[Federal Register Volume 61, Number 86 (Thursday, May 2, 1996)]
[Rules and Regulations]
[Pages 19547-19548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10433]



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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. S-060]
RIN 1218-AA71


Personal Protective Equipment for General Industry

AGENCY: Occupational Safety and Health Administration (OSHA); Labor.

ACTION: Final rule; technical amendment.

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SUMMARY: The final rule on personal protective equipment for general 
industry was published by OSHA on April 6, 1994 (59 FR 16334). In that 
rule, the introductory phrase ``the employer shall ensure'' was removed 
from various proposed requirements for employees to wear different 
types of protective equipment (final rule Secs. 1910.133, 1910.135, and 
1910.136). The general requirement for the employer to select and have 
the employees wear appropriate PPE, including any PPE described in 
these specific provisions, was retained in Sec. 1910.132. The 
employer's obligation to assure compliance with the individual 
requirements for particular types of PPE was intended to remain the 
same as if the words ``the employer shall ensure'' or similar language 
were affixed to each substantive PPE provision in the final rule. 
However, OSHA's compliance staff has encountered difficulties in using 
Secs. 1910.133, 1910.135, and 1910.136 because they do not explicitly 
assign the employer the responsibility for assuring that employees wear 
the designated equipment. Therefore, this technical amendment is 
necessary to restate that obligation within the text of these 
requirements.

DATES: This amendment is effective June 3, 1996.

FOR FURTHER INFORMATION CONTACT: Anne C. Cyr, Acting Director, Office 
of Information and Consumer Affairs, Occupational Safety and Health 
Administration, U. S. Department of Labor, Room N-3647, 200 
Constitution Ave., N. W., Washington, DC 20210. Telephone: (202) 219-
8151.

SUPPLEMENTARY INFORMATION: OSHA's final rule on personal protective 
equipment (PPE) for general industry was published on April 6, 1994 (59 
FR 16334), and became effective July 5, 1994. The PPE standards require 
the employer to assure that each employee wears appropriate equipment 
which protects the eyes, head, feet, and hands, from exposure to 
hazards in the workplace. Section 1910.132 clearly states that where 
such hazards are present, or are likely to be present, the employer has 
the obligation both to select proper PPE and to require each affected 
employee to wear it.
    Sections 1910.133, 1910.135, and 1910.136 require that each 
affected employee wear protective equipment for the eyes and face, 
head, and feet, respectively, when those parts of the body are exposed 
to hazards. The proposed version of each of those sections was prefaced 
with the words ``The employer shall ensure that'' the employees wear 
the equipment. In the final rule, OSHA deleted the prefatory language 
in response to various comments. The preamble to the final rule made 
clear that in making these deletions, the Agency intended to make no 
change in the substantive requirements between the proposed and final 
rules. That is, the employer was to be obligated to require the 
employee to wear eye, face, head and foot protection under 
Secs. 1910.133, 1910.135, and 1910.136, regardless of whether the words 
``the employer shall ensure'' were included in those standards. (see 
final rule preamble, 59 FR at 16335.)
    The reason for the language change from the proposal was concern by 
some commenters that the proposed language would result in their being 
held liable for violations of these standards, regardless of any 
exculpatory considerations such as employee misconduct. In making the 
changes, OSHA emphasized two points: first, that the proposed language 
would not have affected an employer's ability to raise defenses to a 
citation; and second, that it was the Agency's intention that the 
employer's obligations for compliance with standards issued under the 
OSH Act be unaffected by the changes from the proposed rule to the 
final rule.
    Since the final rule was issued, the revised language has caused 
difficulty for OSHA's compliance staff with regard to the employer's 
obligation to have employees wear PPE. That obligation, while 
specifically stated under Sec. 1910.132 for all PPE, is not explicitly 
spelled out in the specific provisions of Secs. 1910.133, 1910.135 and 
1910.136, for eye and head, face, and foot protection, even though it 
was the Agency's clearly stated intention that the obligation apply 
there, as well. Accordingly, OSHA has determined that it is necessary 
to make a technical amendment to those three sections, to bring them 
into line with the stated intention of the Agency in the preamble to 
the final rule.

[[Page 19548]]

    The current language of Secs. 1910.133, 1910.135, and 1910.136 
contains requirements that employees wear the particular PPE addressed 
by those sections. However, there is no specific text in any of these 
sections that directly addresses the employer and the employer's 
responsibilities for compliance. OSHA compliance staff have dealt with 
this situation to date by grouping their citations for violations of 
Secs. 1910.133, 1910.135, and 1910.136 with their citation under the 
general PPE requirement in Sec. 1910.132. Each of these provisions was 
intended in the final rule to stand on its own, and the Agency has 
determined that a technical amendment is necessary to correct the 
problem.
    This technical amendment inserts appropriate language into 
Secs. 1910.133, 1910.135, and 1910.136 which states the employer's 
obligation to ensure that each affected employee wears the specified 
types of PPE under these sections as well as under Sec. 1910.132, where 
the employer's responsibility in this area is already spelled out. It 
should also be noted that this technical amendment does not prevent the 
employer who is cited for a PPE violation from raising any affirmative 
defenses which would otherwise be applicable.
    Under 5 U.S.C. 553 and 29 CFR 1911.5, this constitutes a minor rule 
change which does not require public notice and comment. As noted 
above, it clarifies an obligation under the specific PPE standards 
which already applies to employers under the general rule in 
Sec. 1910.132, and implements determinations already made by the Agency 
in the preamble to the final rule. Accordingly, further public 
participation is not required. However, in order to allow enough time 
for information on the technical amendment to be distributed and 
implemented by employers, OSHA is making the amendment effective June 
3, 1996.

List of Subjects in 29 CFR Part 1910

    Eye protection; Face protection; Foot Protection; Hand protection; 
Footwear; Hard hats; Head protection; Occupational safety and health; 
Occupational Safety and Health Administration; Personal protective 
equipment; Safety glasses; Safety shoes.

Authority

    This document has been prepared under the direction of Joseph A. 
Dear, Assistant Secretary of Labor for Occupational Safety and Health, 
U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 
20210.
    Accordingly, pursuant to sections 4, 6 and 8 of the Occupational 
Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); 5 U.S.C. 553; 
Secretary of Labor's Order No. 1-90 (55 FR 9033), and 29 CFR Part 1911, 
29 CFR part 1910 is amended as set forth below.

    Signed at Washington, D.C., this 15th day of April, 1996.
Joseph A. Dear,
Assistant Secretary of Labor.
PART 1910--[AMENDED]
Subpart I--Personal Protective Equipment
    1. The authority citation for subpart I of part 1910 is revised to 
read as follows:

    Authority: Sections 4, 6 and 8, Occupational Safety and Health 
Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order 
No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or 
1-90 (55 FR 9033), as applicable.

    Sections 1910.132, and 1910.138 also issued under 29 CFR part 
1911.
    Sections 1910.133, 1910.135, and 1910.136 also issued under 29 
CFR part 1911 and 5 U.S.C. 553.
Sec. 1910.133  [Amended]
    2. Paragraphs (a)(1), (a)(2), (a)(5) of Sec. 1910.133 are amended 
by replacing the words ``Each affected employee shall use'' with the 
words ``The employer shall ensure that each affected employee uses''.
Sec. 1910.133  [Amended]
    3. Paragraph (a)(3) of Sec. 1910.133 is amended by removing the 
word ``Each'', adding the words ``The employer shall ensure that each'' 
in its place at the beginning of the paragraph, and by replacing the 
words ``shall wear'' with ``wears'' both places they appear in the 
paragraph.


Sec. 1910.135  [Amended]

    4. Paragraph (a)(1) of Sec. 1910.135 is amended by replacing the 
words ``Each affected employee shall wear protective helmets'' with the 
words ``The employer shall ensure that each affected employee wears a 
protective helmet''.


Sec. 1910.135  [Amended]

    5. Paragraph (a)(2) of Sec. 1910.135 is amended by replacing the 
words ``Protective helmets'' with the words ``The employer shall ensure 
that a protective helmet'', and by replacing the words ``shall be worn 
'' with the words ``is worn.''


Sec. 1910.136  [Amended]

    6. Paragraph (a) of Sec. 1910.136 is amended by replacing the words 
``Each affected employee shall wear'' with the words ``the employer 
shall ensure that each affected employee used.''

[FR Doc. 96-10433 Filed 5-1-96; 8:45 am]
BILLING CODE 4510-26-P