1)(ii) .............................................. Firefighting PPE.§ 1910.156(f)(1)(i) ............................................... Respirators.§ 1910.266(d)(1)(iii) ............................................. Hand protection.§ 1910.266(d)(1)(iv) ............................................. Leg protection.



TABLE II.—PPE PROVISIONS IN OSHA STANDARDS—Continued


§ 1910.266(d)(1)(v) ............................................. Logging boots.§ 1910.266(d)(1)(vi) ............................................. Head protection.§ 1910.266(d)(1)(vii) ............................................ Eye and face protection.§ 1910.268(g)(1) .................................................. Safetybelt and strap.§ 1910.268(1)(i) ................................................... Head protection and eye protection.§ 1910.272(g)(1)(iii)(B) ........................................ Respirator.§ 1910.272(g)(2) .................................................. Body harness and lifeline.§ 1910.94(a)(5)(i) ................................................ Respirators.§ 1910.94(a)(5(iv) ................................................ Respirators.§ 1910.94(a)(5)(v)(B) ........................................... Eye and face protection.§ 1910.95(b)(1) .................................................... PPE (Hearing protection).§ 1910.95(i)(1) ..................................................... Hearing protection.§ 1910.95(i)(3) ..................................................... Hearing protection.

Part 1910 General Industry Health 6(b) Standards1

§ 1910.134 .......................................................... Respirators.§ 1910.1002 ........................................................ Protective equipment, Respirators.§ 1910.1001(g)(2)(i) ............................................ Respirators.§ 191.1001(h)(1) .................................................. Coveralls, gloves, head coverings, foot coverings, face shields, goggles.§ 1910.1001(j)(7)(iii)(E) ....................................... PPE (for protection against asbestos).§ 1910.1003(b) .................................................... Protective clothing, smocks, coveralls, gloves.§ 1910.1003(c)(4)(iii) ........................................... Long-sleeved shirts, pants, boots.§ 1910.1003(c)(4)(iv) ........................................... Respirators.§ 1910.1003(c)(5)(i) ............................................. Gloves, boots, respirators.§ 1910.1004 ........................................................ Respirators, protective clothing.§ 1910.1006 ........................................................ Respirators, protective clothing.§ 1910.1007 ........................................................ Respirators, protective clothing.§ 1910.1008 ........................................................ Respirators, protective equipment.§ 1910.1009 ........................................................ Respirators, protective equipment.§ 1910.1010 ........................................................ Respirators, protective equipment.§ 1910.1011 ........................................................ Respirators, protective equipment.§ 1910.1012 ........................................................ Respirators, protective equipment.§ 1910.1013 ........................................................ Respirators, protective equipment.§ 1910.1014 ........................................................ Respirators, protective equipment.§ 1910.1015 ........................................................ Respirators, protective equipment.§ 1910.1016 ........................................................ Respirators, protective equipment.§ 1910.1017 ........................................................ Respirators, protective equipment.§ 1910.1018 ........................................................ Respirators, protective work clothing, eye and face protection.§ 1910.1025 ........................................................ Respirators, protective work clothing.§ 1910.1027 ........................................................ Respirators, protective work clothing, eye and face, head protection.§ 1910.1028 ........................................................ Respirators, protective clothing, eye and face protection.§ 1910.1029 ........................................................ Flame resistant pants, jacket, gloves, eye and face protection, insulated footwear, protective

helmets.§ 1910.1030 ........................................................ Gloves, gown, lab coat , face shield, masks, eye protection, mouthpieces, pocket mask.§ 1910.1043 ........................................................ Respirators.§ 1910.1044 ........................................................ Respirators, protective clothing, eye and face protection.§ 1910.1045 ........................................................ Respirators, protective clothing and equipment.§ 1910.1047 ........................................................ Respirators, protective clothing and equipment.§ 1910.1048 ........................................................ Respirators, protective clothing and equipment.§ 1910.1050 ........................................................ Respirators, aprons, coveralls, gloves, head coverings, foot coverings, face shields, chemical

goggles, other PPE.§ 1910.1051 ........................................................ Respirators, protective clothing, eye and face protection.§ 1910.1052 ........................................................ Respirators, protective clothing, eye and face protection.§ 1910.1200(h)(3)(iii) ........................................... PPE (for protection against hazardous chemicals).§ 1910.1450(e)(3)(ii) ............................................ PPE (for protection against hazardous chemicals in laboratories).§ 1910.1450(f)(4)(i)(C) ........................................ PPE (for protection against hazardous chemicals in laboratories).§ 1910.1450(i) ..................................................... Respirators.

Part 1915—Shipyard Employment 6(a) Standards 1

§ 1915.12(c)(4)(ii) ................................................ Respirators, other PPE.§ 1915.12(e)(1)(i) ................................................ Respirators, other PPE.§ 1915.13(b)(6)(iv) ............................................... Respirators, other PPE.§ 1915.32(a)(3) .................................................... Respirators, protective clothing.§ 1915.33(a) ........................................................ Eye and face protection.§ 1915.33(d) ........................................................ Face protection.§ 1915.33(e) ........................................................ Face protection.§ 1915.34(a)(1) .................................................... Goggles, face shields.§ 1915.34(a)(4) .................................................... Respirators.§ 1915.34(b)(1) .................................................... Respirators.§ 1915.34(c)(3)(i) ................................................. Respirators.§ 1915.34(c)(3)(ii) ................................................ Respirators.





§ 1915.34(c)(iii) ................................................... Respirators.§ 1915.34(c)(iv) ................................................... Protective clothing, gloves.§ 1915.34(c)(3)(v) ................................................ Safety belt.§ 1915.35(a)(1)(i) ................................................ Respirators.§ 1915.35(a)(1)(ii) ................................................ Respirators.§ 1915.35(a)(1)(iii) ............................................... Respirators.§ 1915.35(a)(2) .................................................... Respirators.§ 1915.35(b)(9) .................................................... Eye, face, head, hand protection, protective clothing.§ 1915.35(b)(13) .................................................. Respirators and protective clothing.§ 1915.35(b)(14) .................................................. Respirators and protective clothing.§ 1915.51(c)(3) .................................................... Respirators.§ 1915.51(d)(2) .................................................... Respirators.§ 1915.51(d)(3) .................................................... Respirators.§ 1915.51(e)(1)(ii) ................................................ Eye protection, filter lenses.§ 1915.51(e)(1)(iii) ............................................... Protective clothing.§ 1915.51(f)(2) ..................................................... Eye protection.§ 1915.53(d)(1) .................................................... Respirators.§ 1915.53(d)(2) .................................................... Respirators.

Part 1915—Shipyard employment 6(b) Standards 1

§ 1915.12(a)(3)(ii) ................................................ Respirators, other PPE.§ 1915.152(a) ...................................................... All PPE.§ 1915.153(a) ...................................................... Eye and face protection.§ 1915.154 .......................................................... Respirators.§ 1915.155 .......................................................... Head protection.§ 1915.156 .......................................................... Foot protection.§ 1915.157 .......................................................... Hand and body protection.§ 1915.158 .......................................................... Personal flotation devices, life rings.§ 1915.159 .......................................................... Personal fall arrest systems.§ 1915.160 .......................................................... Positioning device systems.

Part 1917—Safety and Health Regulations for Marine Terminals 6(b) Standards 2

§ 1917.22(c) ........................................................ Protective clothing.§ 1917.23(d)(1) .................................................... Respirators, emergency protective equipment.§ 1917.25(e)(1) .................................................... Respirators, emergency protective equipment.§ 1917.26(f) ......................................................... Personal flotation devices, safety belts.§ 1917.49(i)(3) ..................................................... Lifeline and safety harness.§ 1917.73(a)(3) .................................................... Respirators.§ 1917.73(c) ........................................................ Respirators, lifeline, safety harness.§ 1917.91(a)(1) .................................................... Eye and face protection.§ 1917.92 ............................................................ Respirators.§ 1917.93(a) ........................................................ Head protection.§ 1917.94(a) ........................................................ Foot protection.§ 1917.95(a) ........................................................ Protective clothing.§ 1917.95(b) ........................................................ Personal flotation devices.§ 1917.118(e)(1) .................................................. Ladder safety device.§ 1917.126(b) ...................................................... Personal flotation devices.§ 1917.152(e)(8)(ii) .............................................. Eye protection, filter lenses.§ 1917.152(e)(11) ................................................ Rubber pads, rubber boots.§ 1917.152(f) ....................................................... Respirators.§ 1917.152(f)(4) ................................................... Eye, head, hand protection.§ 1917.152(g)(3) .................................................. Respirators.§ 1917.152(h) ...................................................... Respirators, eye, face, head protection, filter lenses.§ 1917. 154 ......................................................... PPE (For protection against hazards resulting from the use of compressed air).

Part 1918—Longshoring 6(b) Standards 1

§ 1918.101 .......................................................... Eye protection.§ 1918.102 .......................................................... Respirators.§ 1918.103 .......................................................... Protective clothing.§ 1918.104 .......................................................... Foot protection.§ 1918.105 .......................................................... Head protection.§ 1918.106 .......................................................... Personal flotation devices

Part 1926 Construction 6(a) Standards 1

§ 1926.300(c) ...................................................... PPE (for hazards from the use of hand and power tools).§ 1926.304(e) ...................................................... PPE (for hazards from the use of woodworking tools).§ 1926.551(e) ...................................................... Eye protection, hardhats.





Part 1926—Construction 6(b) Standards 1

§ 1926.52(b) ........................................................ Hearing protection.§ 1926.95(a) ........................................................ General requirements for all PPE used in construction.§ 1926.95(b) ........................................................ Employee owned PPE.§ 1926.95(c) ........................................................ Design of PPE.§ 1926.701(f) ....................................................... Face and head protection.§ 1926.800(d)(7) .................................................. PPE used in underground construction.§ 1926 Subpart L ................................................ Personal fall arrest systems.§ 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) ofthe Act, i.e., without notice-and-comment rulemaking. A 6(b) standard is a standard that OSHA promulgated using the rulemaking process withpublic participation.

For all industry sectors, employers arein the best position to choose the propertype and quality of PPE, and to maintainthe PPE selected. The same statutoryconsiderations apply to all industrysectors, as discussed above in thispreamble.

However, additional considerationsapply to workplaces in construction,longshoring, and marine terminals: first,there is considerable turnover in theseindustries, and second, many of theaffected businesses employ only a smallnumber of employees. Based on OSHA’sexperience, safety-toe footwear is thetype of PPE most often used in theseindustries and the type of PPE thatemployees are most often required topay for at present. This equipmentwould be excluded from the ‘‘employerpays’’ requirement, provided that thethree proposed conditions are met.Therefore, OSHA does not believe thatits proposal will cause economicdifficulties for employers in thesesectors. See also section VI., PreliminaryEconomic Analysis.

D. Current OSHA RrequirementsConcerning Payment for PPE

Earlier OSHA standards promulgatedunder section 6(a) of the OSH Act (i.e.,those standards adopted without notice-and-comment rulemaking and publicparticipation) that required the use ofPPE did not explicitly address the issueof who is required to pay for PPE. In1978, however, several substance-specific health standards promulgatedunder section 6(b) of the OSH Act (i.e.,promulgated using the full rulemakingprocess with public participation andcomment) required employers to pay forPPE. Since that time, all OSHA healthstandards have explicitly requiredemployers to pay for required PPE.

However, the safety standardspromulgated under section 6(b) of theOSH Act have not been consistent withrespect to the employer’s responsibilityto pay for PPE. Several of these

standards require the employer to‘‘provide’’ PPE, but do not explicitlystate that the employer must pay for it.Other standards specifically require theemployer to pay for all PPE. Onestandard, Logging Operations(§ 1910.266), requires the employer topay for all PPE, with the exception oflogging boots. The following areexamples of OSHA’s current PPErequirements.

Telecommunication standard.Paragraph (e) of § 1910.268 requires theemployer to provide personal protectiveequipment, protective devices andspecial tools. However, this provisiondoes not specifically state that theemployer must pay for the PPE, eventhough it is common practice in thetelecommunications industry for theemployer to pay for all PPE except forsafety-toe protective shoes (see theRegulatory Impact Analysis for thatstandard).

Electric Power Generation. Paragraph(g)(1) of § 1910.269 requires PPE to meetthe requirements of subpart I of part1910, but does not specify that theemployer must pay for the PPE.

Maritime standards. Paragraph (a) of§ 1915.152 (Shipyard standards)requires the employer to provide andensure the use of PPE, but does notclearly state that the employer isrequired to pay for it.

Identical PPE standards apply tomarine terminals (part 1917) andlongshoring (part 1918). They state, inpart: ‘‘The employer shall ensure thateach affected employeewears* * *[PPE].’’ Again, theregulatory text does not state that theemployer is required to pay for the PPE.However, the preamble to the marineterminals and longshoring standardsdoes give guidance with respect to thepayment for PPE issue (62 FR 40186–87):Although the equipment used in marinecargo handling operations often differs fromthat mentioned in the October 18

memorandum [OSHA Policy Memorandum,October 18, 1994] the same policyconsiderations apply in the Longshore andMarine Terminals standard PPE context.Therefore, OSHA will apply the above-statedpolicy when determining whether theemployer is required to pay for a particularkind of PPE.

Therefore, OSHA’s enforcement policyfor marine terminals and longshoringrequires employers to pay for all PPEexcept for safety-toe protective shoesand prescription safety glasses.

Subpart I of part 1910. On April 6,1994, OSHA revised its general industrystandards for PPE (59 FR 16362) andadded new provisions for hazardassessment and training. The Agencyhad not proposed a requirementconcerning the employer’sresponsibility to pay for PPE, and thesubject was not an issue during therulemaking.

Permit-required confined spaces(§ 1910.146). This standard specificallyrequires the employer to pay for PPE. Itrequires the employer to provide theequipment (including PPE) necessaryfor safe entry into, and rescue from,permit spaces at no cost to employees,to maintain the equipment properly,and to ensure its proper use byemployees.

Logging operations. During thelogging rulemaking, OSHA proposedthat the employer provide PPE andassure its use. OSHA’s intent was thatthe employer provide all PPE at no costto employees. However, somecommenters asserted that employersshould not have to pay for all types ofPPE used in logging operations.

After careful analysis of therulemaking record, the Agencyconcluded that the employer should berequired to pay for all PPE except forlogging boots. OSHA noted that loggingboots are customarily worn outside theworkplace; are individually-fitted andtherefore not usable by another



employee; and are used in an industrythat has a high turnover rate.

E. Advisory Committee on ConstructionSafety and Health

The Advisory Committee onConstruction Safety and Health(ACCSH) assists OSHA by providingcomments and recommendations onproposed construction standards.Accordingly, the Agency providedACCSH with the following draftrevision of § 1926.95:

(d) Payment for Protective Equipment. Allprotective equipment, including personalprotective equipment, required in this part,shall be provided by the employer at no costto employees except for safety-toe protectivefootwear and prescription safety eyewear.

ACCSH considered the proposedlanguage at its meeting on April 8, 1998.

ACCSH members expressed severalconcerns about the proposed language.Some members expressed the view thatmany employers were already payingfor safety-toe shoes through collectivebargaining agreements and that the newtext might discourage them fromcontinuing to do so (Tr. 53, 61).

Members also noted that prescriptionglasses are sometimes incorporated intorespirator facepieces and wouldtherefore be impractical for workers touse at home. They therefore asked whyemployers should not pay for thatprescription eyewear (Tr. 47).

Other members of the committeementioned the problem of employeeswho did not always bring their safetyequipment to work. They noted that itwould be expensive for an employer tohave to replace that equipmentfrequently (Tr. 51–52).

Two resolutions were introduced. Thefirst stated:All protective equipment, including personalprotective equipment, required in this part,shall be provided by the employer at no costto the employees.

That resolution failed by a 6 to 7 vote.The second resolution introduced

read as follows:The language currently in 1926.95 regardingpersonal protective equipment, is effectiveand is sufficient to protect the worker andprovide the personal protective equipment.(We) recommend leav(ing) the language as iscurrently stated in 1926.95 (Tr. 62).

That resolution passed by a 6 to 2 vote.Based on the recommendations and

discussion of ACCSH, the Agencyrevised the draft regulatory text toreflect many of the Committee’sconcerns. OSHA is proposing therevised proposed regulatory text forgeneral industry and maritime as well asthe construction industry.

The Agency believes that the UnionTank decision has undercut OSHA’s

ability to enforce the standard asoutlined in the 1994 memo. Asdiscussed below, the proposed ruleincorporates much of the 1994 memointo the text of the Agency’s variousprotective equipment standards. OSHAbelieves that this action will carry outthe recommendations of ACCSHeffectively.

The proposed regulatory text nowmakes clear that the employer is notrequired to pay for safety-toe protectivefootwear and prescription safetyeyewear unless: (1) The employer doesnot permit it to be worn off-site; (2) thefootwear or eyewear is rendered unsafefor use off-site; or (3) the footwear oreyewear is designed for special use onthe job. For example, contaminatedsafety-toe footwear would not bepermitted to be worn off the job-sitebecause it would be unsafe to do so, andprescription eyewear mounted inside afull-facepiece respirator would not bepermitted for use off the job-site becauseit is designed for special use on-site.Consequently, the employer would berequired to pay for the PPE in these twoexamples.

OSHA intends to require employers topay for the initial issue of PPE and forreplacement PPE that must be replaceddue to normal wear and tear oroccasional loss. Only in the rare caseinvolving an employee who regularlyfails to bring employer-supplied PPE tothe job-site, or who regularly loses theequipment, would the employer bepermitted to require the employee topay for replacement PPE.

F. Explanation of Proposed RequirementOSHA is proposing to add the

following language to its generalindustry standards as § 1910.132(h):All protective equipment, including personalprotective equipment (PPE), required in thispart, shall be provided by the employer at nocost to employees.

Exception: The employer is not required topay for the logging boots required by 29 CFR§ 1910.266(d)(1)(v). The employer is also notrequired to pay for safety-toe protectivefootwear, or for prescription safety eyewear,provided that all three of the followingconditions are met: (1) the employer permitssuch footwear or eyewear to be worn off thejob-site; (2) the footwear or eyewear is notused at work in a manner that renders itunsafe for use off the job-site (for example,contaminated safety-toe footwear would notbe permitted to be worn off a job-site); and(3) such footwear or eyewear is not designedfor special use on the job.

OSHA is proposing to add the samelanguage (except for the first sentence ofthe exception, which applies only to thegeneral industry workplaces covered bythe logging standard) as shipyard§ 1915.152(f) as marine terminal

§ 1917.96, as longshoring § 1918.106,and as construction § 1926.95(d).

The purpose of this language is tomake clear that employers must provideand pay for all necessary PPE whereversuch PPE is required by an OSHAstandard, with the exceptionsmentioned. The reasons for thisproposal have been discussed above andare also found in the LegalConsiderations section of this preamble,above.

The proposal is intended to coverevery situation where an OSHAstandard requires the use of PPE. OSHApreliminarily concludes that all thereasons why employers should provideand pay for PPE apply generally to alltypes of PPE. In other words, thereasons why an employer is in the bestposition to purchase the correct typeand quality of wire mesh gloves toprevent finger lacerations also apply tothe selection and purchase of the correcttype and quality of fall protectionharnesses and lanyards, respirators, andmetatarsal foot protection. As noted, theproposal does contain exceptions andconditions to these exceptions. OSHArequests comment on whether othertypes of PPE should be excepted fromthe employer-payment principle and ifso, why.

The proposed payment requirementin § 1910.132(h) applies to ‘‘allprotective equipment required in thispart.’’ For example, part 1910 containsmany different requirements for the useof PPE throughout general industry (seeTable 2, above). Although the proposedregulatory language would be insertedonly in § 1910.132 (which is in subpartI of part 1910), OSHA intends thatemployers pay for all PPE requiredthroughout part 1910.

OSHA does not believe it necessary tospecify in the proposed regulatory textthat the employer ensure that employeesuse the required PPE and maintain itappropriately, because these conceptsare already clearly stated in most ofOSHA’s PPE requirements. OSHArequests comments on the adequacy ofthis approach, and whether employeeuse and maintenance of PPE should bespecifically required.

As discussed previously, some PPErequirements already include specificlanguage requiring the employer toprovide and pay for PPE (e.g., thelanguage used in most healthstandards), while others use moreambiguous language. OSHA intends theproposed new language to cover all ofthe Agency’s PPE requirements. OSHAbelieves that this approach will makethe obligations of employers clear withregard to the provision and payment forPPE. The proposed language does not



affect or limit the ‘‘provide-and-pay’’language in those regulatory provisionsthat already clearly state thisrequirement, such as 29 CFR1910.266(d)(1)(v), 29 CFR1910.1029(h)(1), 29 CFR 1910.146(d),and 29 CFR 1910.134(c).

The proposed provide-and-paylanguage also allows a reasonable degreeof compliance flexibility. For example,the proposed language would permit anemployer to send an employee topurchase appropriate PPE at a supplystore if the employer paid for theemployee’s time and paid for the PPE.

The proposed requirement would alsomake the employer responsible toprovide, and pay for, replacement PPEwhen the original PPE wears out fromnormal wear and tear or in the event ofoccasional loss or accidental damage bythe employee. However, if an employeeregularly and with unreasonablefrequency loses or damages the PPE, theemployer may request that the employeepay for the replacement PPE. This issuewas discussed at the ACCSH meeting, asnoted earlier. It is also important to notethat current OSHA PPE standards (e.g.,§ 1910.132(f)(1)(v)) already require theemployer to train employees in theproper care, maintenance, and usefullife of PPE.

ExceptionsFor the reasons discussed above,

OSHA has preliminarily concluded thatthe Agency needs to codify the generalprinciple that employers must bothprovide and pay for PPE. However, theAgency is also proposing exceptions tothat rule. OSHA is not proposing torequire employers to provide, or pay for,safety-toe protective footwear orprescription safety eyewear providingthat the following three conditions aremet: (1) the employer permits thefootwear or eyewear to be worn off-site;(2) the footwear or eyewear is used onthe job in a manner that does not makeit unsafe for off-site use; and (3) thefootwear or eyewear is not designed forspecial use on the job. In addition, asthe current rule provides, generalindustry employers are not required topay for the logging boots required by 29CFR 1910.266(d)(1)(v).

Safety-toe protective footwear (safetyshoes). This discussion of safety shoespertains only to safety-toe protectivefootwear. It does not pertain to othertypes of foot protection, such asmetatarsal or cut-resistant protectiveboots. (Logging boots are discussedbelow.)

OSHA considers safety shoes to bepersonal in nature. That is, safety shoesare 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 notgenerally used by other employeesbecause of size and hygienic concerns.In addition, employees often wear safetyshoes away from the job-site.

Safety shoes are widely available andare not difficult for the employee toselect and purchase. Evidence presentedin the Preliminary Economic Analysisalso shows that it is customary in someworkplaces for employees to pay fortheir safety-toe footwear. In addition,the OSHA policy memorandum of 1994generally excepted safety-toe safetyshoes from the employer paymentrequirement. For these reasons, OSHA isnot proposing to include safety-toesafety shoes in the employer paymentrequirement if all three of the conditionsare met.

Thus, the proposed exception wouldnot apply to metatarsal protection(metatarsal guards or protectivefootwear that incorporates metatarsalprotection) or special cut-resistantfootwear because these kinds offootwear are not generally used off theworksite, and employers often re-issuemetatarsal guards and cut-resistantfootwear to subsequent employees.Also, the proposed exception would notapply to any safety-toe safety shoe thatcannot safely be worn off the worksite.For example, the exception does notinclude safety shoes that have beenworn in a regulated area where theymay have been contaminated with atoxic substance. Employers mustcontinue to provide and pay for thesesafety shoes because they are not safefor use off-site. However, the exceptiondoes not prohibit employers frompaying for safety-toe safety footwear ofany type, if they choose to do so.

Prescription safety eyewear. OSHAalso considers prescription safetyeyewear to be personal in nature.Prescription safety eyewear is, of course,designed for the use of a singleindividual. Other types of protectiveeyewear, such as goggles, generallyremain at the job-site and can becleaned and reissued for use by otheremployees.

Prescription safety eyewear is usuallyused both on and off the job-site.Additionally, regular prescriptionglasses can be worn underneath gogglesand other protective eyewear that hasbeen designed to accommodate them.Therefore, in this situation OSHAbelieves that employers should berequired to pay only for the protectivegoggles. Employees can then decideeither to purchase their ownprescription safety glasses or to weartheir own prescription glassesunderneath the protective eyewear

provided by the employer. Additionally,the employer may agree to pay all orpart of the cost of prescription safetyeyewear. However, the employer mustpay for any prescription eyewear that ismounted inside the full-facepiece of arespirator, because such eyewear wouldfall under the ‘‘special use’’ condition ofthe proposed rule (this is also clearlyrequired by the respirator standard).OSHA’s position on this issue isdiscussed below in the Issues Section ofthis preamble.

The Agency realizes that there may bedifferent opinions with respect to thisproposal. Some may argue that requiringemployers to pay for all PPE (includingsafety shoes and prescription safetyeyewear) may lead to more employeeswearing PPE and, consequently, mayenhance employee safety. The IssuesSection, below, requests comment onthis issue.

OSHA emphasizes that payment forsafety-toe footwear and prescriptionsafety eyewear can be negotiatedbetween management and labor. Also,this proposed rulemaking is notintended to affect any collectivebargaining agreements, or any otherresponsibility to pay for safety-toefootwear and prescription safetyeyewear in particular workplaces.

The Agency also emphasizes that thisproposed rulemaking does not changethe employer’s obligation under the Actto ensure that all PPE, includingemployee-owned PPE, is worn whennecessary, is adequate to protectemployees from the hazard, and isproperly maintained. If the employeechooses to furnish his or her personally-owned PPE, this rule does not requirethe employer to reimburse the employeefor the cost of that equipment.

This proposed revision specificallyrestates the exception to the ‘‘employerpays’’ principle contained in the OSHAstandard for logging operations(§ 1910.266(d)(1)(v)), which specifiesthat the employer is not required to payfor a certain type of foot protection (footprotection constructed of cut-resistantmaterial to protect employees whooperate chainsaws, etc.). OSHAconsidered that issue at length in thelogging rulemaking and concluded thatthe evidence supported excluding thattype of footwear from the generalobligation that logging employers payfor logging PPE. See the discussion at 59FR 51683–4 (Oct. 12, 1994).

V. Issues Pertaining to the ProposedRule

OSHA requests comments, views, anddata on all issues relevant to theproposed rule, including the following:



1. OSHA also considered proposingthe following alternative regulatory text:The employer shall provide, at no cost to theemployee, all protective equipment andpersonal protective equipment except forprotective equipment which the employerdemonstrates is personal in nature andcustomarily used off the job.

This provision is stated in generallanguage and would have the advantageof providing some flexibility for specificworkplace situations involving PPE.However, a major disadvantage of thisapproach is that it uses the terms‘‘personal in nature’’ and ‘‘customarilyused off the job,’’ which OSHA wouldneed to define and interpret. OSHA’sproposed exception, which is morespecific than the text of the alternativediscussed above, provides greatercertainty to employers and workers.

OSHA requests comments on themerits of both approaches, includingviews on how OSHA should interpretthe regulatory text.

2. Are there other types of PPE, besidesafety-toe safety footwear andprescription eyewear, that should beexcepted from the proposed paymentrequirement? Why or why not? Pleasesubmit any available supportingdocumentation. Alternatively, shouldOSHA require employers to pay for allPPE, including safety-toe footwear andprescription safety eyewear? Why orwhy not?

3. OSHA realizes that there is frequentturnover in the construction industry,where employees frequently move fromjob-site to job-site. This is an importantfactor because an employer with a high-turnover workplace would have to buyPPE for more employees if the PPE wasof the type that could only be used byone employee. OSHA requests commenton whether its proposed exceptions forsafety-toe footwear and prescriptionsafety eyewear are appropriate in theconstruction industry. Are there anyother approaches to handle the turnoversituation that would be protective ofconstruction workers? Are there anyother issues unique to the constructionindustry that should be considered inthis rulemaking?

4. The longshoring and marineterminal industries have a uniqueemployer-employee relationship inmany ports. At some ports, employeesare hired for a job through a labor pool,and the same employee may work for 5different employers in the same week.How do these factors affect the issue ofwho is required to pay for PPE? Does theemployer customarily pay for PPE in themaritime industry? Are there any otherissues unique to the maritime industrythat OSHA should consider in thisrulemaking?

5. OSHA requests comments,information, and data on whetheremployee-owned PPE is less protectivethan employer-provided PPE, and underwhat circumstances.

6. The proposal covers protectiveequipment and personal protectiveequipment used in welding, includingprotective gloves. Does welding PPEcreate any unique problems on the PPEpayment issue? Does the employeeusually pay for welding PPE?

7. If an employee wants to use morecostly PPE because of individualpreference, should that employee beresponsible for any difference in cost? Isthere evidence that such‘‘individualized’’ PPE has caused safetyproblems in the past?

8. Full-facepiece respirators present aunique problem for employees whoneed prescription glasses. The templesof the prescription glasses break theface-to-face piece seal and greatlyreduce the protection afforded by therespirator. Special glasses and mountsinside the facepiece of the respirator aresometimes used to provide an adequateseal. Because of this special situation,OSHA believes that it is appropriate forthe employer to provide and pay for thespecial-use prescription glasses usedinside the respirator facepiece. Is itcommon industry practice foremployers to pay for these specialglasses? What is the typical cost forproviding ‘‘insert-type’’ prescriptionglasses inside full-facepiece respirators?

9. OSHA’s Preliminary EconomicAnalysis has found that this proposalwill not impose significant impacts onfirms in any industry segment or onaffected small businesses. OSHArequests comments on the analysis andon any industry or subindustry that mayhave particular economic problems as aresult of the proposed rule.

10. Should the standard require theemployer to pay for inserts or otherarticles that are uniquely personalizedcomponents of personal protectiveequipment, such as head coverings usedunder welding helmets and customprescription lens inserts worn under awelding helmet or a diving helmet?

11. OSHA intends to requireemployers to pay for the initial issue ofPPE. Should employers also be requiredto pay for PPE that must be replaced dueto normal wear and tear or occasionalloss?

12. OSHA requests comments on theconclusions about the costs and benefitscontained in the Preliminary EconomicAnalysis section.

VI. Preliminary Economic AnalysisIt has been determined that this is a

significant regulatory action under E.O.

12866, and a major rule under theCongressional Review provisions of theSmall Business Regulatory EnforcementFairness Act.

IntroductionOSHA has prepared this Preliminary

Economic Analysis to examine thefeasibility of the proposed rule onEmployer Payment for PersonalProtective Equipment and to meet therequirements of Executive Order 12866and the Regulatory Flexibility Act (asamended). The proposed rule wouldrequire employers to pay for protectiveequipment, including personalprotective equipment (PPE), whenOSHA standards mandate thatemployers provide such equipment totheir employees. The only PPEemployers would not be required to payfor in certain circumstances are safety-toe footwear and prescription safetyeyewear. OSHA is proposing to exceptPPE of these types providing that thesetypes of PPE meet three conditions: (1)The employer permits them to be wornoff-site; (2) they are not used on-site ina manner that renders them unsafe foruse off-site; and (3) they are notdesigned for special on-site use. Loggingboots are also specifically excepted fromemployer payment by 29 CFR1910.266(d)(1)(v).

OSHA’s requirements for PPE (again,OSHA is using the abbreviation ‘‘PPE’’to cover all protective equipment,(including personal protectiveequipment) appear in many health,safety, maritime, and constructionstandards. In some cases, the standard isexplicit in stating that employers are toprovide the PPE at no cost to theemployee (see, for example, OSHA’ssubstance-specific health standards,which are codified in Subpart Z of 29CFR 1910.1000). In other cases,however, such as in paragraph (a) of 29CFR 1910.132 and paragraph (a) of 29CFR 1926.28, who is required to pay forthe PPE is not expressly specified. (Fora complete list of OSHA’s PPErequirements, see the Summary andExplanation for the proposed standard,above.)

The proposed rule would apply togeneral industry, construction, andmaritime workplaces covered by thePPE provisions in existing OSHAstandards.

The rule would clarify OSHA’s intentthat, with the exceptions noted,employers provide required PPE to theiremployees at no cost to thoseemployees. The kinds of PPE addressedby OSHA’s PPE standards include, forexample, hard hats, safety shoes, gloves,safety glasses, goggles, faceshields,welding helmets and goggles, fall



4 Some of the results from this survey were usedin OSHA’s background report in support of its 1994PPE Regulatory Impact Assessment (OSHA 1994).

5 For workers in some occupations, such asstructural metal workers and roofers, all employeeswere assumed to use fall protection, clearly anoverestimate. For workers in other occupations, 10–20 percent were assumed to use fall protection.

protection equipment, and chemicalsuits. (A more detailed list of the kindsof PPE covered appears in the Summaryand Explanation, above.)

Industry Profile

The proposed rule is concerned onlywith who pays for OSHA-required PPE;that is, it would not require employersto provide PPE where none has beenrequired before. Instead, the proposedrule merely stipulates that required PPEbe paid for by the employer, except inthe case of safety-toe footwear andprescription safety eyewear that meetsthe three proposed conditions. In otherwords, the required PPE is currentlybeing paid for either by the employer orthe employee. The proposed rule wouldshift the costs of that portion of the PPEcurrently being paid for by theemployee (except for safety-toe footwearand prescription safety eyewear meetingthe proposed conditions) to theiremployers, as has been OSHA’s intent.(See the Legal Considerations section ofthe preamble, above, for details ofOSHA’s legal interpretation of thisissue.) To the extent that this rule hasthe effect of improving the quality ofPPE being used or of ensuring that PPEis being used where it has notpreviously been used, such improvedcompliance would result both inadditional benefits and costs to theeconomy. Nevertheless, to determinethe extent of PPE usage and thepotential magnitude of any shift incosts, OSHA has developed a profile ofindustry PPE use and payment patterns.

Data on PPE Usage Patterns

The data relied on to develop thisindustry profile derive from a number ofsources, although the Agency relied onsurvey data for its estimates of usepatterns for most types of PPE. Themain source of information on PPE usepatterns for general industry was atelephone survey of more than 5,000employers conducted by OSHA in 1989(ERG 1998), in support of the Agency’s1994 PPE rulemaking.4 The surveyyielded industry- and size-class-specificPPE use information for nearly allindustries affected by that rulemakingand the current one. The surveyprovided information on PPE use inshipyards, within the context of SIC 37,Transportation Manufacturing. It did

not, however, survey the constructionindustry.

Data on usage patterns in theconstruction industry derive primarilyfrom a study done for the Office ofTechnology Assessment (OTA 1984) in1982 by Springborne Associates. In thissurvey of employers, OTA providedestimates of the number of constructionworkers using various types of PPE. Aswith the 1989 PPE survey, the Agencyassumes that the patterns of PPE usage(percentage of employees using PPE)within sectors of the constructionindustry have remained constant. TheAgency believes that this is a reasonableassumption, in part because OSHA’sconstruction rules governing PPE usagehave remained the same since 1972.Further, the OTA survey reported thatseveral types of PPE (e.g., hard hats,gloves, eye protection) are used byvirtually all construction workers; thusit would be impossible for usage ofthese types of PPE to have increasedsignificantly over time. The generalassumption that PPE usage patternshave not changed significantly over timeis supported by a recent OSHA analysisof respirator use patterns conducted forthe Agency’s final rule for respiratoryprotection (63 FR 1172, January 8,1998). This analysis shows thatrespirator usage patterns have notchanged substantially from those shownin the OTA report. A comparison of theOTA data for several other types of PPE(e.g., gloves, eye protection, faceshields,safety shoes and hard hats) with usagedata from the 1989 PPE survey alsoindicated no clear shift in usage forthese types of PPE. Thus, OSHAbelieves that these estimates of PPEusage in construction are reasonable.However, as will be discussed furtherbelow, OSHA is conducting a survey togather more up-to-date information onPPE use and payment. This survey willbe used to update the estimates of usageof PPE in construction.

To confirm the overall accuracy of thesurvey data on PPE use in construction,the Agency contacted several PPEdistributors to obtain information on themarket share for various PPE items inthe construction industry, as comparedto market share in other sectors.Comparing OSHA’s estimates of thepercentage of PPE costs attributable toconstruction with the distributors’estimates of the share of PPE salesoccurring in the construction industryshows that OSHA’s estimates of PPE usein construction are correct and may, if

anything, be high. If OSHA’s estimatesare high, this analysis would tend tooverstate the potential costs and impactsof the proposed rule on the constructionindustry. For example, OSHA’s analysisestimates that approximately 25 percentof the costs of all PPE occur in theconstruction sector, while thedistributors indicated that theconstruction sector accounted for 20percent of the value of PPE sales.

Estimating use patterns for somespecific types of PPE requiredadditional analysis. For example, theOTA survey did not collect data on fallprotection PPE. The number ofemployees using fall protection inconstruction was estimated from ananalysis of occupational categories,based on data from BLS’s 1994Occupational Exposure Survey (OES) 5.Additionally, the OES data allowedOSHA to estimate the number ofworkers requiring welding equipment inconstruction and in some industries notcovered by the 1989 PPE survey (i.e.,SICs 15, 16, 17, 46, 47, 59, 73, 87 and89). Finally, because the OTA surveydid not have data on the extent of theuse of shoes with metatarsal guards,OSHA relied on the 1989 PPE surveydata, which show that about 11 percentof all safety shoes have metatarsalguards; this percentage was applied tothe OTA estimates of safety shoe usageto estimate metatarsal guard usage in theconstruction industry.

Table VI–1 shows OSHA’s estimatesof the extent of PPE use in the industriescovered by the proposed rule. A total of19.6 million workers are estimated towear one or more kinds of PPE in theseindustries. Non-prescription safetyglasses are worn by approximately 6.7million workers, while 7.7 millionworkers wear hard hats and 10.6 millionwear protective gloves of various kinds.Industries with the largest number ofPPE-wearing employees includeconstruction 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-durablegoods (SIC 51), with 1.2 million PPE-wearing employees.BILLING CODE 4510–26–P



BILLING CODE 4510–26–C



Data on PPE Payment PatternsTo derive estimates of current

employer payment patterns with regardto PPE, the Agency consulted severalsources: a national study of collectivebargaining agreements (BNA 1995),information from OSHA’s State-planStates, information from OSHA’s 1989PPE survey (ERG 1998), and a panel ofexperts on PPE payment patterns (ERG1998).

The data available to OSHA suggestthat most employers in OSHA’sjurisdiction are already paying for thePPE they provide to their employees tocomply with OSHA standards. They doso because of labor-managementagreements and collective bargainingcontracts, and for other obvious reasons:if they pay for the PPE, they know whatkinds of PPE their employees are using,can ensure that it is replaced whenneeded, and can require standardizedprocedures for cleaning, storing, andmaintaining it. In other words, they cancontrol what PPE is used and how it isused, and thus can have greaterassurance that they are in fact incompliance with OSHA’s standards.Other reasons why employers prefer topay for PPE, according to the expertpanel convened by OSHA to obtaininformation on PPE patterns of use andpayment, are:

• The employer has experience withinjuries that could have been preventedby PPE use;

• The employer has received inputfrom his/her insurance carrier;

• The employer’s staff and employeesare aware of job-related hazards andknow about PPE use; and

• The employer is concerned aboutthe likelihood of an OSHA inspection(ERG 1998).

A recent study of collectivebargaining agreements showed that 55%of contracts mentioning safetyequipment require employers to pay forPPE, while only 11% of suchagreements require the employee to pay

for any PPE; this latter figure includespayment for all kinds of safety shoes. Inaddition, nearly half of all U.S. workerswork in States covered by OSHA Stateplans. These States generally requireemployers to pay for mandatory PPE,with the exception, in some cases, ofsafety-toe footwear and prescriptionsafety glasses. For example, Kentucky,which operates its own OSHA programunder an approved State-plan, requiresemployers to pay for all required PPEexcept that which is personal in natureand is also used off the job. Californiahas required employers to pay for allPPE, without exception, for many years.OSHA is currently reviewing the PPEpayment policies of all of its State-planpartners; to date, all of the State plansresponding have a policy of requiringemployers to pay for most PPE items.

To develop detailed estimates ofsectoral patterns of PPE payment, OSHArecently sponsored an expert panel ofindividual representatives fromindustry, labor, insurance companies,and safety equipment manufacturersand distributors. These individuals arerecognized for their knowledge of PPEuse and purchasing patterns in thegeneral industry, construction, andmaritime sectors. Many panelistsindicated that the kinds of PPE thatcould potentially be affected by theproposed rule, i.e., those where a shiftin costs from employees to employerscould potentially occur, were hard hats,gloves, safety glasses (non-prescription),goggles, safety shoes (other than safety-toe safety shoes), welding hoods andgoggles, faceshields, fall protectionequipment, and chemical protectiveclothing. Based on the responses ofindividual members of the panel, thisindustry profile includes all the majortypes of PPE identified as having suchpotential. However, the Agency solicitscomments on any types of PPE notincluded in this analysis, the extent ofthe use of such PPE in each affectedindustry, and the extent to which

employers do not currently pay for suchPPE, in each affected industry.

Table VI–2 summarizes the findingsof the expert panel, which are presentedas the percentage of all PPE costscurrently estimated to be borne byemployers, by industry and type of PPE.The table reports the median response,i.e., the median percentage reported bythe experts in each case, except formanufacturing, where the panelestimated that 100% of costs for theaffected kinds of PPE are being borne byemployers (OSHA has reduced this to95% to be conservative) and the serviceindustries (where OSHA assumed thatthe percentages attributed by the expertsto the wholesale trade industry wouldbe applicable to all service industries).The panel’s estimates of the percentageof PPE costs currently being borne byemployers were generally highest formanufacturing and transportation andlowest for construction and shipyards,although estimates even within theseindustries varied widely by type of PPE.For example, the panel estimated that87% of employers in the transportationindustry currently pay for non-prescription safety eyewear, while91.5% percent of these employerscurrently pay for chemical protectiveclothing. In construction, where thepattern of employer payment for PPE isgenerally lower than for otherindustries, 70% of employers areestimated currently to pay for non-prescription safety eyewear, while only50% pay for gloves to protect againstabrasion and laceration.

OSHA believes that Table VI–2generally presents an accurate picture ofcurrent PPE payment patterns in variousindustries at the present time,comporting with the Agency’s ownexperience. Thus the proposed rule,rather than representing a departurefrom current practice, will largely reflectit.BILLING CODE 4510–26–P






6 The number of injuries resulting from the lackof appropriate PPE can be determined by examiningboth the likelihood of employers not providing PPEunder the two payment scenarios, and data on thecurrent pattern of payment for PPE. The equationfor a particular body part and relevant type of PPEcan be described this way:

((.4Ep/(.4Ep + .175En)) × total PPE-preventableinjuries = # injuries among employees paying fortheir own PPE Where:

Ep = # of employees paying for their own PPEEn = # 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 numberof injuries preventable by reassigning paymentresponsibility to the employer. Once the number ofinjuries among the employee-paying group isderived, it has to be recognized that not all of these

Continued

In order to further ensure that theAgency has accurate data on currentpatterns of PPE payment and usage,OSHA is conducting a nationwidetelephone survey of Americanworkplaces dealing specifically withthat question. The Agency intends tohave the results available for review andcomment before the final rule ispublished. The information from thesurvey will be used to modify andupdate this economic analysis asneeded with respect to both PPE usepatterns (Table VI–1) and PPE paymentpatterns (Table VI–2). When the PPEsurvey is completed, OSHA will reopenthe record to enable the public tocomment on the results.

Technological FeasibilityThis rule does not change any PPE

requirements, but affects only the issueof who pays for PPE. All of the PPEaffected by this rulemaking has alreadybeen found to be technologicallyfeasible in other rulemakings. Personalprotective equipment is widelymanufactured, distributed, and used inworkplaces in all of the industriescovered by OSHA standards. Theproposed rule thus raises no issues oftechnological feasibility.

Benefits of the Proposed RuleBoth OSHA’s own enforcement

experience and the experience ofmembers of OSHA’s expert panel showthat when employers do not provideand pay for PPE, it is often not worn, isworn improperly, or is not cared for andreplaced appropriately. In the words ofone panel member:

Our experience has been that the biggestfactor in determining proper, effective use ofeye protection is effective supervision—if thesupervisor leads by example; if he/shereinforces use of eye protection by theworkers under his/her supervision; if he/shehas replacement eye protection readilyavailable when it gets scratched or otherwisedamaged or lost—then there is more likely tobe a pattern of effective use among theworkforce. This is significantly more difficultto accomplish when employees are expectedto buy their own PPE. (It is not generallyfeasible to provide PPE and then charge theworkers for it.) . . . It is also difficult toensure that the employees are properlytrained in the care and use of PPE if theemployer does not provide it. (ERG 1998)

Thus, two key problems can occurwhen employers fail to pay for PPE:either the PPE is not worn in caseswhere it is needed to protect againstinjury or illness, or the PPE is worninappropriately. The consequences ofthese failures are the same: employeesare exposed to chemical, physical, orsafety hazards in the workplace, which,in turn, results in injuries, illnesses, and

death (as documented in OSHA’s recentrespiratory protection rule (63 FR 1152,January 8, 1998). Another panel membertried to estimate the quantitativedifferences between employer andemployee payment for PPE:

When employees are made responsible forpurchasing their own PPE, I believe that theirprobabilities of (1) actually purchasing PPE,and (2) purchasing appropriate PPE, arediminished because they must use some orall of their funds for this equipment, whereasthey would rather save this money for theirown purposes, and they simply don’t havethe resources to understand and chooseamong available PPE. There is always areluctance to use one’s own funds to pay forreplacing or repairing workplace PPE. Ibelieve that when employees are responsiblefor their own PPE that a higher incidence ofnon-use or misuse occurs. I would expectthat figure would be approximately 40% foremployee-purchased PPE versus 15 to 20%for employer-purchased PPE. (ERG 1998)

The estimates provided by this expertpanelist are consistent with thestatements of other panelists, as well aswith OSHA’s enforcement andregulatory experience. Most panelmembers indicated that if the employerdid not pay for PPE, the PPE was notprovided. To the extent that this is thecase, OSHA’s estimates may actuallyunderestimate the effects of havingemployers pay for and provide PPE. Toestimate the benefits of employer PPEpayment, OSHA used the panel’sestimates of the differences ineffectiveness between employee-paidand employer-paid PPE, and theestimates of the total numbers ofinjuries, illnesses and deathspreventable by PPE that were developedfor the 1994 PPE rulemaking. OSHAinvites comment from those withexperience in this area, to assist theAgency to refine, revise if necessary, orconfirm the accuracy of this estimate, asdiscussed below.

In 1994, OSHA examined, for eachbody part, the number of injuriespreventable by the then newly revisedPPE rule [59 FR 16352]. OSHA reviewed1,170 OSHA Form 200s describingalmost 64,000 injuries; these forms hadbeen submitted to OSHA in response tothe 1989 PPE survey. The profile ofinjuries, as defined by body part, veryclosely tracked those in BLS’s injurydata base [OSHA 1994, pp. V–11–13].Information on the nature of the injuryand the circumstances surrounding theaccident was used to determine theextent to which PPE would haveprevented the injury. Most injuries werenot considered preventable by PPE. Forexample, sprains and strains (nature), orinjuries caused by overexertion(circumstance), were considered not tobe preventable by PPE. Eye injuries, by

contrast, tended to be highlypreventable.

From these injury descriptions, it waspossible to determine thatapproximately one-third of injuries ingeneral industry were preventable withPPE. However, within this group, it wasapparent that PPE could be particularlyeffective in protecting certain bodyparts. As indicated in the 1994 analysis[OSHA 1994, p. V–16], eye injuries wereestimated to be 95 percent PPEpreventable; foot and toe, 75 percent;face and ear, 68 percent; and hand andfinger, 63 percent. Head injuries werejudged to be 45 percent preventable.Over 90 percent of these injuries wereincurred by production workers in thesubset of high-hazard industriesselected for study in the PPE survey; inother words, they reflect the sort ofpreventable process-related PPE injurieswhich § 1910.132 was intended toprevent. The full analysis of the injuriesjudged to be preventable through theproper use of PPE is presented in detailin the Regulatory Impact Assessment[OSHA 1994]. In that analysis, OSHAfound that almost 900,000 injuries inthe general industry and maritimesectors would be preventable by fullcompliance with the new PPE rule, i.e.,that 900,000 injuries could have beenprevented if employees had actuallyworn the appropriate protectiveequipment. This analysis did not coverthe construction sector. OSHA assumedthat the same preventability factorswould apply in construction as in thegeneral industry and maritime sectors.

For the analysis of the EmployerPayment for PPE rule, OSHA took intoconsideration the fact that compliancewith the rule will not be perfect and thatthe likelihood of full compliance isinfluenced by who pays for the PPE.Therefore, OSHA developed an estimateof the number of injuries, illnesses, anddeaths potentially averted by this ruleby combining the followinginformation: 6



will be preventable by switching payment systems.Since the number of injuries was derived assumingthat 60% of the employee-paying population isalready wearing PPE, the proper comparison isbetween the 40% nonusage in the employee-payingpopulation and the 17.5% nonusage in theemployer-paying population. Therefore, thepercentage of injuries remaining after switching toemployer-payment would be .175/.4 or 44 percentof the original number of injuries among theemployee-paying group. Thus, 1–0.175/.4 provides

the percentage prevented. In the abstract, thisequation is:

The number of injuries prevented by switching toemployer payment= (# of PPE-related injuriesoccuring among the employee-paying group) × 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, thisbecomes:

The number of injuries prevented by switching toemployer payment= (# of PPE-related injuries

occurring among the employee-paying group) × (1-(.175/.4))

In other words, 56 percent (1-(.175/.4)) of theseinjuries would be preventable by switchingpayment patterns from employees to employers.

This analysis has included only half of the PPE-related injuries occurring currently in the UnitedStates because approximately half of all employeesare already covered by employer paymentrequirements in State-plan States. This analysis alsofocuses only on those body parts, e.g., eyes, head,hand, foot, most likely to be protected by PPE.

(1) the number of injuries preventablethrough proper use of PPE, classified bytype of PPE (from 1994 economicanalysis);

(2) the expert panel member’sestimate that PPE will be missing orused inappropriately 17.5% of the timewhen the employers pay for theiremployee’s PPE;

(3) the expert panel member’sestimate that PPE will be missing orused inappropriately 40% of the timewhen employees pay for their own PPE;and

(4) the number of employees withemployer paid PPE (see the IndustryProfile section of this analysis).

Table VI–3 presents the number ofinjuries preventable by this rulemakingin general industry and construction, bybody part. This analysis indicates thatthe proposed rule would avertapproximately 47,785 injuries annually.

Although the primary benefit of theproposed rule is that it will avertinjuries and save their associated costs,there are cases where the lack of

appropriate PPE has been fatal. At thetime of the 1994 rulemaking, 24 fatalhead injuries were considered to bepreventable every year in generalindustry through the use of PPE. Basedon that analysis, the Agency estimatesthat 6.9 percent of these cases, or anaverage of 1.7 (.069 × 24) fatal headinjuries annually, will be averted by theproposed rule. According to BLS’sCensus of Fatal Occupational Injuries,there were 263 fatal head injuries in theconstruction industry in 1993, 44 ofwhich were coded as ‘‘struck by’’ or‘‘struck against.’’ Since a larger portionof employees pay for their own PPE inconstruction, the impact of the proposedrule is likely to be greater inconstruction than in general industry.OSHA therefore estimates that 12.7percent of these 44 fatalities arepreventable, for a total of 5.6 (44 × .127)averted fatal head injuries annually.Therefore, in general industry andconstruction, the Agency estimates thatapproximately 7 (5.6 + 1.7) lives could

be saved annually by compliance withthe proposed rule.

The Agency also believes that theproposed rule will achieve substantialbenefits in the area of fall protection,particularly in construction. Theproposal would prevent a number offatalities and severe injuries that arenow occurring either because employee-provided PPE provides inadequateprotection or because the employeearrives on site without the necessaryPPE. For example, OSHA estimated inthe Regulatory Impact Analysis forSubpart M that fall protection systemswould prevent nearly 80 fatalities and26,600 lost workdays annually. To theextent that employers provide moreeffective harnesses and lanyards thanthose currently being provided byemployees, or ensure that thisequipment is available for use by theemployee, this rule will avert deathsand injuries caused by falls. However, atthe current time the Agency does nothave sufficient detail on these accidentsto quantify the benefits of this effect.

TABLE VI–3.—INJURIES JUDGED TO BE PREVENTABLE IF EMPLOYERS ARE REQUIRED TO PAY FOR PPE NOW BEINGPAID FOR BY EMPLOYERS

Body part

Injuriesjudged to bepreventable

by PPE

Percent ofthose

judged to bepreventableby this rule-

making 1

Total judgedto be pre-ventable

and withinscope ofthis rule-making

Total inju-ries judgedto be pre-ventable

among em-ployees

paying forPPE

Injuriesjudged to be

preventedby requiring

employerpayment for

PPE

General IndustryEye .................................................................................................... 117,296 31.0 36,362 8,085 4,548Face & ear ........................................................................................ 36,810 50.0 18,405 4,427 2,490Head & neck ..................................................................................... 116,050 50.0 58,025 14,272 8,028Hand & finger .................................................................................... 281,221 50.0 140,611 30,771 17,309Foot & toe ......................................................................................... 129,452 5.5 7,120 4,109 2,311

Subtotal ......................................................................................... 680,830 .................... 260,522 61,665 34,686Construction:

Eye .................................................................................................... 25,524 31.0 7,912 3,824 2,151Face & ear & head & neck ............................................................... 13,445 50.0 6,722 3,027 1,703Hand & finger .................................................................................... 44,589 50.0 22,295 15,509 8,724Foot & 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 planStates; non-prescription safety glasses constitute approximately 62% of safety glasses; shoes with metatarsal guards account for 11% of all safe-ty shoes.

Source: OSHA Office of Regulatory Analysis.



7 The use of a simple average rather than apopulation-weighted average results in a lowerestimate of income loss and is thus a conservativeapproach.

8 Permanent ‘‘partial’’ disabilities include allpermanent disabilities, ranging from 1 to 100percent disabled.

Direct Savings Resulting From theReduction in Injuries Attributable to theProposed Rule

This section evaluates the directsavings associated with the injuriesaverted by the proposed rule; it does notattempt to place a monetary value onthe lives that will be saved bycompliance with the rule or on pain,suffering and other similar effectsavoided. These other effects ofoccupational injuries and illnessesinclude the pain and sufferingexperienced by workers and theirfamilies, loss of esteem, disruption offamily life, and feelings of anger andhelplessness. Occupational injuries andillnesses impose an enormous burdenon society in addition to the directoutlays of money for medical expenses,lost wages and production, and otherpurely economic effects.

Some aspects of the burden ofoccupational injuries and illnesses canbe quantified in monetary terms. Theseaspects of the problem of work-relatedinjuries and illnesses can be measuredby the losses experienced by employeesand by the other costs that areexternalized to the rest of society. Oneconsequence of the failure of PPEprograms to prevent job-related injuriesis the growth of enormously expensiveincome maintenance programs such asworkers’ compensation and long-termdisability programs. These costs imposea burden on society separate from andin addition to the human toll in painand suffering caused by workplace-related injuries.

One measure of some of the lossesassociated with lost time due to work-related injuries is the lost output of theworker, measured by the value themarket places on his or her time. Thisvalue is measured as the worker’s totalwage plus fringe benefits. Other costsinclude: (1) Medical expenses, (2) costsof workers’ compensation insuranceadministration, (3) indirect costs toemployers (other than those for workers’compensation administration), and (4)legal expenses of employees.

OSHA estimates the value of lostoutput by starting with workers’compensation indemnity payments andthen adding other losses associated withwork-related illnesses and injuries. TheAgency then follows four steps to arriveat a value for lost output:

(1) Calculate PPE-related illness andinjury in terms of workers’compensation indemnity payments;

(2) Add the difference between thevalue of these indemnity payments andthe worker’s after-tax income, based onvarious studies comparing workers’compensation payments with after-tax

income. This step estimates themagnitude of lost after-tax income;

(3) Add the estimated value of taxes,based on the typical value of taxes as apercentage of after-tax income. This stepestimates the value of total income lost;and

(4) Add the value of fringe benefits,based on data on fringe benefits as apercentage of total income. This stepestimates the total market value of thelost output.

In this approach, injuries are clearlyundervalued, because OSHA assumesthat the value associated with injuries isthe same as the value of claims forworkers’ compensation. An analysis ofworkers’ compensation claim data fromthe Argonaut Insurance Company for1993 show that the weighted averageclaim value of the injuries shown inTable VI–3 is $2,408. Based onnationwide estimates from the U.S.Social Security Administration, anaverage of 58 percent of these paymentsare paid out for indemnity, and theremaining 42 percent are paid out formedical costs [USSA, 1993].

Indemnity/Lost IncomeWorkers’ compensation indemnity

payments typically take two forms:temporary total disability payments,which cover absences from work priorto the stabilization of the condition, andpermanent disability payments, whichcompensate the worker for the long-termeffects of a stabilized condition. On anationwide basis, it is estimated thatpermanent disability payments accountfor 61.5 percent of all indemnitypayments [Berkowitz and Burton].

The extent to which income isreplaced by each type of indemnitypayment (i.e., temporary or permanent)differs. First, although rules vary byState, temporary disability income isdesigned in most States to replace two-thirds of the worker’s before-tax income.However, most States place a maximumand minimum on the amount of moneypaid out to the worker, regardless of his/her actual former income. Studies by theWorker Compensation ResearchInstitute (WCRI) show that temporarytotal disability payments replacebetween 80 to 100 percent of the after-tax income of the majority of workers[WCRI, 1993]. From 3 to 44 percent ofthe workers receive less than 80 percentof their after-tax income, and from 0 to16 percent receive more than 100percent of their after-tax income.Unfortunately, WCRI does not provideestimates of the average replacementrates for all workers in a State. However,based on these data, it seems reasonableto assume that, on average, workersreceive no more than 90 percent of their

after-tax income while on temporarydisability. On the other hand, data showthat permanent partial disabilitypayments replaced 75 percent of incomelost in Wisconsin, 58 percent in Florida,and 45 percent in California [Berkowitzand Burton]. OSHA uses the simpleaverage of these three—59 percent—toestimate the extent of after-tax incomereplacement for permanent partialdisabilities 7.

Based on these data, OSHA estimatedafter-tax income from the totalindemnities paid for injuriespreventable by the proposed rule byassuming, based on estimates for allworkers’ compensation claims providedby Berkowitz and Burton, thattemporary disabilities account for 38.5percent of all PPE-preventableindemnity payments and replace 90percent of after-tax income, and thatpermanent partial disabilities 8 accountfor 61.5 percent of PPE-preventableindemnity payments and replace 60percent of after-tax income.

Fringe Benefits

In addition to after-tax income loss,lost output includes the value of taxesthat would have been paid by theinjured worker and fringe benefits thatwould have been paid by the worker’semployer. Total income-based taxes(individual Social Security payments,Federal income tax, and State incometax) paid were assumed to be 30 percentof total income. Fringe benefits wereestimated as 39 percent of before-taxincome, based on the average fringebenefit data provided by BLS [BLS,1997].

Tables VI–4 and VI–5 apply theestimation parameters developed aboveto calculate the total value of the lostoutput potentially associated withtemporary and permanent partialdisabilities, respectively, once the finalstandard has been fully implemented.As shown, the total value of the lostoutput associated with potentiallyavoidable accepted workers’compensation claims that result intemporary total disability is estimated at$55.8 million, and that associated withpermanent partial disabilities at $129.7million a year.



TABLE VI–4.—VALUE OF LOST OUT-PUT ASSOCIATED WITH TEMPORARYTOTAL DISABILITIES RESULTINGFROM PPE-PREVENTABLE INJURIES

Type of benefit Injuries/costsprevented

Total Number of PPE-Pre-ventable Cases Annually .. 47,785

Weighted Average TotalCost 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 TotalDisability Indemnity Pay-ments 1 .............................. $25,689,814

Lost-After-Tax Income Abovethe Value of IndemnityPayments 2 ........................ $2,854,424

Lost Value of Tax Pay-ments 3 .............................. $11,866,247

Lost Value of Fringe Bene-fits 4 ................................... $15,426,122

Total ............................... $55,836,606

1 Number of cases X indemnity paymentsper case X 38.5 percent indemnity value shareattributable to temporary total disability.

2 Temporary total disability payments havebeen estimated to equal 90 percent of lostafter-tax income.

3 Taxes are estimated to equal 30 percent ofbefore-tax income.

4 Fringe benefits=39 percent of wage in-come [BLS, 1995].

Source: U.S. Department of Labor, OSHA,Office of Regulatory Analysis.

TABLE VI–5.—VALUE OF LOST OUT-PUT ASSOCIATED WITH PERMANENTPARTIAL DISABILITIES RESULTINGFROM PPE-PREVENTABLE INJURIES


Number of PPE-PreventableInjury Cases ...................... 47,785

Value of Indemnity Payments(Permanent Partial) 1 ......... $41,036,975

Lost-After-Tax Income Abovethe Value of IndemnityPayments 2 ........................ $28,517,220

Lost Value of Tax Pay-ments 3 .............................. $26,142,441

Lost Value of Fringe Bene-fits 4 ................................... $33,985,174

TABLE VI–5.—VALUE OF LOST OUT-PUT ASSOCIATED WITH PERMANENTPARTIAL DISABILITIES RESULTINGFROM PPE-PREVENTABLEINJURIES—Continued


Total ............................... $129,681,810

1 Number of cases prevented X indemnitypayments per claim X 61.5 percent valueshare attributable to permanent partial dis-ability.

2 Permanent partial disability payments areestimated to equal 59 percent of the value oflost after-tax income.

3 Taxes are estimated to be 30 percent ofbefore tax income.

4 Fringe benefits=39 percent of wage in-come (BLS, 1995].


Medical

Medical costs do not include any first-aid costs incurred by the employer and,in some cases, costs for transportation toa medical facility; however, mostelements of medical costs are includedin the share of payments paid formedical costs, estimated to be 42percent of the cost of the claims. Costsfor treating injuries will remainrelatively constant, regardless of who isactually paying for the medical care(i.e., the employer through workers’compensation, or a medical insurer). Aspresented in Table VI–6, OSHAestimates the medical costs of injuriespreventable by the proposed standard tobe $48.3 million a year.

TABLE VI–6. ANNUAL SOCIAL BENE-FITS ASSOCIATED WITH THE REDUC-TION IN INJURIES AS A RESULT OFEMPLOYER PAYMENT FOR PPE


Lost Output Associated withTemporary Disabilities 1 .... $55,836,606

Lost Output Associated withPermanent Disabilities 2 .... 129,681,810

Medical Costs 3 ..................... 48,319,399Insurance Administrative

Costs 4 ............................... 29,912,009Indirect 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 in-juries by the value of medical payments pre-sented in Table VI–4.

4 Calculated by multiplying the total value ofclaims times 26 percent.

5 Calculated by multiplying the total value ofworkers’ compensation medical and indemnitypayments times 20.8 percent.


Administrative Costs

The administrative costs of workers’compensation insurance include all ofthe costs associated with theadministration of workers’compensation insurance. Such costsinclude any funds spent directly onclaims adjustment, as well as all otheradministrative costs incurred by theinsurer in conjunction with experiencedlosses.

OSHA estimates the administrativecosts of PPE-related injury claims asfollows:

• Costs to private insurancecompanies are estimated, based on 1990data, as 35.8 percent of the costs ofincurred claims [Klein et al., 1993].These costs include those for claimsadjustment, sales, general expenses,taxes, licenses, and fees (historical datashow that all of these elements ofprivate insurance costs increase as thevalue of benefits paid out increases).

• Costs to State funds were estimated,based on 1990 data, as 17.8 percent ofthe costs of incurred claims [Klein et al.,1993]. These costs include those forclaims administration and for costslabeled as ‘‘general costs.’’

• Costs to self-insured companies,estimated by the Social SecurityAdministration to be 6.8 percent of thevalue of benefits paid in 1990 [SocialSecurity Administration, 1993].

To estimate the aggregate value of theadministrative costs of insurance, thesecosts are weighted by the value of thebenefits payments made by each type ofinsurer (i.e., private insurer, state fund,etc.), based on 1990 data. Thiscalculation is shown in Table VI–7,which indicates that estimated weightedadministrative costs constitute 26percent of the total value of claims. Thetotal value of claims includes the valueboth of the indemnity and medicalportions of insurance companypayments. The costs shown in Table VI–7 represent the administrative costsassociated with workers’ compensation.



9 Annualized costs, updated from those used inthe 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 bothhelmets and goggles at different times of the year.Welding helmets were assumed to have a lifeexpectancy of 5 years and to cost $32.00; weldinggoggles were assumed to be replaced every 3months, and to cost $11.00 (these assumptions yielda combined annualized welding unit cost of$51.80). Fall protection (body harness and lanyard)is assumed to have a life expectancy of 5 years, andto cost $60.00 (harnesses) and $60.00 (lanyards),respectively, yielding a combined annualized fallprotection unit cost of $29.27. Reusable chemicalprotective coveralls were assumed to have a lifeexpectancy of one year and to cost $20.00, basedon a current supply catalog (Lab Safety 1995).Safety shoes with metatarsal guards costapproximately $100 (ERG 1998); based on anaverage two year life (OSHA 1994) this yields anannualized cost of $55.17.

TABLE VI–7.—DERIVATION OF AVERAGE ADMINISTRATIVE COSTS AS A PERCENT OF THE VALUE OF CLAIMS, BY TYPE OFINSURANCE

Type of insurance

Administrativecosts as a per-centage of in-curred claims 1

(1990)

Percentage oftotal benefitspaid 2 (1990)

Weightedvalue

Private Insurance ......................................................................................................................... 35.5 58.1 20.6State Fund ................................................................................................................................... 17.8 22.8 4.1Self-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 falloutside the workers’ compensationsystem will typically haveadministrative costs associated withthem—indeed, to the extent they areborne by private medical insurers, theywill carry relatively greateradministrative expenses than theaverage estimated here.

Indirect CostsThe term ‘‘indirect costs’’, describes

the costs of work-related injuries thatare borne directly by employers but arenot included in workers’ compensationclaim costs. Such costs are bestestimated by looking at the costs anemployer actually incurs at the time aworkers’ compensation claim is filed.These costs include a number of socialbenefits, such as payments of sick leaveto workers for absences that are shorterthan the workers’ compensation waitingperiod, losses in production associatedwith the injured workers’ departure andreturn to work, losses in theproductivity of other workers, and awide variety of administrative costsother than those borne directly by theworkers’ compensation insurer, e.g.,medical management costs for theinjured worker. Based on a study [Hinze& Applegate] of indirect costs of injuriesin the construction industry, OSHAestimates that indirect costs are 20.8percent of the value of workers’compensation medical and indemnitypayments, i.e., add up to an indirectcost multiplier of 1.21. As indicated inTable VI–6, the Agency estimates thatthis proposed revision to the PPEstandard will save $23.9 millionannually in these indirect costs.

Taken in its entirety, the proposedamendment to the PPE standard isestimated to save $287.7 millionannually in direct costs savings byavoiding preventable injuries. Thesedirect cost savings do not include theeconomic value of the loss of leisuretime. They do not account for theburden of chores that are forced onother household members or hired out.The direct savings also do not includethe value of preventing pain andsuffering or loss of life.

Costs of ComplianceTo assess the costs employers may

incur to comply with the proposed rule,OSHA first estimated the total costsassociated with PPE currently coveredby OSHA PPE standards and affected bythis rule. OSHA’s estimates of the costsof all required PPE were derived fromthe PPE use estimates shown in TableVI–1, subtracting employees in Stateplan States, who, as indicated in theprevious section, compriseapproximately half of the affectedworkers. Unit costs for equipment weretaken from the Agency’s economicanalysis (Ex. 56, Docket S–060) insupport of the 1994 rulemaking thatrevised the personal protectiveequipment standard (29 CFR 1910.132).Data from that analysis weresupplemented with new estimates of theunit costs of welding equipment andgoggles, and of fall protectionequipment (ERG 1998). All costestimates were then updated to reflect1998 prices.9 This figure was then

multiplied by the percentage of thesecosts not currently being borne byemployers (see Table VI–2).

Table VI–8 shows the total annualizedcosts of compliance for the proposedrule, by industry and kind of PPE. Totalannualized costs are $61.9 million.Gloves and safety shoes (with metatarsalguards) account for the largest portion ofthese costs, at $17.3 and $14.3 million,respectively; welding helmets/gogglesaccount for an additional $10.2 millionper year. These three types of PPEtogether account for 68 percent of all ofthe proposed rule’s costs of compliance.Construction special trades (SIC 17), at$24.2 million, and building constructioncontractors (SIC 15), at $6.2 million, arethe industries estimated to incur thegreatest costs.

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10 This assumes that all construction employeesneed welding PPE, fall protection, chemicalprotective clothing and safety shoes with metatarsalguards and that the same workers need faceshieldsand standard goggles in addition to weldinghelmets and welding goggles.

Economic Impacts and Certification ofNo Significant Impact

OSHA analyzed the economic impactsof the proposed rule by calculatingaverage annualized compliance costs asa percentage of the sales and profits ofall establishments in affected industries.As shown in Table VI–9, annualizedcosts to employers for establishments inall affected industries are less than 0.01percent of sales and only 0.02 percentof profits. Even in the most affectedindustry, Welding & Other Repair (SIC76), annualized costs are still less than0.5 percent of profits. Costs of thismagnitude do not threaten the financialhealth of even the most marginal firm.Since most employers in mostindustries already pay for PPE, themajor competitive effect of the rule is tolimit any small short-term competitiveadvantage a few firms gain by notpaying for PPE, i.e., by requiring theiremployees to pay for PPE that otheremployers in their industry pay for. Asshown in the benefits section, manyfirms already pay for PPE because itproves cost-effective; many other firmsmay find that, when benefits as well ascosts are considered, the costs of PPEare more than offset by these benefits.

OSHA also assessed the economicimpacts of the proposed rule on smallfirms within each affected industry.Impacts on two sizes of small firm wereestimated: those with fewer than 500employees, and those with fewer than20 employees. In using 500 employeesand 20 employees to characterize firmsfor this screening analysis for impacts,OSHA is not proposing definitions ofsmall business that are different fromthose established by the Small BusinessAdministration (SBA) in its Table ofSize Standards. The SBA sizedefinitions are SIC-code specific, andare generally expressed either in termsof number of employees or as annualreceipts. Instead, OSHA is using 500employees and 20 employees as asimple method of screening forsignificant impacts across the largenumber of industries potentiallyaffected by the proposed rule. Use ofthis approach avoids the need tointerpolate because the underlyingindustry profile data do not correspondwith the SIC-specific size categoriesestablished by the SBA. (OSHA notesthat, for almost all of the industriesaffected by this rulemaking, the SBAsize definitions fall within the 20- to500-employee range.) OSHA believesthat this screening approach willcapture any significant impacts on small

firms in affected industries. The Agencywelcomes data supporting thisassumption or data demonstrating thatfirms in the industry-specific sizeclasses used by the SBA will experiencesignificant impacts.

The results of these analyses (TablesVI–10 and VI–11, respectively)demonstrate that the annualized costs ofcompliance do not exceed 0.1 percent ofsales or 1 percent of profits for smallfirms in any covered industry. Based onthese analyses, in accordance with theRegulatory Flexibility Act (5 U.S.C. 605)OSHA certifies that the proposed rulewill not have a significant impact on asubstantial number of small entities.

Because statistically meaningfulsurvey data are available only at thetwo-digit Standard IndustrialClassification level, OSHA hasconducted this analysis of economicimpacts at the 2-digit level. OSHAbelieves that this level of analysisadequately captures meaningfulvariations in economic impacts. Further,the costs are so low that even if a sub-industry were to have substantiallyhigher costs as a percentage of sales orprofits, the financial health of that sub-industry would not be in any danger.However, the Agency requests commenton any specific industry that may havean unusual pattern of PPE usage orpayment that could lead to more severeimpacts than those portrayed for its 2-digit sector.

To test its conclusions that theregulation is economically feasible andwill not have a significant impact on asubstantial number of small entities, theAgency performed sensitivity analysesrelying on ‘‘worst case’’ scenarios. First,in order to test the potential impact onOSHA’s estimates of errors in the expertpanel’s characterization of paymentpatterns, the Agency examined impactsacross all industries using the extremeassumption that employers were notcurrently paying for any protectiveequipment. Under this extremescenario, the proposed rule’s costs ofcompliance would quadruple, but theimpacts of even these costs in nearly allindustries would still be below onepercent of profits. The largest impactswould occur in SIC 76 (Welding & otherrepair), where costs under this extremescenario would be less than 3 percent ofprofits.

Second, the Agency focused on theconstruction industry, which was notcovered in OSHA’s 1989 PPE use surveyand is estimated in OSHA’s analysis toaccount for half of the rule’s costs ofcompliance, to see what the impacts

would be under an extremely unlikelyscenario that assumed that allconstruction employees wore all typesof PPE.10 Under this scenario, the largestimpact would occur in SIC 17, wherecosts would equal 2.1 percent of profits.This result shows that, even if theAgency had no data on PPE usage in theconstruction industry and simplyassumed that every employee in thesector used every possible type of PPE,the proposed standard would still beeconomically feasible and would nothave a significant impact on asubstantial number of small entities.

Third, the Agency has constructed a‘‘worst-worst’’ case scenario for theconstruction industry; this scenarioassumes that employees in this industryare wearing all types of PPE and pay forall of this PPE, i.e., that no employercurrently pays anything for any type ofPPE. Even under this scenario, the costsof the proposed rule would be less than5 percent of profits and less than 1percent of revenues for firms in allconstruction subsectors. This analysisshows that even if the Agency had nodata on either PPE use or PPE paymentpatterns in the construction industry, itwould still be reasonable to concludethat the proposed standard iseconomically feasible in theconstruction sector and that small firmsin that sector would not experiencesignificant impacts.

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Environmental Impact Analysis

OSHA has reviewed this proposedrule in accordance with the NationalEnvironmental Policy Act (NEPA) (42USC 4321 et seq.), the regulations of theCouncil on Environmental Quality (40CFR Part 1500), and DOL’s NEPAprocedures (29 CFR Part II). As a resultof this review, OSHA has determinedthat this action will have no significantimpact on the external environment.

Unfunded Mandates Analysis

This proposed rule on EmployerPayment for Personal ProtectiveEquipment has been reviewed inaccordance with the UnfundedMandates Reform Act of 1995 (UMRA)(2 USC 1501 et seq.) and ExecutiveOrder 12875. As discussed in thePreliminary Economic Analysis, OSHAestimates that compliance with theproposed rule will require expendituresof $62.3 million per year by affectedemployers. Therefore, this proposedrule is not a Federal private sectormandate and is not a significantregulatory action within the meaning ofSection 202 of UMRA. OSHA standardsdo not apply to State and localgovernments except in States that havevoluntarily elected to adopt an OSHAState plan. Consequently, the proposedrule does not meet the definition of a‘‘Federal intergovernmental mandate’’(Section 421(5) of UMRA). In addition,the Agency has concluded that virtuallyall State-plan States, the only States inwhich this rule could have any effect onState and local government employers,already require that employers pay forrequired PPE. Thus, this rule will nothave an impact on employers who areState and local governments. In sum,this proposed rule does not imposeunfunded mandates within the meaningof UMRA.

References for the PreliminaryEconomic Analysis

Berkowitz, M., and Burton, J. PermanentPartial Disability Benefits In WorkerCompensation. W. E. Upjohn Institutefor Employment Research, Kalamazoo,Michigan, 1987.

Bureau of Labor Statistics, ‘‘Employer Costsfor Employee Compensation Summary’’,News Release, October 21, 1997.

Bureau of National Affairs, Basic Patterns inUnion Contracts, Fourteenth Edition,BNA Books, 1995.

Business Roundtable. ImprovingConstruction Safety Performance: AConstruction Industry Cost EffectivenessProject. Report A–3, January, 1982.

Chelius, J., Galvin, D., and Owens, P.Disability: It’s more expensive than youthink. Business & Health, pp. 78–84,Mid-March 1992.

Eastern Research Group, Patterns of PPEProvision, 1998.

Hinze, J. and Appelgate, L.L. Costs ofConstruction Injuries. Journal ofConstruction Engineering andManagement 117(3):537-550, 1991.

Klein, R.W., Nordman, E.C., and Fritz, J.L.Market Conditions in Workers’Compensation Insurance. Interim ReportPresented 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 SafetyPerformance: The User’s Role. Preparedunder contract for The BusinessRoundtable Construction Industry CostEffectiveness 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 HealthAdministration, Office of RegulatoryAnalysis, Background Document to theRegulatory Impact and RegulatoryFlexibility Assessment for the PPEStandard, 1994, Exhibit 56, S–060.

Office of Technology Assessment, PreventingIllness and Injury in the Workplace,Volume 2—Part B: Working Papers,1994; Exhibit 189, Docket H049.

U.S. Interdepartmental WorkersCompensation Task Force. Workers’Compensation Reform: Challenge for the80’s. 1979.

U.S. Social Security Administration. AnnualStatistical Supplement to the SocialSecurity Bulletin. Washington, D.C.,1993.

Worker Compensation Research Institute.Income Replacement in California.December, 1993.

Bureau of National Affairs, Basic Patterns inUnion Contracts, Fourteenth Edition,BNA Books, 1995.

VII. Public Participation

Written CommentsInterested parties are invited to

submit written data, views, andcomments with respect to this proposal.These comments must be postmarked byJune 14, 1999. Written comments are tobe submitted in quadruplicate, or in 1original (hard copy) and 1 disk (31⁄2′′ or51⁄4′′) in WordPerfect 5.0, 5.1, 6.0, 8.0,or ASCII, to the Docket Office, DocketNo. S–042, Room N2625, U.S.Department of Labor, 200 ConstitutionAve. N.W., Washington, DC. 20210.

Comments may also be submittedelectronically through OSHA’s Internetsite at URL, http://www.osha-slc.gov/e-comments/e-comments-ppe.html. Pleasebe aware that information such asstudies, journal articles, and so forthcannot be attached to the electronicresponse and must be submitted inquadruplicate to the above address.Such attachments must clearly identify

the respondent’s electronic submissionby name, date, and subject, so that theycan be attached to the correct response.These comments must be transmitted byJune 14, 1999.

All comments, views, data, andarguments received within the specifiedcomment period will be made part ofthe record and will be available forpublic inspection and copying at theabove Docket Office address.

Notice of Intention To Appear at theInformal Hearing

Under section 6(b)(3) of theOccupational Safety and Health Act,OSHA is scheduling an informal publichearing to provide the public with anopportunity to testify on the issuesraised by the proposed standard. Theinformal public hearing will be held inWashington, DC on June 22, 1999, andwill extend through July 2, 1999,depending on the number of personsintending to participate.

The hearing will begin at 9:30 a.m. onJune 22, 1999 in the auditorium of theFrances Perkins Building, U.S.Department of Labor, 200 ConstitutionAvenue NW, Washington, DC 20210.

All persons who wish to participate inthe hearing must file four copies of anotice of intention to appear. Thisnotice must be postmarked on or beforeJune 1, 1999. The notice of intention toappear, which will be available forinspection and copying at the OSHADocket Office (Room N2625), telephone(202) 693–2350, must contain thefollowing information:

1. The name, address, and telephonenumber of each person to appear;

2. The capacity in which the personwill appear;

3. The approximate amount of timerequired for the presentation;

4. The issues that will be addressed;5. A brief statement of the position

that will be taken with respect to eachissue; and,

6. Whether the party intends tosubmit documentary evidence and, if so,a brief summary of it.

Mail the notice of intention to appearto: Docket Office, Docket S–042, U.S.Department of Labor, 200 ConstitutionAvenue NW, Washington, DC 20210;telephone (202) 693–2350.

A notice of intention to appear alsomay be transmitted by facsimile to (202)693–1648 (Attention: Docket S–042), byJune 1, 1999 provided that the originaland 3 copies are sent to the sameaddress and postmarked no more than 3days later.

Filing of Testimony and EvidenceBefore the Hearing

Any party requesting more than 10minutes for a presentation at the



hearing, or who will submitdocumentary evidence, must provide inquadruplicate, the complete text of thetestimony, including any documentaryevidence to be presented at the hearing.One copy must not be stapled or boundand must be suitable for copying. Thesematerials must be provided to theDocket Office at the address above andbe postmarked no later than June 14,1999.

Each such submission will bereviewed in light of the amount of timerequested in the notice of intention toappear. If the information contained inthe submission does not justify theamount of time requested, the Agencywill allocate a more appropriate amountof time and notify the participant of thatfact prior to the informal public hearing.

Any party who has not substantiallycomplied with this requirement may belimited to a 10 minute presentation, andmay be requested to return forquestioning at a later time.

Any party who has not filed a noticeof intention to appear may be allowedto testify for no more than 10 minutesas time permits, at the discretion of theAdministrative Law Judge, but will notbe allowed to question witnesses.

Notices of intention to appear,testimony, and evidence will beavailable for copying at the DocketOffice at the address noted above.

Conduct and Nature of the HearingThe hearing will commence at 9:30

a.m. on June 22, 1999. At that time, anyprocedural matters pertaining to theproceeding will be resolved.

The nature of an informal rulemakinghearing is established in the legislativehistory of section 6 of the OccupationalSafety and Health Act and is reflectedin OSHA’s rules of procedure forhearings (29 CFR 1911.15(a)). Althoughthe presiding officer is anAdministrative Law Judge (ALJ), andlimited questioning by persons whohave filed notices of intention to appearis allowed on crucial issues, theproceeding is informal and legislative intype. OSHA hearings provide interestedpersons with an opportunity to makeeffective oral presentations, withoutprocedural restraints that unnecessarilyimpede or protract the rulemakingprocess.

Additionally, the hearing is primarilyfor information gathering andclarification. It is an informaladministrative proceeding, rather thanan adjudication. The technical rules ofevidence, for example, do not apply.The regulations that govern OSHAhearings, combined with the pre-hearingguidelines that the ALJ will issue forthis hearing, will ensure fairness and

due process and also facilitate thedevelopment of a clear, accurate, andcomplete record. Questions ofrelevance, procedure, and participationgenerally will be decided in favor of themost effective development of therecord.

The hearing will be conducted inaccordance with 29 CFR part 1911. Itshould be noted that § 1911.4 specifiesthat the Assistant Secretary may, uponreasonable notice, issue alternativeprocedures to expedite proceedings orfor other good cause.

The hearing will be presided over byan Administrative Law Judge whomakes no decision or recommendationon the merits of OSHA’s proposal. Theresponsibility of the Administrative LawJudge is to ensure that the hearingproceeds at a reasonable pace and in anorderly manner. The AdministrativeLaw Judge, therefore, will have all of thepowers necessary and appropriate toconduct a full and fair informal hearingas provided in 29 CFR part 1911,including the powers:

1. To regulate the course of theproceedings;

2. To dispose of procedural requests,objections, and comparable matters;

3. To confine the presentations to thematters pertinent to the issues raised;

4. To regulate the conduct of thosepresent at the hearing by appropriatemeans;

5. At the Judge’s discretion, toquestion and permit the questioning ofany witness and to limit the time forquestioning; and,

6. At the Judge’s discretion, to keepthe record open for a reasonable, statedtime (known as the post-hearingcomment period) to receive writteninformation and additional data, views,and arguments from any person who hasparticipated in the oral proceedings.

OSHA recognizes that there may beinterested persons who, through theirknowledge of safety or their experiencein the subject matter of this proceeding,would wish to endorse or supportcertain provisions in the proposedstandard. OSHA welcomes suchsupportive comments in order that therecord of this rulemaking will present abalanced picture of the public responseon the issues involved.

VIII. State-Plan StatesThe 25 States and Territories with

their own OSHA-approved occupationalsafety and health plans must revise theirexisting standards within six months ofthe publication date of the finalstandard or show OSHA why there is noneed for action, e.g., because an existingState standard covering this area isalready ‘‘at least as effective’’ as the

revised Federal standard. These Statesare: Alaska, Arizona, California,Connecticut (State and local governmentemployees only), Hawaii, Indiana, Iowa,Kentucky, Maryland, Michigan,Minnesota, Nevada, New Mexico, NewYork (State and local governmentemployees only), North Carolina,Oregon, Puerto Rico, South Carolina,Tennessee, Utah, Vermont, Virginia,Virgin Islands, Washington, andWyoming.

IX. OSHA’s Supplementary Statementof Reasons for Its Interpretation of 29CFR 1910.132(a)

This supplementary statementexplains OSHA’s interpretation that thegeneral protective equipment standard,29 CFR 1910.132(a), requires employersto provide protective equipment,including personal protectiveequipment, at no cost to employees,except for equipment that is personal innature and normally used away from theworksite. (OSHA uses the abbreviationPPE to cover both protective equipmentand personal protective equipment.)OSHA initially published thisinterpretation in an October 1994memorandum to the field. In October1997, the Occupational Safety andHealth Review Commission decidedthat the Secretary had not adequatelyexplained the basis for herinterpretation, in light of a perceivedconflict between the 1994 memorandumand interpretive statements made byOSHA officials in letters issued between1974 and 1994. OSHA is including thefollowing supplementary statement inthis Notice of Proposed Rulemaking toset forth in detail the basis for itsposition on this important issue.

A. Background

OSHA’s general protective equipmentstandard, 29 CFR 1910.132 states, inrelevant part, as follows:

Section 1910.132 General Requirements

(a) Application. Protective equipment,including personal protective equipment foreyes, face, head, and extremities, protectiveclothing, respiratory devices, and protectiveshields and barriers, shall be provided, used,and maintained in a sanitary and reliablecondition wherever it is necessary by reasonof hazards of processes or environment,chemical hazards, or mechanical irritantsencountered in a manner capable of causinginjury or impairment in the function of anypart of the body through absorption,inhalation or physical contact.

(b) Employee-owned equipment. Whereemployees provide their own protectiveequipment, the employer shall be responsibleto assure its adequacy, including propermaintenance, and sanitation of suchequipment.



11 The words ‘‘provide’’ and ‘‘furnish’’ are oftenused interchangeably. Webster’s Third New Int’lDictionary, id.

12 Section 5(a)(2) of the Act provides, in relevantpart, that ‘‘[each employer shall comply withoccupational safety and healthstandards . . . issued pursuant to this Act.’’ 29U.S.C. 654(a)(2).

On October 18, 1994, DeputyAssistant Secretary James Stanley issueda memorandum to OSHA’s regionaladministrators and heads of directoratesannouncing a uniform agency policy onemployers’ responsibility to pay forpersonal protective equipment undersection 1910.132 and other standardsrequiring employers to ‘‘provide’’ suchequipment. The interpretation outlinedin the Deputy Assistant Secretary’smemorandum requires employers to payfor all personal protective equipmentthat is necessary for the employee to dohis or her job safely and in compliancewith OSHA standards, except forequipment that is personal in natureand normally used away from theworksite such as steel-toe safety shoes.OSHA subsequently issued acompliance directive, STD 1–6.6,incorporating this interpretation andstating that violations of the policywould be cited.

In March 1996, OSHA issued acitation alleging that the Union TankCar Company violated 29 CFR1910.132(a) by requiring employees topay for metatarsal safety shoes andwelding gloves. Upon review, theOccupational Safety and Health ReviewCommission issued a decision vacatingthe citation. Secretary of Labor v. UnionTank Car Co., 18 O.S.H. Cas. (BNA)1067 (Rev. Comm. 1997). In UnionTank, the Commission stated that it hadaddressed the meaning of 29 CFR1910.132 in The Budd Company, 1O.S.H. Cas. (BNA) 1548 (Rev. Comm.1974), and had concluded that thestandard could not be interpreted torequire employers to pay for personalprotective equipment. 18 O.S.H. Cas.(BNA) at 1068. The Commission alsonoted that OSHA had issued at least fiveletters of interpretation between 1974and 1994 stating that the standard doesnot specify who pays the cost ofpersonal protective equipment. Id.Characterizing the Agency’s approach inthese letters as acquiescence in Budd,the Commission criticized OSHA forfailing to provide an adequateexplanation for the apparently newinterpretation announced in the Stanleymemorandum. The Commission notedthat an agency changing its course‘‘must supply a reasoned analysisindicating that prior policies andstandards were being deliberatelychanged, not casually ignored.’’ Id. at1069.

The Secretary believes that requiringemployers to pay for personal protectiveequipment that must be worn because ofhazards in the workplace is central tothe effective administration of the Act.While the Secretary believes that theinterpretation announced in STD 1–6.6

is faithful both to the standards’ plainlanguage and to the legislative intent,she is mindful of the Commission’sconcern that the Agency has notprovided an adequate explanation of thebasis for this interpretation. To addressthese concerns, this supplementarystatement reviews the history of priorinterpretive statements and explains indetail the linguistic and policy bases forrequiring employers to pay for personalprotective equipment.

The following discussion is organizedinto two sections. Section II, below,explains the bases for the Secretary’sinterpretation, including the meaning ofthe word ‘‘provide’’ in the standard, thelegislative intent that employers bearthe costs of safety and healthrequirements, and the reasons whyrequiring employers to pay for personalprotective equipment contributes inpractical ways to increased safetyprotection for employees. Section IIIaddresses the decisions issued by theCommission and the Third Circuit inBudd. The section examines in detailthe separate rationales offered by theCommissioners in the case, and explainswhy those rationales (none of whichcommanded a Commission majority) arenot Commission precedent, nor are theyconsistent with subsequent Federal andCommission case law. The section alsoaddresses OSHA’s prior statementsregarding personal protective equipmentand demonstrates that OSHA did nothave a settled national policy on thestandard’s interpretation until 1994.

B. The Language and Purpose of theStandard, as Well as the Policy of theOSH Act, Support the Secretary’sConstruction

The Secretary’s interpretation ofsection 1910.132 is that the employer’sduty to ‘‘provide’’ personal protectiveequipment when hazards dictate its useincludes the obligation to pay for theequipment. See Borton, Inc. v. OSHRC,734 F.2d 508, 510 (10th Cir. 1984)(usual meaning of provide is ‘‘tofurnish, supply, or make available’’).Accord, Usery v. Kennecott CopperCorp., 577 F.2d 1113, 1119 (10th Cir.1978); Secretary v. Baker ConcreteConstr. Co., 17 O.S.H. Cas. (BNA) 1236,1239. These definitions strongly implythat what is to be ‘‘provided’’ is to begiven without cost to the recipient.

The Review Commission itself hasfound that ‘‘provide’’ includes therequirement to ‘‘pay for’’ under astandard closely analogous to section1910.132. In Secretary of Labor v. ErieCoke Corp., 15 O.S.H. Cas. (BNA) 1561(Rev. Comm. 1992), the Commissionaddressed the meaning of 29 CFR1910.1029(h)(1), which requires

employers to ‘‘provide and assure theuse of’’ appropriate personal protectiveequipment for coke oven workers. TheCommission held that the plainmeaning of ‘‘provide,’’ as well as otherfactors, supported the Secretary’sinterpretation that flame resistant glovesmust be furnished at no charge. Id. at1563 (the dictionary definitions‘‘suggest . . . that ‘‘provide’’encompasses more that merely makingitems available’’).

Courts have relied upon this meaningin holding that safety equipment andother items to be ‘‘provided’’ underanalogous state and Federal regulationsmust be furnished at no charge. InBendix Forest Prods. Corp. v. Division ofOccupational Safety and Health, 600P.2d 1339 (Cal. 1979) (en banc), theCalifornia Supreme Court held that Cal/OSHA standards requiring employers to‘‘furnish’’ and ‘‘provide’’ safety devicesprecluded employers from chargingemployees for personal protectiveequipment. The Court found, inter alia,that ‘‘a reasonable and ordinaryinterpretation of ‘‘furnish’’ . . .concomitantly requires the employer topay for the safety equipment.’’ Id. at1344.11 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) (HHSregulations defining ‘‘reasonableaccommodation’’ under section 504 ofthe Rehabilitation Act to include ‘‘theprovision of readers’’ required employerto pay for readers to accommodatequalified blind employees, unless suchcosts would pose an undue burden).

The Secretary’s construction thatemployers are responsible for the cost ofpersonal protective equipment findsfurther support in the language andpurpose of the OSH Act. A centralprinciple embodied in the Act is thatthe fundamental duty of ensuring safeworking conditions is to be borne byemployers, not employees. Early in theAct’s development, Federal appellatecourts established that section 5(a), 29U.S.C. 654(a), allocates to employerssole legal responsibility for achievingcompliance with safety and healthstandards.12 Atlantic & Gulf Stevedoresv. OSHRC, 534 F.2d 541, 553 (3d Cir.1976); United Steelworkers of Americav. Marshall, 647 F.2d 1189, 1231 (D.C.Cir. 1980). These courts concluded thatalthough section 5(b) nominally refers to



13 Sections 9(a) and 10(a) provide for the issuanceof citations and notifications of proposed penaltiesonly to employers. 29 U.S.C. 658(a), 659(a).Similarly, section 10(a) refers only to employercontests of citations and proposed penalties. Whileemployees may intervene in proceedings initiatedby the employer, the only independent rightgranted employees is to contest the reasonablenessof any time period fixed by the Secretary forabatement of a violation. 29 U.S.C. 659(c). Section17 provides for the assessment of civil monetarypenalties only against employers. 29 U.S.C. 666. SeeAtlantic & Gulf Stevedores, 534 F.2d at 553.

14 OSHA recognizes that safety-toe shoes dopossess special characteristics which distinguishthem from other types of personal protectiveequipment for cost-allocation purposes. See, e.g.,Budd, 1 O.S.H. Cas. (BNA) at 1550 (distinguishingsafety shoes, which are uniquely personal in natureand used away from work, from capital equipment,which employers ordinarily pay for).

15 OSHA’s approach to payment for PPE underhealth and safety standards is discussed in detailabove.

duties of employees as well asemployers, the Act’s substantiverequirements and enforcementscheme 13 are directed only atemployers. Accordingly, the statute’sreference to employee duties is:essentially an exhortation to employees tocooperate in the standards and is not meantto diminish in any way the employer’scompliance responsibilities or hisresponsibility to assure compliance by hisown employees. Final responsibility forcompliance with the requirements of this Actremains with the employer.

United Steelworkers, 647 F.2d at 1231.See also Atlantic & Gulf Stevedores, 534F.2d at 553 (the Act’s reference toemployee duties in section 5(b) is‘‘essentially devoid of content’’).

The legislative history demonstratesthat employers’ complianceresponsibilities include the obligation topay for devices and work practicesnecessary to render workplaces safe.The Supreme Court found that thelegislative history:shows that Congress understood that the Actwould create substantial costs for employers,yet intended to impose such costs whennecessary to create a safe and healthfulworking environment. Congress viewed thecosts of health and safety as a cost of doingbusiness. Senator Yarborough, a cosponsor ofthe [Act], stated: ‘‘We know the costs wouldbe put into consumer goods but that is theprice we should pay for the 80 millionworkers in America . . . Senator Eagletoncommented that ‘‘[t]he costs that will beincurred by employers in meeting thestandards of health and safety to beestablished under this bill are, in my view,reasonable and necessary costs of doingbusiness.’’ Other Members of Congressvoiced similar views.

American Textile Mfrs. Inst., Inc. v.Donovan, 452 U.S. 490, 519–521 (1980)(ATMI) (internal citations omitted,original emphasis). See also ForgingIndus. Ass’n v. Secretary of Labor, 773F.2d 1436, 1451 (4th Cir. 1985) (enbanc) (in view of Supreme Court’s‘‘clear statement’’ in ATMI that Congressintended employers to bear the costs ofsafety and health, OSHA may logicallyrequire employers to bear the costs ofhearing protectors under the hearingconservation standard).

The D.C. Circuit also foundpersuasive indications of Congress’s

intent to have employers bear generalfinancial responsibility under the Act. Itnoted that the report of the Senatesubcommittee from which the statuteemerged stressed the need to place thecost of standards on employers:many employers—particularly smallerones—simply cannot make the necessaryinvestment in health and safety and survivecompetitively, unless all are compelled to doso. The competitive disadvantage of the moreconscientious employer is especially evidentwhere there is a long period betweenexposure to a hazard and manifestation of anillness. In such instances a particularemployer has no economic incentive toinvest in current precautions, not even in thereduction of workmen’s compensation costs,because he will seldom have to pay for theconsequences of his own neglect.

United Steelworkers, 647 F.2d at 1231(quoting S. Rep. No. 91–1282, 91stCong. 2d Sess. 4 (1970), reprinted in,Senate Comm. on Labor and PublicWelfare, 92nd Cong. 1st Sess.,Legislative History of the OccupationalSafety and Health Act of 1970, at 144).See also Legislative History at 444, 1150.

Conspicuously absent from thelegislative history is any indication fromCongress that compliance costs shouldbe borne by employees. Indeed, it isreasonably implicit in the statutoryscheme that Congress sought tomaintain the standard of living ofworking men and women and did notcontemplate that employees’ pay andbenefits would be sacrificed to achievesafe and healthful workplaces. Forexample, the Senate report notes thatemployers are bound by the ‘‘generaland common duty to bring no adverseeffects to the life and health of theiremployees throughout the course oftheir employment. Employers haveprimary control of the workenvironment and should ensure that itis safe and healthful.’’ LegislativeHistory at 149.

In view of the OSH Act’s structureand history, there is no serious disputethat employers must pay for engineeringcontrols necessary to reduce exposuresto toxic substances. See, e.g. Budd, 1O.S.H. Cas. (BNA) at 1550, n.5. In theSecretary’s view, there is no principleddistinction between engineeringcontrols, which employers undoubtedlymust pay for, and the personalprotective equipment for whichpayment is required under STD 1–6.6.14

OSHA addressed this issue in

rulemaking on the Cancer Policy in1980 and found no distinction, forpayment purposes, between engineeringcontrols and personal protectiveequipment necessary to protectemployees from exposure tocarcinogenic substances. OSHA stated:

[T]he requirement that employers pay forprotective equipment is a logical corollary ofthe accepted proposition that the employermust pay for the institution of requiredengineering and work practice controls. Tothe extent that protective equipment, likeengineering controls, is intended also toprotect against . . . contamination,employers logically must pick up theexpense. There is no rational basis fordistinguishing . . . personal protectiveequipment [from engineering controls] Thegoal, in each case, is employee protection;consequently, the responsibility of paying forthe protection should, in each case rest onthe employer.

45 FR 5261 (January 22, 1980).15

OSHA has further determined, inrulemakings addressing specifichazards, that placing paymentresponsibility on the employer bestcarries out the Act’s purpose of fosteringemployee safety. 29 U.S.C. 651(b).Requiring employers to pay for personalprotective equipment contributes toincreased health and safety protectionin several practical ways. The employeris most knowledgeable about hazardsexisting in the workplace and istherefore best able to select andmaintain appropriate protectiveequipment. Requiring employers topurchase personal protective equipmentensures that they retain control over theselection, issuance, maintenance anduse of the devices. See 43 FR 19619(May 5, 1978) (preamble to final rule oninorganic arsenic); 46 FR 4153 (January16, 1981) (hearing conservationpreamble). Shifting the financial burdento employees, on the other hand, ‘‘riskslosing the necessary control over theorganized and consistent selection,issuance, maintenance and use of suchequipment.’’ 46 FR 4153.

Employer payment for protectiveequipment also contributes to improvedhealth and safety by removing economicdisincentives to cooperation byemployees. In promulgatingrequirements for medical surveillanceand medical removal protection (MRP)for some health standards, OSHA foundthat employees would be reluctantvoluntarily to cooperate in suchprograms if they believed that theywould suffer a loss of income as a result.See, e.g., 43 FR 54442–54449 (November21, 1978) (attachments to lead



preamble). See also United Steelworkersof America, 647 F.2d at 1230–12377(finding lead standard’s MRP provisionsto be authorized under the statute andreasonable). OSHA has also requiredemployers to provide medicalexaminations without cost to theemployee in part to ensure employeecooperation in taking the exams. 43 FR19624 (May 5, 1978) (preamble toinorganic arsenic standard). See alsoSecretary of Labor v. Phelps DodgeCorp., 11 O.S.H. Cas. (BNA) 1441, 1443(Rev. Comm. 1983) (noting ALJ’s findingthat when employees were required toprovide their own transportation to andfrom the hospital and to sacrifice theirpersonal time to take medicalexaminations for arsenic exposure, 42%of them failed to participate in themedical surveillance program).

OSHA considers that this evidence,which shows that employees makedecisions that risk their health andsafety to avoid suffering economic lossis relevant to the issue of payment forpersonal protective equipment. It iscertainly reasonable to believe thatemployees who are furnished personalprotective equipment at no charge aremore strongly motivated to wear thedevices, and to replace them when theywear out or are damaged, than areemployees who must purchase thesedevices. In the Union Tank case, theemployee representative presented anaffidavit that some employees taped orwrapped wire around their damagedmetatarsal safety boots in order to avoidhaving to pay up to $130 per pair toreplace them. Similarly, in OrmetPrimary Aluminum Corp., OSHRC No.96–0470, an employee testified that hecontinued to wear safety boots thoughthe protective steel toes were exposedand posed an electrocution hazardbecause he could not afford a new pair.The employee also testified that someworkers put a cement-like substanceover the steel toes of their boots whenthe leather covering wore away, but thatthis practice was hazardous because thesubstance was flammable. Thus, thepolicy outlined in STD 1–6.6 is not onlyconsistent with the plain meaning of thestandard’s text, it is supported by thestatutory context and by significantpractical safety considerations.

C. The Interpretation of § 1910.132Announced in STD 1–6.6 is Supportedby Better Reasoned Authority andReflected OSHA’s Initial Determinationon an Appropriate National PolicyRegarding Payment for PersonalProtective Equipment Under theStandard

1. IntroductionThis section addresses the grounds

relied upon by the Commission inUnion Tank for rejecting the Secretary’sinterpretation that section 1910.132(a)requires employers to pay for most typesof personal protective equipment. TheCommission first stated that in Budd ithad determined that ‘‘provide’’ insection 1910.132(a) could not beinterpreted to mean ‘‘pay for.’’ 18 O.S.H.Cas. (BNA) at 1068. The Commissionthen stated that OSHA had, for twentyyears, acquiesced in the interpretationof the standard announced in Budd. Id.at 1069. The Commission held that theSecretary’s ‘‘new interpretation’’ ofsection 1910.132(a) announced in 1994was unreasonable because it representeda change in policy without adequateexplanation. Id. This holding was basedon five letters of interpretation issuedfrom 1976 to 1993 stating that thestandard does not specify who pays forpersonal protective equipment.

The following sections address theBudd decisions, as well as otherrelevant precedent, and explain in detailwhy Budd did not announce anauthoritative interpretation of section1910.132(a). The sections also addressthe agency’s prior approaches to the costallocation issue.

During the period from 1974 throughOctober 1994, OSHA made a variety ofstatements on the question of employerpayment for personal protectiveequipment. OSHA concedes that thestatements of some agency officialsduring this period are inconsistent withthe interpretation outlined in STD 1–6.6. However, these letters do notamount to an authoritative agencyinterpretation that employers are notrequired to pay for personal protectiveequipment. During the period from 1978through 1994, OSHA promulgatedhealth standards, pursuant to section6(b) of the OSH Act, requiringemployers to pay for personal protectiveequipment. In these standards, OSHAinterpreted the Act to require employersto pay for personal protectiveequipment to the same extent that theywould be required to pay forengineering controls. Furthermore,during the relevant time period someOSHA officials interpreted section1910.132 to require employers to pay forpersonal protective equipment, other

than safety shoes, and one court ofappeals noted that the Act’s legislativehistory supported this interpretation.Considered as a whole, OSHA’s actionsduring the period from 1974–1994cannot reasonably be viewed asreflecting an official agencyinterpretation contrary to STD 1–6.6.

2. The Commission’s Budd DecisionThe Commission’s decision in Budd

arose from a citation alleging that theemployer violated 29 CFR 1910.132(a)by failing to provide safety-toe shoes toits employees. Prior to the hearing, theemployer moved to withdraw its noticeof contest on the understanding that itsobligation to provide safety shoes didnot include the requirement to pay forthem. The Secretary agreed that theemployer was not required to pay forthe shoes because of their specialcharacteristic, as noted below; however,the union representing the employeesobjected on the ground that the standardrequired employer payment. The issuepresented to the Commission waswhether the employer’s motion shouldbe granted.

The Secretary stressed the specialcharacteristics of safety shoes, includingtheir use away from work, as therationale for not requiring employers topay for this specific type of protectiveequipment. In her brief in Budd, theSecretary stated that:by tradition, in this country shoes areconsidered unique items of a personal nature.Safety shoes are purchased by size, areavailable in a variety of styles, and arefrequently worn off the job, both for formaland casual wear. Furthermore, it is neitherfeasible for a different employee to wear theshoes each day nor feasible that uponresigning from the position an employee willleave the shoes behind to be worn by anotherindividual.

See Brief of the Secretary, servedJanuary 10, 1973, at 8. However, theSecretary emphasized that aninterpretation requiring employersgenerally to provide personal protectiveequipment free of charge would beconsistent with the statutory scheme.She noted that such an interpretationcould improve safety and health bygiving employees greater incentive touse personal protective equipment. Id.at 9. She also noted that the Act’slegislative history demonstratedCongress’s intent to place the costs ofachieving safe and healthful workplacesupon employers. Id. at 10. The Secretaryconcluded that ‘‘[p]ersonal protectiveequipment cannot be segregated fromequipment necessary to provide properworking conditions and therefore thepurchase of such equipment by theemployer was contemplated by the Act



16 Commissioner Moran joined the majority on thequestion of the disposition of the employer’smotion to withdraw its notice of contest relating to29 CFR 1910.132. He dissented from theCommission’s decision on another cited violation,not relevant here.

in cases where a standard might requireit.’’ Id. at 10–11.

The Commission held that theemployer’s motion should be grantedbecause section 1910.132(a) could notbe interpreted to require the employer topay for safety shoes. However, theCommission did not announce amajority rationale for this conclusion.Commissioners Van Namee and Clearyauthored separate opinions explainingtheir different reasoning, whileCommissioner Moran concurred in thedetermination on the motion withoutstating a rationale.16

Commissioner Van Namee reasonedthat it would be anomalous to readsection 1910.132(a) to require employersto provide or pay for personal protectiveequipment in light of the wording ofsection 1910.132(b), whichcontemplates the use of employee-provided equipment. 1 O.S.H. Cas.(BNA) at 1549, 1550. In theCommissioner’s view, such aconstruction would render paragraph (b)meaningless. Id. at 1550. Thus, heinterpreted section 1910.132(a) to meanthat ‘‘where personal equipment isnecessary, the employer shall ensurethat it is used. If [the employer]provides such equipment, he isresponsible for ensuring that it is‘provided, used and maintained in asanitary and reliable condition.’ ’’ Id.

Commissioner Van Namee foundsupport for his interpretation of section1910.132(a) in the OSH Act’s purpose ofachieving safe workplaces, a purpose hebelieved to be unrelated to the questionof payment. He stated that‘‘[p]rescription of cost allocations is notessential to the effectuation of the Act’sobjectives. It is irrelevant for purposesof the Act who provides and pays forthe equipment. Either employer oremployee provision is consistent withthe purpose of the Act.’’ Id.Commissioner Van Namee also notedthat the steel-toed safety shoes at issuewere ‘‘uniquely personal’’ and could beused by employees away from theworkplace. Id., n. 5.

Commissioner Cleary concurred inthe determination on a different basis.He concluded that section 1910.132(a)does impose a duty upon an employerto provide directly or indirectly therequired personal protective equipment.Id. at 1552. He found that this readingwas not inconsistent with the text ofparagraph (b), because paragraph (b)imposes no duty upon employees tofurnish the equipment. ‘‘Rather,’’

Commissioner Cleary wrote, ‘‘whatparagraph (b) seems to recognize is thatequipment which is owned byemployees may sometimes be used bythe employees themselves . . . . Whenthis occurs, the paragraph establishes aduty upon the employer to assure itsadequacy. Under its express terms,paragraph (b) does not requireemployees to provide the equipment inthe first instance.’’ Id.

Commissioner Cleary found that theOSH Act ‘‘clearly contemplates that anemployer will generally assume thecosts of complying with its terms.’’ Id.However, he concluded that theCommission lacked jurisdiction toprovide relief as to costs in the Buddcase because section 1910.132 did not,by its express terms, require employersto assume the costs of personalprotective equipment. Id. In theCommissioner’s view, the Commissionlacked authority, in a proceeding toenforce a citation, to interpret thestandard to require payment. Id. At thesame time, the Commissioner noted thatother relief might be available. Hesuggested that an employer’s policy ofrequiring employees to pay for personalprotective equipment could, in somecases, constitute a violation of section11(c) of the OSH Act, which is enforcedthrough actions in Federal district court.Id. at 1553.

3. The Court of Appeals’ AffirmanceThe Commission’s decision was

affirmed on appeal in Budd v. OSHRC,513 F.2d 201 (3d Cir. 1975). The courtfound that the interpretation reached bythe Commission and the Secretary that29 CFR 1910.132 does not requireemployers to pay for safety-toe footwearwas reasonable. 513 F.2d at 205. Thecourt expressly reserved judgment onwhether employers could be required topay for other types of protectiveequipment. Id.

As support for affirmance of theCommission’s order, the court found thejoint position not inconsistent with thestatutory scheme. The panel noted thatCongress did not expressly require thatthe employer pay for protectiveequipment, and, in apparent agreementwith Commissioner Van Namee’s view,observed that ‘‘[t]his Act, unlike suchlegislation as the Fair Labor StandardsAct, is not concerned with wages andhours, but rather with reducing theincidence of job-related injuries.’’ Id. at206. The court also found the jointposition reasonable in light of thestandard’s language. It noted that theverbs ‘‘provided, used and maintained’’in section 1910.132(a) are phrased in thepassive voice without specifyingwhether the employer or the employeeis to perform these functions, and that

section 1910.132(b) contemplates thatemployees will provide some protectiveequipment. Id.

In sum, in Budd, the Secretary, theCommission and the Third Circuitagreed that 29 CFR 1910.132 does notrequire employers to pay for safety-toeshoes. However, neither theCommission decision nor the courtdecision is an authoritativeinterpretation of the standard as itapplies to other types of personalprotective equipment. In Union Tank,the Commission referred toCommissioner Van Namee’s rationale asthe Commission’s holding on themeaning of section 1910.132(a). 18O.S.H. Cas. (BNA) at 1068 (stating that,in Budd, ‘‘the Commission held that toread subpart (a) as requiring theemployer to provide protectiveequipment would negate subpart (b),which contemplates the use ofemployee provided equipment’’). Thischaracterization is substantially flawedbecause no one opinion in Budd can besaid to represent the Commission’sofficial view. See Atlantic Gulf &Stevedores v. OSHRC, 534 F.2d at 546(where Commission order affirmscitation but each Commissioner files aseparate opinion announcing a differentrationale, no one opinion representsCommission consensus).

In sum, four different approaches tothe payment issue emerged from theBudd litigation: (1) Employers shouldnot be required to pay for personalprotective equipment that is uniquelypersonal in nature and usable off theworksite, but may be required to pay forother types of PPE (the Secretary’sposition); (2) the OSH Act is indifferentto the question of who pays for personalprotective equipment (the view ofCommissioner Van Namee, supportedby the court of appeals at least for safetyshoes); (3) section 1910.132(a) cannot beinterpreted to require employers to payfor personal protective equipment inlight of the language of section1910.132(b) (the view of CommissionerVan Namee); and (4) section 1910.132(a)cannot be interpreted to requireemployers to pay because it does not sayso expressly (Commissioner Cleary’sview).

4. OSHA’s Interpretive Statements

From 1974 through 1994, OSHAembraced a variety of approaches to theissue of employer payment for personalprotective equipment. In its most formalstatements on the issue, made in thecontext of rulemaking proceedings on abroad spectrum of health hazards,OSHA determined that the Act generallycontemplates employer payment of the



17 The citation was not contested, and thusbecame a final order of the Commission byoperation of law. 29 U.S.C. 659(a).

18 OSHA’s issuance of the citation under section1910.132(a) was in step with the agency’s approachunder other standards that do not expressly requireemployers to pay for personal protectiveequipment. In 1979, OSHA issued an interpretiveInstruction clarifying that 29 CFR 1910.1029(h)(1),which states that the employer ‘‘shall provide’’protective clothing and equipment, including flameresistant gloves, for coke oven workers, requiresthat this equipment be furnished at no cost toemployees. OSHA Instruction STD 1–6.4 (March 12,1979).

costs of safety and health, includingpersonal protective equipment. OSHA’sdeterminations on employers’responsibility to pay for personalprotective equipment, made on therecord in rulemakings for specificstandards, are discussed infra.Similarly, OSHA issued an InterpretiveInstruction stating that under 29 CFR1910.1029 (h)(1), personal protectiveequipment for coke oven workers mustbe furnished by employers at no charge.See Erie Coke Corp., 15 O.S.H. Cas.(BNA) at 1563 (citing STD 1–6.4 (March12, 1979)).

Prior to 1994, OSHA did not publishenforcement guidance on section1910.132 in the Field OperationsManual or by interpretivememorandum. In some lettersresponding to requests for information,however, agency officials suggested thatBudd foreclosed an interpretation ofsection 1910.132, or of OSHA personalprotective equipment standardsgenerally, requiring employers to payfor personal protective equipment. Inother letters, OSHA noted that thestandards do not specifically allocatethe cost of such equipment toemployers, and suggested that the issuebe resolved through collectivebargaining, where appropriate. Typicalof this viewpoint is the September 2,1976 letter to Adlai E. Stevenson quotedby the Commission in Union Tank.

On the other hand, OSHA continuedat times to enforce the standard torequire employers to pay for personalprotective equipment. In September1990, OSHA issued a citation to ameatpacking firm alleging that itviolated section 1910.132(a) by chargingits employees for repair or replacementof steel mesh gloves and plastic wristbands used for protection against knifecuts.17 A July 17, 1990 agencymemorandum stated that althoughsection 1910.132(a) does not specificallyallocate the costs of personal protectiveequipment to employers, ‘‘it is ourposition that the employer is obligatedto pay for PPE which is not worn off theworksite. This includes welding gloves,but not safety shoes . . .’’ 18 A May 20,1994 agency letter responding to a

request for information on OSHA’senforcement policy stated that theinterpretation outlined in the agency’sJuly 1990 memorandum ‘‘is still ineffect.’’

Deputy Assistant Secretary Stanley’smemorandum of October 1994 and thesubsequent compliance directive STD1–6.6 were intended to harmonize thedifferent approaches to the question ofemployer responsibility for the costs ofpersonal protective equipment. Inrequiring employers to pay for all exceptuniquely personal equipment, used offthe worksite, the directive did not breaknew ground. Rather, the interpretationenunciated in the directive closelyparalleled the interpretation in the July1990 memorandum and the positiontaken in the Secretary’s brief in Budd.This policy also reflected OSHA’sformal position in rulemakingproceedings under section 6(b) thatpersonal protective equipment, likeengineering controls, must be paid forby employers unless specialcircumstances make it appropriate foremployees to provide their ownequipment. In stating that the matter ofpayment for items such as safety shoesand prescription eyewear may be left tonegotiation, the Stanley memorandumrecognizes the unfairness of requiringemployers to pay for items of equipmentthat are normally used away from work,are purchased to fit particularemployees, and are not, as a practicalmatter, reusable by other employees.

5. Why OSHA rejects the positions ofCommissioners Van Namee and Clearyon the interpretation of section 1910.132as it applies to PPE other than safety-toeshoes and prescription safety eyewear

The preceding discussion establishestwo points of central importance inaddressing the Commission’s analysis inUnion Tank. First, the Commission didnot reach a consensus in Budd on theinterpretation to be given section1910.132(a) regarding payment forpersonal protective equipment otherthan safety shoes. The interpretationrelied upon in Union Tank as the‘‘holding’’ in Budd is, in fact, no morethan the view of a single Commissioner.Second, the interpretation announced inSTD 1–6.6 was not a wholly new policy,nor was it a change in OSHA’s nationalpolicy since 1994. The statements in theagency letters relied upon by theCommission reflected the views of someofficials that are at odds with theagency’s positions taken (a) inrulemaking proceedings under the Act;(b) in its brief to the Commission inBudd; and (c) in a 1990 contestedenforcement action before theCommission. Viewed in this context, the

interpretation announced in the DeputyAssistant Secretary’s memorandum, andformally published in STD 1–6.6, isOSHA’s national policy, not a change insuch policy.

The following sections examine theinterpretive views expressed by theindividual Commissioners in Budd. Inlight of the case law and otherdevelopments since Budd, the Secretarybelieves that the position she outlinedin her Commission brief—thatemployers should not be required to payfor equipment that is uniquely personalin nature and usable off of the job—remains the only viable basis for thedisposition of that case. To the extentthat the positions outlined in theconcurring opinions support aninterpretation that section 1910.132does not require employers to pay forany type of personal protectiveequipment, they are inconsistent withsubsequent Federal court andCommission case law.

a. The Act is not indifferent to cost-allocation. Commissioner Van Namee’sposition that the OSH Act is indifferentto the question of who pays forequipment mandated by OSHAstandards has been rejected bysubsequent court and Commissiondecisions. That position ignores theextensive legislative history of the Act,discussed above, indicating Congress’sintent to place fiscal responsibility forthe safety of employees on industry,which can pass the costs to consumers.Based on this history, OSHA haspromulgated numerous standards undersection 6(b) of the Act, mandating thatemployers pay for protective devicesand other requirements necessary forsafety and health.

The lead standard (29 CFR1910.1025), promulgated in 1978,clearly stated the principle thatemployers should bear the costs ofrequirements necessary to achievementof healthful working conditions. Thestandard requires that an employer whoremoves employees from their jobsbecause of high blood-lead levels mustmaintain the workers’ earnings andseniority rights during removal for up toeighteen months. 29 CFR 1910.1025(k).The standard also requires employers toprovide, at no charge to employees,respirators and protective clothing. 29CFR 1910.1025 (f), (g). In the preambleto the Medical Removal Protection(MRP) provision, OSHA explained itsdetermination that compliance costswere properly allocable to employersunder the Act.

OSHA has determined that the foregoingcosts should be borne by employers in thefirst instance . . . MRP is meant to placethose costs of worker protection directly onthe industry at large rather than on the



shoulders of individual workers unfortunateenough to be at risk of material impairmentto health due to occupational exposure tolead. The costs of protecting worker healthare appropriate costs of doing business, thusemployers should properly bear theeconomic impact of temporary medicalremovals. The [OSH] Act . . . recognizedthat the costs which consumers pay for goodsshould reflect all costs of production,including costs associated with preventing. . . occupational disease. Under the Act,employers have the primary obligation toprovide a safe and healthful work experience,[and] thus should incur the costs necessaryto satisfy this obligation.

(43 FR 54449/3).Beginning in 1978, OSHA determined

that the costs of personal protectiveequipment necessary to guardemployees against exposure to toxicsubstances should be paid for byemployers. The standard on InorganicArsenic requires employers to pay forrespirators, protective clothing andprotective equipment, including gloves,shoes, and face shields or goggles. 29CFR 1910.1018(j)(1). The preamble tothe rule states that:the obligation is on the employer to provideprotective equipment at no cost to theemployee. In this way the employer is in thebest position to provide the correct type ofequipment and keep it in repair. Also, as theemployer has permitted exposures to exceedthe permissible exposure limits, theobligation properly rests on the employer.

43 FR 19619 (May 5, 1978). OSHAapplied the same reasoning in requiringemployers to pay for respirators whennecessary to protect employees fromexposure to cotton dust. 43 FR 27387/2 (June 23, 1978) (preamble to final ruleon occupational exposure to cottondust). The Cotton Dust preamble notesthat the language requiring employers toprovide respirators ‘‘ ‘at no cost to theemployee’ . . . makes explicit theposition which has long been implicit inall OSHA health standard proceedingsunder section 6(b) of the Act’’ Id. OSHAexpressed a similar view in thepreamble for the 1,2–Dibromo-3-chloropropane (DBCP) standard. 43 FR11523/3 (March 17, 1978).

In the following decades, OSHA hasexpanded its justification for explicitlyrequiring employers to bear the costs ofnecessary protective devices. In thepreamble to the hearing conservationstandard, OSHA determined thatemployers should pay for hearingprotectors based in part on acommenter’s statement that ‘‘wherepersonal protective equipment isnecessary to afford [a safe and healthfulworking] environment, it is . . . almostuniversally accepted that its purchase isthe responsibility of the employer.’’ 46FR 4153 (January 16, 1981). The

preamble also noted that permitting anemployer to charge employees forhearing protectors could discourage theuse of such devices and therebyundermine the effectiveness of theemployer’s hearing conservationprograms. Id.

The formaldehyde standard,promulgated in 1987, expressly linkedthe question of payment for personalprotective equipment and theemployer’s duty to ‘‘provide’’ suchequipment under 29 CFR 1910.132. Theformaldehyde standard requiresemployers to comply with 29 CFR1910.132 and 1910.133 and specifiesthat the appropriate protectiveequipment is to be provided at no costto the employee. 29 CFR 1910.148(h).The preamble to the formaldehydestandard stated that the standard‘‘reminds all employers of theirobligation to comply with . . . 29 CFR1910.132 . . . and requires theemployer to provide such clothing orequipment at no cost to the employee.’’52 FR 46269/1 (December 4, 1987).

By 1991, OSHA’s policy was firmlyestablished. In the bloodbornepathogens standard, the Agencyjustified the requirement that employerspay for various items of specializedequipment necessary to protect healthcare workers from exposure to blood orother potentially infectious materials.The preamble states that:[i]t has been the Agency’s longstandingpolicy to hold the employer responsible forcontrolling exposure to hazards in his or herworkplace and to fulfill this responsibility atno cost to the employee. Therefore, thefinancial burden for purchasing andproviding personal protective equipmentrests upon the employer just as it does for allother control measures (e.g., engineeringcontrols).

56 FR 64125/1 (December 6, 1991)(emphasis added).

This policy has been carried forwardto the present. OSHA’s standards formethylenedianiline, 29 CFR1910.1050(h)(2)(i), (i)(1); cadmium, 29CFR 1910.1027(g)(1), (i)(1); 1,3butadiene, 29 CFR 1910.1051(h)(1), (i);and methylene chloride, 29 CFR1910.1052(g)(1), (h)(1), promulgatedbetween 1992 and 1997, all requireemployers to pay for respirators,protective clothing and personalprotective equipment when suchdevices are necessary. OSHA’s newRespiratory Protection standard,promulgated January 8, 1988, alsorequires employers to providerespirators, as well as training andmedical evaluations, at no cost to theemployees. 63 FR 1271 (January 8,1988).

While OSHA has generally requiredemployers to pay for all types ofpersonal protective equipment, it hasrecognized an exception to the policy incertain circumstances. In the safetystandard on logging operations,promulgated shortly before issuance ofthe Deputy Assistant Secretary’smemorandum in October 1994, OSHAdetermined that logging employersshould pay for protective equipment forthe head, eyes, face, hands, and legs, butshould not be required to pay forlogging boots. OSHA excepted loggingboots from among the types ofequipment that employers mustpurchase for three reasons. First, theAgency found that the logging industryis highly transient and that loggingboots, unlike other types of personalprotective equipment, are not reusable.Therefore, OSHA concluded,‘‘employers would have to purchasenon-reusable logging boots costing $200to $400 many times a year for newly-hired employees, even though there is asignificant likelihood that theseemployees will remain in the job foronly a short time.’’ 59 FR 51684(October 12, 1994).

OSHA also found that loggingemployees tend to move from oneestablishment to another, taking theirlogging boots with them as tools of thetrade. OSHA noted that logging bootsare readily portable, and, unlike headand leg protection, are sized to fit aparticular employee. OSHA found thatit was appropriate to allow employees tofollow the established custom of takingtheir boots with them from job to jobrather than requiring employers toprovide logging boots. Id.

Finally, the Agency noted that therewas evidence in the record thatemployees use their logging boots awayfrom work, for such activities as huntingand cutting their own wood, and thatthere was not comparable evidence thatemployees also use other types ofprotective equipment off-site. Id. For allof these reasons, OSHA decided not torequire employers to purchase loggingboots. However, it found no basis todepart from its ‘‘long establishedpolicy’’ regarding the costs of otheritems of required personal protectiveequipment. Id.

Federal appellate courts have upheldOSHA’s statutory authority to imposeon employers the costs of requirementsreasonably necessary for safe andhealthful workplaces. In UnitedSteelworkers of America, the D.C.Circuit upheld OSHA’s authority tocharge employers with the costs of MRP,finding that ‘‘the scheme of the statute,manifest in both the express languageand the legislative history, appears to



19 As Deputy Assistant Secretary Stanley noted inhis 1994 memorandum, section 1910.132(b) permitsemployees to use their own equipment in somecircumstances but does not specify that practice asthe norm. ‘‘[I]nstead, the standard underscores theemployer’s obligation to assure that such equipmentis adequate and that it is properly maintained.’’

20 Section 1910.132(a)’s general requirement thatpersonal protective equipment ‘‘shall be provided,used and maintained . . . .’’ is given additionalspecificity by the other standards in Subpart I,Personal Protective Equipment. These standardsmake clear that the duties listed in section1910.132(a) fall upon employers. See, e.g., section1910.133(a) (‘‘The employer shall ensure that eachemployee uses appropriate eye or faceprotection . . .’’); section 1910.134 (a)(2)(‘‘Respirators shall be provided by the employerwhen such equipment is necessary to protect thehealth of the employee’’). The active and passivevoices are used interchangeably in the standardscomprising Subpart I.

permit OSHA to charge to employers thecost of any new means it devises toprotect workers’’ 647 F.2d at 1231. TheUnited Steelworkers court noted that theThird Circuit’s decision in Budd shouldbe confined to its facts, stating ‘‘[t]hecourt [in Budd] stressed the specialcharacter of protective devices whichthe employee would wear off-the-job aswell as on-the-job and made clear it wasexpressing no opinion on the properparty to be charged for other devicesand methods. Moreover, the court therefailed to address the relevant parts ofthe legislative history.’’ 647 F.2d at1231–1232, n.66.

The Fourth Circuit upheld the hearingconservation standard’s allocation of thecosts of hearing protectors to employersin Forging Indus. Ass’n v. Secretary ofLabor, 773 F.2d 1436, 1451 (4th Cir.1985) (en banc). The Forging Indus.court noted that in view of the SupremeCourt’s finding in ATMI that Congressintended to impose compliance costs onemployers, ‘‘it is only logical that OSHAmay require employers to absorb suchcosts.’’ 773 F.2d at 1451.

The Commission itself has squarelyrejected the view that the Act isindifferent to cost allocation in ErieCoke Corp., discussed supra, at p.4. InErie Coke, the commission upheld thereasonableness of the Secretary’sconstruction that the coke ovenemissions standard at 29 CFR1910.1029(h)(1)(ii) required employersto pay for flame resistant gloves. Indoing so, the Commission addressed thelegislative history and court precedentestablishing that Congress intendedemployers to bear the costs ofcompliance with standards. TheCommission stated: ‘‘[w]e agree withthese courts of appeals that, based onthe legislative history, Congressintended that the cost of compliancewith OSHA would be uniformlyreflected in the price of goods andservices, so as not to place the safety-conscious employer at a competitivedisadvantage.’’ 15 O.S.H. Cas. (BNA) at1565. Thus, Commissioner Van Namee’sview that it is irrelevant under the Actwhether employers or employees payfor protective devices finds no supportin the statute and has been rejected bysubsequent court and Commission caselaw.

b. Neither the language of section1910.132(b), nor the use of the passivevoice in section 1910.132(a) posesinterpretive difficulties. The view ofCommissioner Van Namee that section1910.132(a) cannot be interpreted torequire employers to ‘‘provide’’ personalprotective equipment because section1910.132(b) contemplates the use ofemployee-owned equipment, is

similarly unsupported. If CommissionerVan Namee were correct that readingsection 1910.132(a) to require employersto provide protective equipment wouldrender section 1910.132(b) superfluous,it could only be because section1910.132(b) itself imposes some dutyupon employees to provide their ownprotective equipment. See 1 O.S.H. Cas.(BNA) at 1550. However, section1910.132(b), by its terms, does notrequire employees to ‘‘provide’’anything. As Commissioner Clearycorrectly noted, section 1910.132(b)’sintroductory phrase ‘‘where employeesprovide their own protectiveequipment . . .’’ is to be read, not asimposing a duty upon employees tofurnish equipment, but rather, asrecognizing that employees maysometimes wish to use their ownequipment. See 1 O.S.H. Cas. (BNA) at1552. Such use might occur, forexample, if employee-owned equipmentis more comfortable or provides agreater degree of protection than wouldbe afforded by employer-providedequipment.19 Thus read, in accordancewith its terms, section 1910.132(b) posesno conflict with a reading of section1910.132(a) that requires employers toprovide personal protective equipment.

This result not only follows from theplain language of the standard: it is alsocompelled by case law, decidedsubsequent to Budd, rejecting thepremise that the OSH Act imposesenforceable duties upon employees. InAtlantic Gulf & Stevedores, the ThirdCircuit expressly rejected CommissionerVan Namee’s position, stated in hisconcurring opinion in that case, that theAct imposes enforceable complianceresponsibilities upon employees. Thecourt found that the ‘‘detailed scheme ofenforcement set out in sections 9, 10and 17 of the Act . . . is directed onlyagainst employers.’’ 534 F.2d at 553.The court also found section 5(b) of theAct, upon which Commissioner VanNamee relied as a basis for his view, tobe ‘‘essentially devoid of content.’’ Id.

In USWA, the D.C. Circuit similarlyconcluded that the Act imposescompliance obligations exclusivelyupon employers. It found, based on thelegislative history, that section 5(b) ‘‘isessentially an exhortation to employeesto cooperate in standards and is notmeant to diminish in any way theemployer’s compliance responsibilitiesor his responsibility to assure

compliance by his own employees.’’ 647F.2d at 1231 (quoting legislativehistory). This case law necessarilyprecludes any reading of section1910.132(b) that would impose a dutyupon employees to provide protectiveequipment.

Considered in the statutory context ofexclusive employer responsibilities,section 1910.132(a)’s language statingthat personal protective equipment‘‘shall be provided’’ is equivalent to adirection that ‘‘employers shallprovide’’ the equipment. Though theparagraph itself lacks precision, the Actleaves no room for doubt about whichactor—the employer or the employee—is to do the providing. Moreover, thestandard, considered in its entirety,provides further assurance thatemployers are to provide protectiveequipment. Section 1910.132(d)(i)–(iii)requires employers to perform a hazardassessment of their workplaces and to‘‘select and have each employee use’’appropriate personal protectiveequipment. ‘‘Selection’’ and ‘‘provision’’are closely related functions that shouldlogically be performed by the sameactor. It would be an anomalous readingthat required the employer to ‘‘select’’items of PPE suitable for each of itsemployees, yet required employees to‘‘provide’’ such equipment. All of thesereasons compel rejection ofCommissioner Van Namee’s position infavor of the Secretary’s construction,accepted by Commissioner Cleary, thatthe standard requires employers toprovide and pay for personal protectiveequipment when necessary to employeesafety.20

c. The standard may be interpreted torequire employer payment in theabsence of explicit cost-allocationlanguage. Finally, the position ofCommissioner Cleary—that if thestandard does not explicitly allocate thecosts of personal protective equipment,the Commission cannot requireemployers to pay—must be rejected.Unquestionably, the Secretary possessesthe power authoritatively to interpretambiguous OSHA standards in anadministrative adjudication before theCommission. Martin v. OSHRC (CF& I



Steel Corp.), 499 U.S. at 144, 151 (1991).The Secretary’s interpretation may, as inBudd, be embodied initially in acitation, ‘‘a form expressly provided forby Congress.’’ Id. at 157. It may also bedisseminated by other means, includinginterpretive rules and enforcementguidelines. Id.

The Commission has held that theSecretary properly exercised herdelegated interpretive authority toconstrue the word ‘‘provide’’ to mean‘‘pay for.’’ Erie Coke Corp. 15 O.S.H.Cas. (BNA) at 1563 (affirmingSecretary’s interpretation of coke ovenemissions standard to require employersto pay for flame resistant gloves).Therefore, the Commission’s authorityis not limited to enforcement of explicitregulatory requirements, asCommissioner Cleary supposed.

Summary and ConclusionThe uniform interpretation of section

1910.132 announced in STD 1–6.6 isconsistent with the standard’s languageand purpose, as well as with thestatute’s clear design to place fiscalresponsibility for achievement ofworkplace safety on employers. Theinterpretation is also consistent withFederal appellate decisions recognizingthe Secretary’s statutory authority tocharge employers with the cost ofregulatory requirements and with theCommission’s precedent in Erie CokeCorp. Finally, the interpretation isconsistent with the result in Budd thatemployers need not pay for safety shoes.To the extent that the concurringrationales offered by CommissionersVan Namee and Cleary in Budd addresspayment for other types of personalprotective equipment, the foregoingdiscussion demonstrates that thepositions taken by these Commissionersare contrary to case law decided sinceBudd and to now-settled principles ofregulatory construction.

The fact that some agency lettersissued prior to Deputy AssistantSecretary Stanley’s memorandumsuggest agency acquiescence in theCommissioners’ concurring opinions inBudd, does not render invalid theSecretary’s interpretation here. Theseletters must be considered in the contextof OSHA’s overall approach to thepayment issue in rulemaking undersection 6(b) of the Act, and the Agency’s1990 interpretive memorandum andcitation under section 1910.132(a). Inthis context, the letters reflecteddivergent positions within the Agencyconcerning the employer’s duty to payfor personal protective equipment,rather than a settled agencyinterpretation. Significantly, when theseletters were sent out, OSHA had not

developed an authoritative, nationwideposition on the allocation of such costs,Cf. Drummond Coal Co. v. Hodel, 796F.2d 503, 508 (D.C. Cir. 1986)(regulatory interpretation given by someagency personnel in Alabama and reliedupon by some Alabama companies forfour years did not amount to a nationalpolicy which the Agency could notchange without reasoned explanation).See also Martin, 144 U.S. at 157(interpretive rules and agencyenforcement guidelines contained inField Operations Manual may beconsulted by reviewing courts todetermine consistency of interpretationadvanced in enforcement litigation). Infact, OSHA did not develop such aposition until the field directive (STD1–6.6) in 1994.

Furthermore, the inconsistentstatements prior to 1994 resulted, insubstantial part, from the erroneouspositions stated in the separateconcurring opinions in Budd: thatsection 1910.132(a) either imposes noduty upon employers to providepersonal protective equipment, orcannot be interpreted to requireemployers to pay for such equipmentabsent explicit cost allocation language.

The Supreme Court has observed that:The Secretary is not estopped from changinga view she believes to have been groundedupon a mistaken legal interpretation. Indeed,an administrative agency is not disqualifiedfrom changing its mind; and when it does,the courts still sit in review of theadministrative decision and should notapproach the statutory construction issue denovo and without regard to theadministrative understanding of the statutes.

Good Samaritan Hospital v. Shalala,508 U.S. 402, 418 (1993). And in thecircumstances presented here, ‘‘wherethe Agency’s interpretation of [itsregulation] is at least as plausible ascompeting ones, there is little, if any,reason not to defer to its construction.’’Id. The interpretation in STD 1–6.6 isreasonable, even if it is not the onlypermissible reading of the standard.

X. List of Subjects in 29 CFR Parts 1910,1915, 1917, 1918, and 1926

Construction industry; Eye and faceprotection; Foot protection; Generalindustry; Hand protection; Headprotection; Longshoring operations;Marine terminals; Occupational safetyand health; Personal protectiveequipment; Protective equipment;Safety glasses; Safety shoes; Shipyardindustry.

XI. AuthorityThis 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 ConstitutionAvenue, NW, Washington, DC 20210.

Accordingly, pursuant to sections 4,6, and 8 of the Occupational Safety andHealth Act of 1970 (29 U.S.C. 653,655,657), section 107 of the ConstructionWork Hours and Safety Standards Act(Construction Safety Act) (40 U.S.C.333), section 41 of the Longshore andHarbor Workers Compensation Act (33U.S.C. 941), Secretary of Labor’s OrderNo. 6–96 (62 FR 111), and 29 CFR part1911, it is hereby proposed to amend 29CFR parts 1910, 1915, 1917, 1918, and1926 as set forth below.

Signed at Washington, D.C., this 18th dayof March, 1999.Charles N. Jeffress,Assistant Secretary of Labor.

XII. Proposed Standards

General Industry

PART 1910—[AMENDED]

29 CFR part 1910 is proposed to beamended as follows:

1. The authority citation for subpart Iof 29 CFR part 1910 would be revisedto read as follows:

Authority: Sections 4, 6, and 8 of theOccupational Safety and Health Act of 1970(29 U.S.C. 653,655,657); Secretary of Labor’sOrder No. 12–71 (36 FR 8754), No. 8–76 (41FR 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 beadded to § 1910.132, to read as follows:

§ 1910.132 General requirements.

* * * * *(h) Payment for protective equipment.

All protective equipment, includingpersonal protective equipment (PPE),required in this part, shall be providedby the employer at no cost toemployees. Exception: The employer isnot required to pay for the logging bootsrequired by 29 CFR § 1910.266(d)(1)(v).The employer is also not required to payfor safety-toe protective footwear, or forprescription safety eyewear, providedthat all three of the following conditionsare met:

(1) The employer permits suchfootwear or eyewear to be worn off thejob-site;

(2) The footwear or eyewear is notused at work in a manner that rendersit unsafe for use off the job-site (forexample, contaminated safety-toefootwear would not be permitted to beworn off a job-site); and

(3) Such footwear or eyewear is notdesigned for special use on the job.



Shipyards


29 CFR Part 1915 is proposed to beamended as follows:

1. The Authority citation for SubpartI of 29 CFR Part 1915 would be revisedto read as follows:

Authority: Secs. 4, 6, and 8, OccupationalSafety and Health Act of 1970 (29 U.S.C. 653,655, 657); section 41, Longshore and HarborWorkers’ Compensation Act (33 U.S.C. 941),Secretary of Labor’s Order No. 8–76 (41 FR25059), No. 9–83 (48 FR 35756), No. 1–90 (55FR 9033) and No. 6–96 (62 FR 111) asapplicable; and 29 CFR part 1911.

2. A new paragraph (f) would beadded to § 1915.152, to read as follows:

§ 1915.152 General Requirements.* * * * *

(f) Payment for protective equipment.All protective equipment, includingpersonal protective equipment (PPE),required in this part, shall be providedby the employer at no cost toemployees.

Exception: The employer is notrequired to pay for safety-toe protectivefootwear, or for prescription safetyeyewear, provided that all three of thefollowing conditions are met:




Marine Terminals


29 CFR Part 1917 is proposed to beamended as follows:

1. The authority citation for SubpartE of 29 CFR part 1917 would continueto read as follows:

Authority: Sec. 41, Longshore and HarborWorkers’ Compensation Act (33 U.S.C. 941);Secs. 4, 6, and 8 of the Occupational Safetyand 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 (48FR 35736), or 6–96 (62 FR 111), asapplicable; and 29 CFR part 1911. Section1917.28 also issued under 5 U.S.C. 553.

2. A new § 1917.96 would be addedto supbart E, to read as follows:

§ 1917.96 Payment for protectiveequipment.

All protective equipment, includingpersonal protective equipment (PPE),required in this part, shall be providedby the employer at no cost toemployees. Exception: The employer isnot required to pay for safety-toeprotective footwear, or for prescriptionsafety eyewear, provided that all threeof the following conditions are met:

(a) The employer permits suchfootwear or eyewear to be worn off thejob-site;

(b) The footwear or eyewear is notused at work in a manner that rendersit unsafe for use off the job-site (forexample, contaminated safety-toefootwear would not be permitted to beworn off a job-site); and

(c) Such footwear or eyewear is notdesigned for special use on the job.

Longshoring



1. The authority citation for 29 CFRpart 1918 would be revised to read asfollows:

Authority: Secs. 4, 6, and 8 of theOccupational Safety and Health Act, 29U.S.C. 653, 655, 657; Walsh-Healey Act, 41U.S.C. 35 et seq.; Service Contract Act of1965, 41 U.S.C. 351 et seq.; Sec. 107, ContractWork 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; NationalFoundation of Arts and Humanities Act, 20U.S.C. 951 et seq.; Secretary of Labor’s OrderNo. 6–96 (62 FR 111) and 29 CFR part 1911.

2. A new § 1918.106 would be added,to read as follows:

§ 1918.106 Payment for protectiveequipment.


(a) The employer permits suchfootwear or eyewear to be worn off thejob-site;

(b) The footwear or eyewear is notused at work in a manner that rendersit unsafe for use off the job-site (forexample, contaminated safety-toefootwear would not be permitted to beworn off a job-site); and

(c) Such footwear or eyewear is notdesigned for special use on the job.

Construction



1. The authority citation for subpart Eof part 1926 would be revised to read asfollows:

Authority: Sec. 107, Contract Work Hoursand Safety Standards Act (ConstructionSafety Act) (40 U.S.C. 333); Secs. 4, 6, and8 of the Occupational Safety and Health Actof 1970 (29 U.S.C. 653, 655, 657); Secretaryof 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), asapplicable; and 29 CFR part 1911.

2. A new paragraph (d) would beadded to § 1926.95, to read as follows:

§ 1926.95 Criteria for personal protectiveequipment.

* * * * *(d) Payment for Protective Equipment.





[FR Doc. 99–7114 Filed 3–30–99; 8:45 am]BILLING CODE 4510–26–P


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15402 Federal Register /Vol. 64, No. 61/Wednesday, March ... · 15402 Federal Register/Vol. 64, No. 61/Wednesday, March 31, 1999/Proposed Rules ... discussion for some safety standards