[Federal Register Volume 64, Number 61 (Wednesday, March 31, 1999)]
[Proposed Rules]
[Pages 15402-15441]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7114]



[[Page 15401]]

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Part II





Department of Labor





_______________________________________________________________________



Occupation Safety and Health Administration



_______________________________________________________________________



29 CFR Parts 1910, 1915, et al.



Employer Payment for Personal Protective Equipment; Proposed Rule

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

[[Page 15402]]



DEPARTMENT OF LABOR

Occupational Safety and Health Administration

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

[Docket S-042]
[RIN No. 1218-AB77]


Employer Payment For Personal Protective Equipment

AGENCY: Occupational Safety and Health Administration (OSHA), U.S. 
Department of Labor.

ACTION: Proposed rule; scheduling of informal public hearing.

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SUMMARY: Many Occupational Safety and Health Administration (OSHA) 
health, safety, maritime, and construction standards require employers 
to provide their employees with protective equipment, including 
personal protective equipment (PPE), when such equipment is necessary 
to protect employees from job-related injuries, illnesses, and 
fatalities.
    These requirements are codified in Part 1910 (General Industry 
standards), Part 1915 (Shipyard standards), Part 1926 (Construction 
standards), Part 1917 (Marine Terminal standards), and Part 1918 
(Longshoring standards) of Title 29 of the Code of Federal Regulations. 
These requirements address PPE of many kinds: hard hats, gloves, 
goggles, safety shoes, safety glasses, welding helmets and goggles, 
faceshields, chemical protective equipment and clothing, fall 
protection equipment, and so forth. The provisions in OSHA standards 
that require PPE generally state that the employer is to provide such 
PPE; however, some of these provisions do not specify that the employer 
is to provide such PPE at no cost to the employee.
    In this rulemaking, OSHA is proposing regulatory language to 
clarify that, with only a few exceptions for specific types of PPE, the 
employer must pay for the PPE provided. OSHA is proposing to except in 
certain circumstances three specific kinds of PPE from this 
requirement: safety-toe protective footwear, prescription safety 
eyewear, and the logging boots required by 29 CFR 1910.266(d)(1)(v).
    OSHA believes that the proposed rule will better implement the 
intent of the Occupational Safety and Health Act, make clear who is to 
pay for what kind of PPE, and improve protection to employees who must 
wear PPE.
    The proposed rule would not require employers to provide PPE where 
none has been required before. Instead, the proposed rule merely 
stipulates that the employer must pay for all required PPE, except in 
the limited cases specified above. Since employers already pay for most 
of the required PPE, the proposed rule would shift to employers only 
the cost of that portion of PPE currently being paid for by their 
employees. Based on information from a number of surveys, studies, and 
a panel of PPE experts, OSHA believes that, even making worst case 
assumptions, this shift in costs from employees to employers will 
impose annualized costs of no more than $61.9 million across all 
affected industries. To the extent that the proposed rule enhances the 
use of PPE, employers will obtain about a three-fold return on their 
investment in PPE, i.e., will save an estimated three dollars in injury 
and illness costs for every dollar they invest in PPE.
    OSHA is also scheduling an informal public hearing to provide 
interested parties the opportunity to orally present information and 
data related to the proposed rule.

DATES: Comments. Written comments on the proposed standard must be 
postmarked by June 14, 1999. Comments that are transmitted 
electronically through OSHA's internet site must be transmitted by June 
14, 1999. The hearing is scheduled to begin at 9:30 a.m. on June 22, 
1999.
    Informal public hearing. Notices of intention to appear at the 
informal public hearing must be postmarked by June 1, 1999. Hearing 
participants requesting more than 10 minutes for their presentations, 
and participants who will submit documentary evidence at the hearing, 
must submit the full text of their testimony and all documentary 
evidence to the Docket Office, postmarked no later than June 14, 1999.

ADDRESSES: Comments. Submit four copies of written comments, notices of 
intention to appear at the informal public hearing, testimony, and 
documentary evidence to the OSHA Docket Office, Docket S-042, Room N-
2625, U.S. Department of Labor, 200 Constitution Ave., NW, Washington, 
DC 20210. (Telephone: (202)693-2350) Please identify the document at 
the top of the first page as either a comment, notice of intention to 
appear, testimony, or documentary evidence. Comments of 10 pages or 
less may be faxed to the Docket Office, if followed by hard copy 
postmarked within two days. The OSHA Docket Office fax number is 
(202)693-1648.
    Comments may also be submitted electronically through OSHA's 
Internet site at URL, http://www.osha-slc.gov/e-comments/e-comments-
ppe.html. Please be aware that information such as studies, journal 
articles, and so forth cannot be attached to the electronic response 
and must be submitted in quadruplicate to the above address. Such 
attachments must clearly identify the respondent's electronic 
submission by name, date, and subject, so that they can be attached to 
the correct response.
    Informal public hearing. The hearing will be held in the auditorium 
of the U.S. Department of Labor (Frances Perkins Building), 200 
Constitution Avenue N.W., Washington, D.C.

FOR FURTHER INFORMATION CONTACT: Ms. Bonnie Friedman, OSHA Office of 
Information and Consumer Affairs, Room N-3647, U.S. Department of 
Labor, 200 Constitution Avenue, NW, Washington, DC 20210. Telephone: 
(202) 693-1999.

SUPPLEMENTARY INFORMATION:

I. Table of Contents

    The preamble and proposed standard are organized into twelve 
sections as follows:

I. Table of Contents
II. Background
III. Legal Considerations
IV. Summary and Explanation of the Proposed Rule
    A. Introduction
    B. Reasons Why the Agency Believes that Employers Must Pay for 
PPE
    C. Scope of the Proposed Rulemaking
    D. Current OSHA Requirements Concerning Payment for PPE
    E. Advisory Committee on Construction Safety and Health
    F. Explanation of Proposed Requirement
V. Issues Pertaining to the Proposed Rule
VI. Preliminary Economic Analysis
VII. Public Participation
VIII. State-plan States
IX. OSHA's Supplementary Statement of Reasons For Its Interpretation 
of 29 CFR 1910.132(a)
X. List of Subjects in 29 CFR parts 1910, 1915, 1917, 1918, and 1926
XI. Authority and Signature
XII. Proposed Standards

II. Background

    Employees often need to wear protective equipment, including 
personal protective equipment (PPE), to be protected from injury, 
illness, and death caused by exposure to workplace hazards. Throughout 
this document OSHA uses the abbreviation PPE to cover all types of 
protective equipment, including personal protective equipment, because 
the abbreviation is widely used and understood to include all such 
equipment. The abbreviation PPE includes protective equipment that an 
employee uses or wears, such as fall arrest systems, safety shoes, and 
protective gloves. There are many

[[Page 15403]]

situations in which PPE is necessary to protect employees from hazards. 
For example, protective gloves can protect hands from lacerations, 
burns, absorption of toxic chemicals, and abrasion. Safety shoes 
protect an employee's feet from being crushed by falling objects. 
Respirators can protect employees from being over-exposed to toxic 
substances. There are many other examples.
    Many OSHA standards require employers to provide PPE to their 
employees. Some indicate in general terms when PPE is to be worn, and 
what is to be worn (see, for example, Sec. 1910.132). Other provisions 
are very specific, such as 29 CFR 1910.266(d)(1)(iv), which requires 
chain saw operators to wear protective leggings during specific 
operations, and 29 CFR 1910.1027(g), which requires respiratory 
protection for workers exposed to cadmium above a certain PEL, and 
explicitly states that the employer must pay for the respirator.
    OSHA derived its PPE standards from many sources. In its first two 
years, OSHA, pursuant to section 6(a) of the OSH Act, adopted many 
Federal and national consensus standards dealing with PPE that had been 
written by many different standards development committees. OSHA itself 
has been issuing both health and safety standards requiring appropriate 
PPE for 28 years. Because of the many sources for these standards, the 
language requiring the use of PPE has varied.
    The language used in OSHA's PPE standards has generally been clear 
that the employer must provide the PPE and ensure that employees wear 
it. However, the regulatory language regarding the employer's 
obligation to pay for the PPE has varied.
    OSHA's health standards issued after 1977 have made it clear both 
in the regulatory text and in the preamble that the employer is 
responsible for providing necessary PPE at no cost to the employee. 
See, for example, OSHA's inorganic arsenic standard issued in 1978 at 
29 CFR 1910.1018(h)(2) (i) and (j), and the recent respirator standard, 
issued January 8, 1998 (63 FR 1152).
    The regulatory text and preamble discussion for some safety 
standards have also been absolutely clear that the employer must both 
provide and pay for PPE. See, for example, the logging standard at 29 
CFR 1910.266(d)(1)(iii) and (iv). The logging standard does, however, 
make an exception for certain types of logging boots (see 29 CFR 
1910.266(d)(1)(v)). In the case of foot protection, such as logging 
boots, paragraph (d)(l)(v) of that standard leaves the issue of who 
pays for some kinds of logging boots open for negotiation and agreement 
between the employer and employee.
    On the other hand, the regulatory text of some safety standards has 
been less clear. For example, 29 CFR 1910.132(a) is the general 
provision requiring employers to provide PPE when necessary to protect 
employees. This provision states that the PPE must be provided, used, 
and maintained in a sanitary and reliable condition. It does not 
specifically state that the employer must pay for it. In some cases, 
employers have interpreted this requirement to mean that they must pay 
for as well as provide the PPE, while in other cases, employers have 
understood this requirement to mean only that they must provide the 
PPE.
    OSHA attempted to establish a policy and clarify the issue of 
payment for required PPE in a memorandum to its field staff dated 
October 18, 1994, ``Employer Obligation to Pay for Personal Protective 
Equipment.'' OSHA stated that for all PPE standards the employer must 
both provide, and pay for, the required PPE, except in limited 
situations. The memorandum indicated that where PPE is very personal in 
nature and usable by the worker off the job, such as is often the case 
with steel-toe safety shoes (but not metatarsal foot protection), the 
issue of payment may be left to labor-management negotiations. This 
memorandum was intended to clarify the Agency's policy with regard to 
payment for required PPE.
    Very recently, the Occupational Safety and Health Review Commission 
declined to accept as Agency policy the interpretation embodied in the 
1994 memorandum as it applied to Sec. 1910.132(a), OSHA's general PPE 
standard for general industry, in Secretary of Labor v. Union Tank Car, 
OSHRC Docket No. 96-0563. In that case, an employer was issued a 
citation for failing to pay for metatarsal foot protection and welding 
gloves. The Commission vacated the citation, finding that the Secretary 
had failed to adequately explain the policy outlined in the 1994 
memorandum in light of several earlier letters of interpretation from 
OSHA that were inconsistent with that policy.
    OSHA believes that it is important that the employer both provide 
and pay for PPE and ensure that employees wear it when necessary. OSHA 
believes that this view reflects the direction of the OSH Act and is 
consistent with the legislative history. Employers must maintain a safe 
place of work in all its aspects, and may not receive a competitive 
advantage by failing to pay for necessary safety equipment, including 
personal protective equipment. OSHA has considered the requirement for 
employer payment in many specific rulemakings and has concluded, based 
on the record in each case, that this requirement will increase 
employee protection.
    The present proposal will also lead to greater consistency among 
OSHA standards. Accordingly, OSHA is proposing to require that the 
employer pay for all PPE required by OSHA standards, except for safety-
toe protective footwear and prescription safety eyewear that meet all 
three of the following conditions: (1) the employer permits such 
footwear or eyewear to be worn off the job-site; (2) the footwear or 
eyewear is not used at work in a manner that renders it unsafe for use 
off the job-site; and (3) such footwear or eyewear is not designed for 
special use on the job. Employers are not required to pay for the 
logging boots specified in 29 CFR 1910.266(d)(1)(v), as discussed 
above.
    OSHA believes that the proposed requirement will better protect 
employees from work-related illness, injury, and death. Employers are 
in a better position to identify and select the correct equipment and 
to maintain it properly. They have the financial resources to purchase 
PPE of necessary quality and to pay for replacements as necessary. The 
statutory reasons for requiring the employer to pay for PPE are 
discussed at greater length in the Legal Considerations section of this 
preamble, and the health and safety reasons are discussed below, in the 
Summary and Explanation section of this preamble.
    OSHA preliminarily concludes, for the reasons stated, that the 
Agency's standards should clearly require the employer to provide and 
pay for PPE. Accordingly, OSHA is proposing such a requirement. 
Rulemaking under section 6(b) of the Act will provide for full public 
input on all issues. The standard will, once promulgated, provide clear 
direction to employers and employees.
    OSHA is proposing this requirement for general industry, 
construction, shipyards, longshoring, and marine terminals. OSHA has 
consulted the Advisory Committee for Construction Safety and Health on 
this proposal, as required by the Construction Safety Act.
    OSHA requests comments on all relevant issues, including the 
specific issues listed in the Issues section of this preamble.

[[Page 15404]]

III. Legal Considerations

A. General Authority Under the OSH Act

    The Occupational Safety and Health Act and the statute's 
legislative history demonstrate that employers are expected to pay the 
costs of complying with OSHA's safety and health standards. At section 
2(a) of the OSH Act, Congress announced its determination that 
occupational injury and illness should be eliminated as much as 
possible: ``The Congress finds that occupational injury and illness 
arising out of work situations impose a substantial burden upon, and 
are a hindrance to, interstate commerce in terms of lost production, 
wage loss, medical expenses, and disability compensation payments.'' 29 
U.S.C. 651(a). Congress therefore declared ``it to be its purpose and 
policy . . . to assure so far as possible every working man and woman 
in the Nation safe and healthful working conditions.'' 29 U.S.C. 
651(b).
    To achieve this end, the Act directs that ``employers shall comply 
with occupational safety and health standards . . . issued pursuant to 
this Act,'' 29 U.S.C. 654(a) (2), and limits OSHA's enforcement 
authority to employers. 29 U.S.C. 658, 659(a). See United Steelworkers 
of America v. Marshall, 647 F.2d 1189, 1230-1231 (D.C. Cir. 1980). This 
statutory scheme allocates to employers sole legal responsibility for 
achieving compliance with safety and health standards. Atlantic & Gulf 
Stevedores v. OSHRC, 534 F.2d 541, 533 (3d Cir. 1976). Because 
employers are charged with the responsibility for achieving safe and 
healthful workplaces, they must bear the concomitant financial 
obligation. Id. The Act's terms, including the definition in section 
3(8) of an occupational safety and health standard as one which 
``requires . . . the adoption or use of one or more practices, means, 
methods, operations, or processes, reasonably necessary or appropriate 
to provide safe or healthful places of employment,'' 29 U.S.C. 652(8), 
give OSHA broad discretion to devise means to achieve safe and 
healthful workplaces and to charge employers for the costs of 
reasonably necessary requirements. United Steelworkers, 647 F.2d at 
1230-1231.
    The employer's general financial responsibility is further 
evidenced in the Act's legislative history in the Cotton Dust decision 
(American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 519-
521(1980)), the Supreme Court interpreted the legislative history as 
showing that Congress was aware of the Act's potential to impose 
substantial costs on employers but believed such costs to be 
appropriate when necessary to create a safe and healthful working 
environment. Congress thus viewed the costs of health and safety as a 
cost of doing business. Senator Yarborough, a co-sponsor of the [Act], 
stated:

We know the costs would be put into consumer goods but that is the 
price we should pay for the 80 million workers in America . . .

Senator Eagleton commented that:

[the costs that will be incurred by employers in meeting the 
standards of health and safety to be established under this bill 
are, in my view, reasonable and necessary costs of doing business.

Other Members of Congress voiced similar views (American Textile Mfrs. 
Inst., Inc. v. Donovan, 452 U.S. 490, 519-521 (1980) (ATMI) (internal 
citations omitted, original emphasis)). See also Forging Indus, Ass'n 
v. Secretary of Labor, 773 F.2d 1436, 1451 (4th Cir. 1985) (en banc) 
(which stated that, in view of the Supreme Court's ``clear statement'' 
in ATMI about Congress' intent that employers bear the costs of safety 
and health, OSHA may logically require employers to pay for hearing 
protectors under the hearing conservation standard); S. Rep. No. 91-
1282, 91st Cong. 2d Sess. 4 (1970), reprinted in, Senate Comm. On Labor 
and Public Welfare, 92nd Cong. 1st Sess., Legislative History of the 
Occupational Safety and Health Act of 1970 (Legislative History) 324, 
510-511, 854, 1150, 1188, 1201.
    Congress was also concerned that the costs imposed by OSHA rules be 
borne fairly by employers within and across all affected industries and 
believed that uniform enforcement was crucial to reduce or eliminate 
the disadvantage that a conscientious employer might experience where 
inter-industry or intra-industry competition is present. Legislative 
History at 854; ATMI, 452 U.S. at 521. It also recognized that many 
small firms might not be able to make the necessary investment in 
safety and health unless all firms were required to do so. Legislative 
History at 144. For these reasons, Congress did not intend to allow 
individual employers to decide who should pay the costs of complying 
with OSHA standards. See United Steelworkers, 647 F.2d at 1236; Forging 
Indus. Ass'n, 773 F.2d at 1451-1452.

B. Other Statutory Considerations

    In Industrial Union Department, AFL-CIO v. American Petroleum 
Institute, 448 U.S. 607 (1980) (Benzene), the Supreme Court ruled that, 
before OSHA can issue a new standard, the Agency must find that the 
hazard being regulated poses a significant risk to workers and that a 
new, more protective, standard is ``reasonably necessary and 
appropriate'' to reduce that risk. The requirement to find a 
significant risk does not mean, however, that OSHA must ``wait for 
deaths to occur before taking any action,'' id. at 655, or ``support 
its findings with anything approaching scientific certainty.'' Id. at 
656. ``[T]he requirement that a `significant' risk be identified is not 
a mathematical straightjacket.'' Id. at 655.
    The Act allows OSHA substantial latitude to devise means to reduce 
or eliminate significant workplace hazards. Clearly, OSHA need not make 
individual quantitative or qualitative risk findings for every 
regulatory requirement in a standard. Once OSHA has determined that a 
significant risk of material impairment of health or well being is 
present, and will be redressed by a standard, the Agency is free to 
develop specific requirements that are reasonably related to the Act's 
and standard's remedial purpose. OSHA standards are often designed to 
reduce risk through an integrated system of safety practices, 
engineering controls, employee training, and other ancillary 
requirements. Courts have upheld individual requirements based on 
evidence that they increase the standard's effectiveness in reducing 
the risk posed by significant workplace hazards. See Forging Indus. 
Ass'n., 773 F.2d at 1447-1452 (finding ancillary provisions of hearing 
conservation standard, including requirements for audiometric testing, 
monitoring, and employer payment for hearing protectors, reasonably 
related to the standard's purpose of achieving a safe work 
environment); United Steelworkers, 647 F.2d at 1237-1238 (finding lead 
standard's medical removal protection (MRP) provisions reasonable).
    Similarly, the courts have held that the Agency must consider other 
ancillary provisions that could provide additional protection if the 
standard's exposure limits will not eliminate significant risk. 
Building and Constr. Trades Dept. AFL-CIO v. Brock, 838 F.2d 1258, 1271 
(D.C. Cir. 1988). (Remand to consider including in asbestos standard 
additional provisions to reduce smoking-related asbestos risks); 
National Grain & Feed Ass'n v. OSHA, 866 F.2d 717, 734-735 (5th Cir. 
1989) (directing OSHA to consider extending the action level for clean-
up measures from certain priority areas to the entire facility where 
such an

[[Page 15405]]

extension might further reduce the risk of fire and explosions).
    OSHA standards must also be technologically and economically 
feasible, and cost effective. A standard is technologically feasible if 
the protective measures it requires already exist, can be brought into 
existence with available technology, or can be created with technology 
that can reasonably be expected to be developed. ATMI, 452 U.S. at 513. 
A standard is economically feasible if industry can absorb or pass on 
the cost of compliance without threatening its long term profitability 
or competitive structure. ATMI, 452 U.S. at 530 n.55.
    A standard is cost effective if the protective measures it requires 
are the least costly of the available alternatives that achieve the 
same level of protection. ATMI, 452 U.S. at 514 n.32; International 
Union, UAW v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994). Finally, if OSHA 
promulgates a rule that differs substantially from an existing national 
consensus standard, the Agency must publish in the Federal Register a 
statement of reasons why the rule adopted will better effectuate the 
purposes of the Act than the national consensus standard. 29 U.S.C. 
655(b)(8).

C. Historical Overview: OSHA's Determinations in Prior Rulemakings That 
Employers Should Pay for Necessary Personal Protective Equipment

    Since 1978, OSHA has promulgated many occupational health and 
safety standards explicitly requiring employers to furnish personal 
protective equipment ``at no cost to employees.'' 1
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    \1\ See 29 CFR 1910.95(i)(1), (i)(3) (hearing conservation); 29 
CFR 1910.1001(g)(1), (g)(2)(i), (h)(1) (asbestos); 29 CFR 
1910.1018(h)(1), (h)(2)(i), (j)(1) (inorganic arsenic); 29 CFR 
1910.1025(f)(1), (g)(1) (lead); 29 CFR 1910.1027(g)(1), (i)(1) 
(cadmium); 29 CFR 1910.1028(g)(1), (g)(2)(i), (h) (benzene); 29 CFR 
1910.1030(d)(3)(i), (d)(3)(ii) (bloodborne pathogens); 29 CFR 
1910.1043(f)(1), (f)(3) (cotton dust); 29 CFR 1910.1044(h)(1), 
(h)(2), (h)(3)(i), (j)(1) (1,2-dibromo-3-chloropropane); 29 CFR 
1910.1045(h)(2)(i), (j)(1) (acrylonitrile); 29 CFR 
1910.1047(g)(2)(i), (g)(4) (ethylene oxide); 29 CFR 1910.1048(g)(1), 
(h) (formaldehyde); 29 CFR 1910.1050(h)(2)(i), (i)(1) (4,4, 
methylenedianiline); 29 CFR 1910.1051(h)(1), (i) (1,3-butadiene); 29 
CFR 1910.1052 (g)(1), (h)(1) (methylene chloride); 29 CFR 
1910.146(d)(4)(iv) (confined spaces); 29 CFR 1910.156(e)(1)(i) (fire 
brigades); 29 CFR 1910.266(d)(1)(iii), (d)(1)(iv), 
(d)(1)(vi),(d)(1)(vii) (logging). See also OSHA's recently revised 
respiratory protection standard, promulgated January 8, 1998, 63 FR 
1271.
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    In these rulemakings, OSHA has stated that language explicitly 
requiring that PPE be furnished without cost to employees is necessary 
to effectuate the purposes of the Act and to ``clarif[y] OSHA's 
position which has long been implicit in health standards 
proceedings.'' See, e.g., 42 FR 27387 (June 23, 1978) (cotton dust 
preamble); 43 FR 11523 (March 17, 1978) (dibromo-3-chloropropane 
preamble); 52 FR 46266 (Dec. 4, 1987) (formaldehyde preamble). OSHA has 
also concluded in its rulemaking on the Cancer Policy that personal 
protective equipment should be treated no differently from engineering 
controls for the purposes of cost-allocation (45 FR 5261, Jan. 22, 
1980):

    The requirement that employers pay for protective equipment is a 
logical corollary of the accepted proposition that the employer must 
pay for engineering and work practice controls. There is no rational 
basis for distinguishing the use of personal protective equipment 
[from other controls]. The goal in each case is employee protection; 
consequently the responsibility of paying for the protection should, 
in each case, rest on the employer.

    OSHA has further determined that requiring employers to pay for 
personal protective equipment contributes to increased health and 
safety protection in several ways. The employer is most knowledgeable 
about hazards existing in the workplace and is therefore best able to 
select and maintain appropriate protective equipment. Requiring 
employers to purchase personal protective equipment ensures that they 
retain control over the selection, issuance, maintenance, and use of 
the devices. See 43 FR 19619 (May 5, 1978) (inorganic arsenic 
preamble); 46 FR 4153 (hearing conservation preamble). Shifting the 
financial burden to employees, on the other hand, ``risks losing the 
necessary control over the organized and consistent selection, 
issuance, maintenance and use of such equipment.'' 46 FR 4153 (hearing 
conservation preamble).
    OSHA has also concluded that charging employers with the cost of 
personal protective equipment, as well as other requirements imposed by 
standards, is necessary to ensure the employee's voluntary cooperation 
in the employer's safety program. In requiring employers to pay for 
hearing protectors as part of the hearing conservation standard, OSHA 
relied upon the testimony of the director of the Safety and Health 
Department of the International Brotherhood of Teamsters:

    [an] employer's attempt to require its employees to purchase 
their own personal ear protective devices would cause resentment 
among the workers and clearly demonstrate to them the lack of 
commitment on the part of their employer in preventing hearing loss. 
Such a requirement would discourage the use of ear protective 
devices and would create an adversarial atmosphere in regard to the 
hearing conservation program. 46 FR 4153 (emphasis added).

    OSHA has found that the need to ensure voluntary cooperation by 
employees was also an important reason to require employers to pay for 
other protections in standards, including medical examinations and 
medical removal protection (MRP). In promulgating the lead standard, 
OSHA relied upon extensive evidence that employees' fears of adverse 
economic consequences from participation in a medical surveillance 
program could seriously undermine efforts to improve employee health. 
43 FR 54442-54449 (Nov. 21, 1978). OSHA cited data from numerous 
sources to show that employees' concerns about the possible loss of 
income would make them reluctant to participate meaningfully in any 
program that could lead to job transfer or removal. Id. OSHA 
promulgated the lead standard's M.R.P. provision ``specifically to 
minimize the adverse impact of this factor on the level and quality of 
worker participation in the medical surveillance program.'' Id. at 
54449.
    Courts have upheld OSHA's statutory authority to charge employers 
with the costs of complying with standards and have affirmed the 
Agency's findings of benefits accruing from this requirement. In 
reviewing the lead standard, the D.C. Circuit found that ``[the] scheme 
of the statute, manifested in both the express language and the 
legislative history . . . appears to permit OSHA to charge employers 
the cost of any new means it devises to protect workers.'' United 
Steelworkers, 647 F.2d at 1231. The court found reasonable OSHA's 
determination that wage retention and other M.R.P. benefits were 
necessary in view of employee resistance to programs that could result 
even in limited loss of earnings. Id. at 1237. Moreover, the court 
found that OSHA could legitimately consider benefits that were more 
indirect. It upheld the standard's requirement that employers pay for 
medical opinions from physicians who are selected by employees, in part 
because employees will be more likely to cooperate in, and improve the 
accuracy of, medical examinations performed by physicians they trust. 
Id. at 1239. See also Forging Indus. Ass'n, 773 F.2d at 1451-1452 
(upholding the requirement in the hearing conservation standard that 
employers pay for hearing protectors).
    Some have suggested that employee payment for PPE helps encourage 
employees to maintain their PPE properly. OSHA notes that employees, 
because their own safety is at stake, already have significant 
incentives to assure that PPE is maintained in a manner that assures 
that the PPE will

[[Page 15406]]

function safely. Requiring employee payment for PPE could encourage 
employees to consider a trade-off between assuring the safety of the 
PPE and assuring its longevity, even though the PPE may be worn or 
damaged to the point that it no longer functions properly. Employee 
payment could also lead to perverse incentives for employers. Given a 
choice between engineering controls that the employer must pay for, and 
PPE that would be paid for by employees, employers would have a strong 
incentive to use PPE even though engineering controls would be more 
protective and might even be cheaper. OSHA views the theoretical loss 
of some employee incentive to maintain equipment as minor compared to 
the importance of assuring employers provide a safe and healthy 
workplace.

D. The Proposed PPE Revisions Comply With Statutory Criteria

    OSHA believes that the proposed PPE revisions readily comply with 
the statutory criteria outlined above. In the Agency's view, the 
proposed language that, with certain exceptions, employers must provide 
personal protective equipment under existing standards ``at no cost to 
employees,'' does no more than clarify a requirement legally implicit 
under the Act. Congress itself intended to impose the costs of safety 
and health on employers and charged employers with sole responsibility 
for compliance with standards. ATMI, 452 U.S. at 520-5211; United 
Steelworkers, 647 F.2d at 1231. The requirement that employers pay for 
the means necessary to achieve compliance is implicit in the statute 
itself, and therefore, is properly an implied term of every 
occupational safety or health standard.
    Based on the OSH Act's implicit cost-allocation scheme, OSHA has 
interpreted standards requiring employers to ``provide'' personal 
protective equipment to mean that this equipment must be furnished to 
employees at no charge. For example, OSHA has interpreted the coke oven 
emissions standard, 29 CFR 1910.1029(h)(1), which states that ``the 
employer shall provide and assure the use of appropriate protective 
clothing and equipment,'' to require that personal protective equipment 
be furnished at no charge to coke oven workers. The Occupational Safety 
and Health Review Commission held that interpreting ``provide'' to mean 
``pay for'' was consistent with the statutory intent and with the 
Agency's prior published interpretation. Secretary of Labor v. Erie 
Coke Corp., 15 O.S.H. Cas. (BNA) 1561, 1563-1565 (Review Comm. 1992).
    OSHA has also interpreted its general personal protective equipment 
standards to require that equipment be furnished at no cost to 
employees. In 1994, OSHA issued a compliance memorandum entitled 
``Employer Obligation to Pay for Personal Protective Equipment.'' In 
this compliance memorandum, OSHA interpreted 29 CFR 1910.132, 29 CFR 
1926.95, and other PPE standards to require employers to provide PPE at 
no cost to employees, except where the equipment is personal in nature 
and usable off the job.
    OSHA recognizes that the Occupational Safety and Health Review 
Commission has subsequently rejected OSHA's policy interpretation of 29 
CFR 1910.132 as requiring employer payment for PPE. See Union Tank Car 
Co., OSHRC No. 96-0563 (assuming the 1994 memorandum represented a 
change in position, and finding that OSHA had not presented an adequate 
justification for the change).
    Section IX of this preamble, OSHA's Supplementary Statement of 
Reasons for its Interpretation of 29 CFR 1910.132(a), contains a 
detailed explanation of OSHA's interpretation of section 1910.132(a), 
which addresses in detail the Commission's concerns and demonstrates 
that the Agency's reading of its general personal protective equipment 
standard is consistent with the statutory scheme and is reasonable.
    In OSHA's view, the proposed rule simply clarifies the employer's 
pre-existing obligations under the personal protective equipment 
standards. See Edison Elec. Inst. v. OSHA, 849 F.2d 611, 620 (D.C. Cir. 
1988); OSHA's Supplemental Statement of Reasons. Assuming, however, 
that the language in existing Sec. 1910.132 does not clearly convey a 
requirement for employer payment, the proposed rule is necessary and 
appropriate to conform the standard to the requirements of the statute 
and to the position the Agency has consistently adopted in rulemaking 
proceedings for more than twenty years.
    The Agency believes, moreover, that implementation of the proposed 
revisions will contribute in a significant way to a safer work 
environment. The existing PPE standards reflect a determination that 
the use of PPE is necessary to reduce a significant risk of 
injury.2 OSHA considers the proposed revisions to be 
ancillary requirements of the existing PPE standards. They are 
reasonably related to the existing standards' purpose of preventing 
injury by requiring the provision and use of appropriate personal 
protective equipment.
---------------------------------------------------------------------------

    \2\ For existing standards adopted as national consensus or 
established Federal standards pursuant to section 6(a) of the Act, 
the determination of significant risk is implied in Congress's 
direction that such standards should be promulgated as 
``occupational safety or health standard[s].'' 29 U.S.C. 655(a). The 
Court in Benzene interpreted the definition of ``occupational safety 
and health standard'' in section 3(8) of the Act to mean a standard 
that addresses a significant risk of harm. 448 U.S. at 639-642.
---------------------------------------------------------------------------

    Moreover, OSHA believes that the principle expressed in National 
Grain and Feed, discussed above, provides analogous support for this 
proposed rule. In amending 29 CFR 1910.132 in 1994 to include new 
requirements for, among other things, hazard assessments and employee 
training, the Agency examined PPE use in general industry. OSHA found 
that, although the standard had been in effect since 1971, the data 
demonstrated that a significant risk of injury attributable to the non-
use or misuse of PPE remained. See 59 FR 16335 (April 6, 1994). OSHA 
determined that compliance with the final rule would result in more 
widespread acceptance and use of appropriate PPE, and would, therefore, 
significantly reduce the risk of injury. However, OSHA did not find 
that compliance with the rule would eliminate the significant risk due 
to the non-use or misuse of PPE. As discussed below, there is evidence 
that requiring employers to pay for PPE will result in a further 
substantial reduction in the risk of non-use or misuse of PPE by 
centralizing the control over PPE programs, and by eliminating economic 
disincentives to the voluntary use of PPE. Cf. National Grain and Feed, 
866 F.2d at 735.
    As OSHA found in promulgating the hearing conservation standard, 
requiring employers to pay for personal protective equipment ensures 
that employers retain control over the selection, issuance, 
maintenance, and use of such equipment. OSHA believes that ensuring 
centralized control over these critical functions promotes a more 
organized and consistent approach to personal protective equipment 
requirements. See 46 FR 4153 (Jan 16, 1981). See also 43 FR 19619 
(Inorganic Arsenic) (May 5, 1978).
    OSHA also believes that employees are more likely to cooperate in 
achieving full compliance with existing standards if protective 
equipment is provided at no charge. The evidence adduced during the 
rulemaking for the lead standard demonstrated that many employees would 
be reluctant to participate fully in a program that could result in a 
loss of income. OSHA

[[Page 15407]]

believes that this problem is not limited to MRP provisions. In 
Secretary of Labor v. Phelps Dodge Corp., 11 O.S.H. Cas. (BNA) 1441, 
1443 (Rev. Comm. 1983), the Review Commission held that the employer 
did not provide medical examinations under the Inorganic Arsenic 
standard ``without cost to the employee'' when it allowed employees to 
take examinations only during their free time and did not reimburse 
them for travel expenses or the time consumed in taking the 
examinations. The Commission noted the ALJ's finding that when 
employees were required to provide their own transportation to and from 
the hospital and to sacrifice their personal time to take examinations, 
42% of them failed to participate.
    Such evidence, showing that employees often make decisions that 
risk their health and safety to avoid suffering economic loss, is 
relevant to the proposed revision. It is certainly reasonable to 
believe that employees who are furnished personal protective equipment 
at no charge are more strongly motivated to wear it, and to replace it 
promptly when worn or damaged, than are employees who must purchase 
such equipment. Indeed, OSHA is aware of evidence presented in 
enforcement litigation that employees have continued to use worn-out or 
defective items of personal protective equipment because of the cost of 
replacing this equipment. In the Union Tank case, the employee 
representative presented an affidavit that some employees taped or 
wrapped wire around their damaged metatarsal safety boots in order to 
avoid having to pay up to $130 per pair to replace them. Similarly, in 
Ormet Primary Aluminum Corp., OSHRC Docket No. 96-0470, an employee 
testified that he continued to wear safety boots, even though the 
protective steel toes were exposed and posed an electrocution hazard, 
because he could not afford a new pair. The employee also testified 
that some workers put a cement-like substance over the steel toes of 
their boots when the leather covering wore away, but that this practice 
was hazardous because the substance was flammable.
    Based on the available evidence, OSHA preliminarily concludes that 
the proposed revisions will significantly enhance compliance with 
existing standards. OSHA estimates that the proposed rule will prevent 
over 47,000 injuries that occur annually as a result of the non-use or 
misuse of personal protective equipment, including seven fatal 
injuries. See Section VI., Preliminary Economic Analysis.
    OSHA has also preliminarily concluded that excepting safety-toe 
footwear and prescription safety eyewear from the payment requirement 
is appropriate and does not conflict with the legislative intent. OSHA 
has long taken the position that employers should not be required to 
pay for safety-toe footwear because it is personal in nature and 
frequently worn off the job. See The Budd Co., 1 O.S.H. Cas. (BNA) 1548 
(Rev. Comm. 1974). OSHA believes that prescription safety eyewear 
shares these characteristics. Because of the special nature of safety-
toe footwear and prescription safety eyewear, the statutory and policy 
reasons for requiring employers to pay for other types of PPE do not 
carry the same weight for these types of PPE 3. OSHA 
believes that there is little statutory justification for requiring 
employers to pay for such personal equipment if it is used away from 
the workplace and if all three of the proposed conditions are met: (1) 
The employer permits the footwear or eyewear to be worn off the job-
site; (2) the footwear or eyewear is not used at work in a manner that 
renders it unsafe for use off the job-site; and (3) such footwear is 
not designed for special use on the job.
---------------------------------------------------------------------------

    \3\ In her brief to the Commission in Budd filed in 1973, the 
Secretary stated her interpretation that 29 CFR 1910.132(a) does not 
require employers to pay for safety shoes. The Secretary noted that 
``safety shoes are purchased by size, are available in a variety of 
styles, and are frequently worn off the job, both for formal and 
casual wear. Furthermore, it is neither feasible for a different 
employee to wear the shoes each day nor feasible that upon resigning 
from the position an employee will leave the shoes behind to be worn 
by another individual.'' See Section IX., OSHA's Supplemental 
Statement of Reasons For Its Interpretation of 29 CFR 1910.132(a).
---------------------------------------------------------------------------

    The Commission and one court of appeals have agreed with the 
Secretary's interpretation that 29 CFR 1910.132(a) does not require 
employees to pay for safety shoes. The Budd Co. O.S.H. Cas. (BNA) 1548 
(Rev.Comm. 1974); 513 F.2d 201, 205 (3d Cir. 1975). See also United 
Steelworkers, 647 F.2d at 1231 n.66 (noting special character of 
safety-toe protective footwear which the employee would wear off-the-
job as well as on-the-job). Moreover, OSHA's logging standard (see 29 
CFR 1910.266 (d)(1)(v)) provides analogous support for the proposed 
exceptions for safety shoes and prescription safety eyewear. OSHA 
excepted logging boots from among the types of equipment that employers 
must provide at no cost under the logging standard, based in part on 
evidence that logging boots are personal in nature and used away from 
work. See 59 FR 51684 (Oct. 12, 1994). See also section IX., OSHA's 
Supplementary Statement of Reasons for its Interpretation of 29 CFR 
1910.132(a). The three conditions OSHA is proposing to apply to the 
exception for safety-toe footwear and prescription safety eyewear all 
relate to off-site use. For example, if the employer prohibits off-site 
use of the footwear or eyewear, employees would clearly not be able to 
wear it off the job, and the exception would not apply. Similarly, if 
the footwear or eyewear is used at work in a way that makes it unsafe 
for use off the job, e.g., safety-toe footwear is worn in a lead 
chromate pigment plant, it would be unsafe for the employee to wear it 
at home, and the exception would not apply. Finally, if the footwear or 
eyewear is designed for special use on the job, e.g., the eyewear is 
built into a welding mask, or the footwear has built-in metatarsal 
guards as well as safety-toes, it could not be worn off-site, and the 
exception would not apply.
    If one or more of these conditions is not met for safety-toe 
footwear or prescription eyewear, the exception for these types of PPE 
does not apply, and the employer would be required to pay for the PPE.
    For these reasons, OSHA has preliminarily concluded that employers 
should not be required to pay for safety-toe protective footwear and 
prescription safety eyewear, provided that all three of the excepted 
conditions are met. However, as discussed in other sections of this 
document, OSHA seeks comment on whether these exceptions, and the 
conditions restricting their applicability, are appropriate and whether 
other types of personal protective equipment should be excepted or 
other limiting conditions should be considered.
    OSHA believes that compliance with the proposed standard is 
technologically feasible because the PPE affected by this rulemaking 
has already been shown to be technologically feasible in numerous other 
rulemakings, e.g., OSHA's 1994 PPE rulemaking and the individual 
rulemakings requiring particular types of PPE (e.g., fall protection in 
construction, and various shipyard employment standards). The affected 
PPE, as shown by the record evidence in these rulemakings, is widely 
manufactured, distributed, and used in workplaces in all industries. 
OSHA believes that the proposed standard is also economically feasible 
because the PPE of concern has been shown to be economically feasible 
in the earlier rulemakings referred to above and, additionally, for 
this proposed rule, as detailed in Section VI., Preliminary Economic 
Analysis. The proposed rule merely shifts some costs previously borne 
by employees to their employers.

[[Page 15408]]

Indeed, in its economic analyses of other rules requiring PPE, OSHA has 
always assumed that PPE would be paid for by the employer. The 
Preliminary Economic Analysis also indicates that to the extent that, 
the proposal enhances PPE use, employers will save money because their 
employees will avoid the injuries and illnesses that would otherwise 
continue to occur from the improper use of PPE. Finally, this preamble 
explains why the proposed regulatory text will enhance safety 
protection for workers and will better effectuate Congress' intent that 
employers pay for the costs of compliance with OSHA standards. 29 
U.S.C. 655(b)(8). Accordingly, the proposed standard complies with all 
applicable statutory criteria.

IV. Summary and Explanation of the Proposed Rule

A. Introduction

    OSHA is proposing to revise its standards requiring employers to 
provide PPE to clarify that the employer must pay for the PPE, except 
for safety-toe footwear and prescription safety eyewear that meets all 
three conditions--the employer permits off-site use, the footwear or 
eyewear is safe for off-site use, and the footwear or eyewear is not 
designed specially for on-site use. The logging boots required by 29 
CFR 1910.266(d)(1)(v) are also excepted from the employer payment 
requirement. This proposal applies to standards in the following 
industry sectors: general industry, construction, and maritime 
(including shipyards, marine terminals, and longshoring operations). It 
does not apply to agriculture.
    The Agency believes that requiring employers to pay for PPE is 
central to the effective implementation of the Act. As noted earlier in 
this preamble, OSHA is using the abbreviation PPE to cover all 
protective equipment, including personal protective equipment, that is 
provided to employees to protect them from workplace hazard. However, 
some inconsistent statements and interpretations by OSHA over the years 
regarding the Agency's PPE payment policy, and the recent Union Tank 
decision by the Review Commission, have now made it difficult for the 
Agency to uniformly enforce this policy.
    Therefore, OSHA is proposing to resolve this issue by clearly 
identifying, through regulation, who is required to pay for PPE. OSHA 
intends this rulemaking to lead to the consistent application of the 
Agency's protective equipment requirements throughout the regulated 
community and by Agency compliance personnel. The rulemaking process 
will also give interested parties an opportunity to participate in the 
Agency's decisions through written comments and informal public 
hearings.
    The following discussion presents the Agency's reasons and 
preliminary conclusions regarding the proposed revisions to its PPE 
standards, and explains the proposed requirements.

B. Reasons Why the Agency Believes That Employers Must Pay for PPE

    1. The OSHAct. The Occupational Safety and Health Act of 1970 
requires employers to provide a safe and healthful workplace for their 
employees. This mandate includes the financial obligation of employers 
to provide controls to address hazards that could cause injury or 
physical harm to their employees. (See the Legal Considerations section 
of this preamble for a more detailed discussion of the employer's 
obligation to pay for workplace protections.)
    2. PPE is also a hazard control measure. Most standards require 
employers to implement engineering controls, such as ventilation or 
barriers, and administrative controls, such as regulated areas or 
danger zones, because these are typically thought to be the primary 
ways to reduce hazardous exposures to employees. There has never been 
any doubt that employers pay for these controls.
    PPE is another type of control measure that is often necessary to 
reduce exposures to health and safety hazards. In many cases, PPE use 
supplements engineering, work practice, and administrative controls 
where such controls do not provide adequate protection. In some 
circumstances, such as in some maintenance work, PPE is used as the 
sole or primary means to protect employees. Consequently, it is 
appropriate for OSHA standards to require employers both to implement 
and to pay for PPE as a hazard control measure, just as they must do 
for engineering and administrative controls.
    OSHA standards require many different types of PPE to protect 
employees from the variety of hazards in the workplace. Table I 
indicates the kinds of PPE required by OSHA standards.

             Table I.--List of Personal Protective Equipment
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
                       Personal fall arrest system
 
--Safety belts.
--Body belts.
--Lifelines.
--Lanyards.
--Harnesses.
--Pole climbing systems.
--Climbing spikes.
--Ladder safety device belts.
--Window cleaners' safety straps.
 
                          Face & eye protection
 
--Side shields.
--Goggles.
--Face shields/masks.
--Safety glasses.
--Welding goggles.
 
                   Hand protection and arm protection
 
--Gloves (disposable, fabric, leather mesh, aluminized, chemical
 resistant).
--Rubber sleeves.
--Hand shields.
 
                           Hearing protection
 
--Ear plugs.
--Ear muffs.
                             Head protection
 
--Headgear.
--Helmets.
--Hard hats.
--Welding helmets.
 
                             Foot protection
 
--Safety shoes.
--Safety boots.
--Logging boots.
--Shin covers.
--Shoe covers.
--Logging chaps & kevlar pants/leg protection.
--Metatarsal protection.
 
                         Respiratory protection
 
--Air-purifying respirators.
--Atmosphere-supplying respirators, including supplied-air respirators
 and self-contained breathing apparatus.
--Escape-only respirators.
--Filtering face pieces (dust masks).
 
                           Protective clothing
 
--Aprons.
--Encapsulating chemical protective suits.
--Flame resistant jackets and pants.
 
                            Fire fighting PPE
 
--Head protection.
--Face & eye protection.
--Protective coats and trousers.
--Foot protection.
--Hand protection.
--Proximity suits.
 
                          Protective equipment
 
--Insulating blankets.
--Matting.
--Barriers.
--Mouthpieces.
--Finger Cots.
 
                          Lifesaving equipment
 
--Life preservers.
--Life jackets.
--Reflective work vests.
--Ring life buoys.
--Retrieval systems.
 
            Protective clothing for health-related substances
 
--Coveralls.
--Full body work clothing.
--Laboratory coats.
--Gowns.

[[Page 15409]]

 
--Disposable paper clothing.
--Shoe covers.
------------------------------------------------------------------------

    3. Employers are in the best position to provide the correct type 
of protective equipment and keep it in repair. OSHA believes that 
requiring employers to pay for PPE will directly improve safety and 
health because the employer is in the best position to select, order, 
and obtain the proper type and design of PPE, ensure that it is of the 
necessary quality, and maintain it.
    Employers are required to perform a hazard assessment of the 
workplace and select the correct type of PPE to protect employees from 
the hazards identified in that hazard assessment (Sec. 1910.132(d)). 
Employees often do not have the expertise to select the correct type of 
PPE, especially where the selection of appropriate PPE, such as fall 
protection equipment and respirators, may be complicated.
    OSHA also believes that employers are in the best position to keep 
the PPE in repair. Employers are required to maintain PPE in a sanitary 
and reliable condition (Sec. 1910.132(a)). Because of this 
responsibility, OSHA believes that employers can maintain better 
control over the inventory of PPE by periodically inspecting the PPE 
and, when necessary, repairing or replacing it due to damage or normal 
wear and tear.
    OSHA gave these reasons for requiring employers to pay for PPE in 
the final standard for logging operations (59 FR 51683, October 12, 
1994). A number of commenters supported this reasoning.
    OSHA first used this reasoning in rulemakings conducted in the 
1970's. For example, the Inorganic Arsenic standard explicitly requires 
employers to pay for respirators, protective clothing, and protective 
equipment, including gloves, shoes, and face shields or goggles. 29 CFR 
1910.1018(j)(1). The preamble to the rule states that it is the 
employer's obligation to provide protective equipment at no cost to the 
employee and that doing so puts the employer in the best position to 
provide the correct type of equipment and keep it in repair. 43 FR 
19619 (May 5, 1978). OSHA applied the same reasoning in requiring 
employers to pay for respirators when necessary to protect employees 
from exposure to cotton dust. 43 FR 27387 (June 23, 1978). These 
standards were subsequently upheld on appeal.
    In the recent respiratory protection standard, OSHA stated clearly 
that the employer must pay for any respirator required to be worn by 
employees. Although respirators are one of the more expensive types of 
PPE, there was no opposition to this requirement. 63 FR 1152, 1195, 
(January 8, 1998.)
    4. Requiring employees to pay for PPE may discourage their use of 
PPE. Another reason for requiring the employer to pay for PPE is that 
employees may be discouraged from using necessary PPE if they are 
responsible for paying for it and must select and buy it.
    In the preamble to the Hearing Conservation amendment, OSHA 
determined that employers should pay for hearing protectors based in 
part on the reasoning that permitting an employer to charge employees 
for hearing protectors could discourage the use of such devices and 
thereby undermine the effectiveness of the employer's hearing 
conservation program. 46 FR 4153 (January 16, 1981). The Fourth Circuit 
Court of Appeals upheld the standard's allocation of hearing protector 
costs to employers. Forging Indus. Ass'n v. Secretary of Labor, 773 
F.2d 1436, 1451 (4th Cir. 1985)(en banc). The Court noted in that case 
that the Supreme Court's finding in ATMI left no doubt that Congress 
intended to impose compliance costs on employers and that ``it is only 
logical that OSHA may require employers to absorb such costs.'' Forging 
Indus. Ass'n, 773 F.2d at 1451.
    One of the reasons OSHA has given for medical removal protection 
(MRP) benefits in its lead and cadmium standards is to encourage 
employee participation in the medical surveillance programs mandated by 
those standards. MRP protects the wages and other benefits of employees 
removed from exposure to a toxic substance because of an exposure--
related condition revealed by medical surveillance. In the preamble to 
the cadmium standard, OSHA stated ``(MRP) . . . increase(s) employee 
participation and confidence in the standard's medical surveillance 
program.'' 57 FR 42101, 42367 (September 14, 1992). Analogous reasoning 
supports the proposed requirement that employers pay for PPE. OSHA 
believes that requiring employers to pay for PPE will increase the 
likelihood that the employees will use the PPE and have confidence in 
the employer's PPE program. The requirement for MRP and OSHA's 
rationale were both specifically upheld in the lead decision, United 
Steelworkers v. Marshall, 647 F.2d 1189, 1231 (D.C. Cir. 1980).
    As discussed in the Background and Legal Considerations sections, 
OSHA has explicitly required employer payment for PPE in all health 
standards issued since 1977. This issue has been less clearly and 
directly addressed, however, in OSHA's safety standards. As discussed 
in the Background section, OSHA attempted to clear up any ambiguity in 
its 1994 memo to the field which stated that employer payment for PPE 
was generally required (with an exception for steel-toe safety footwear 
and prescription eyewear).
    5. Some State-Plan States already interpret their standards to 
require employers to pay for PPE. Several States with OSHA-approved 
State-plans already require employers to pay for PPE. These 
requirements have provided protection to employees without posing 
feasibility problems for employers. For example, the State of North 
Carolina requires employers to provide, at no cost to the employee, all 
personal protective equipment that the employee does not wear off the 
job-site for use off the job. However, this State requirement applies 
only to general industry workplaces.
    California standards are somewhat more extensive than those of 
North Carolina. Whenever California standards use the word ``provide,'' 
California State Courts have uniformly interpreted the standards to 
mean that the employer pays for all PPE (including any replacement PPE) 
in all industry sectors. The only exceptions are for PPE that reflect 
``special preferences'' by employees, such as prescription safety 
eyewear or shoes of higher quality than required, or that reflect the 
individual's style preference. Many other State-plan states, including 
Alaska, Arizona, Indiana, Kentucky, New York, and Minnesota, either 
require the employer to pay for all PPE or follow the practice outlined 
in Federal OSHA's 1994 memo to the field.

C. Scope of Proposed Rulemaking

    The proposal applies to the following industry sectors: general 
industry, construction, and maritime (shipyard employment, marine 
terminals, and longshoring). It does not apply to agriculture because 
OSHA does not have general standards for PPE use in agriculture. 
However, some employees in agriculture are covered by two general 
industry standards, the logging standard (29 CFR 1910.266) and the 
cadmium standard (29 CFR 1910.1027), which specifically require 
employers to pay for required PPE (except in the case of the logging 
boots specified in 1910.266(d)(l)(v), which are specifically exempted 
from the requirements of the

[[Page 15410]]

proposed standard). The PPE requirements in these two standards will 
continue to apply in agriculture.
    Even though the types of PPE may vary across and within industry 
sectors, the same OSHA policy considerations on payment apply to all of 
them. In addition, many OSHA safety and health standards already 
contain provisions requiring the employer to pay for protective 
equipment and PPE.
    Table II lists many OSHA provisions requiring the use of protective 
equipment and PPE. The table identifies the provision, and the type of 
PPE required by that provision.

               Table II.--PPE Provisions in OSHA Standards
------------------------------------------------------------------------
    29 CFR OSHA references                    Type of PPE
------------------------------------------------------------------------
             Part 1910--General Industry 6(a) Standards \1\
------------------------------------------------------------------------
Sec.  1910.28(g)(9)..........  Safetybelt and lifeline.
Sec.  1910.28(j)(4)..........  Safetybelt and lifeline.
Sec.  1910.94(c)(6)(iii)(a)..  Air-supplied respirator.
Sec.  1910.94(d)(9)(ii)......  Rubber and impervious boots.
Sec.  1910.94(d)(9)(iii).....  Shoes.
Sec.  1910.94(d)(9)(iv)......  Impervious gloves.
Sec.  1910.94(d)(9)(v).......  Impervious aprons, coats.
Sec.  1910.94(d)(9)(vi)......  Jackets, chemical goggles, face shields,
                                respirators.
Sec.  1910.132(a)............  Personal protective equipment, eye, face,
                                head, extremities, protective clothing,
                                and respiratory devices.
Sec.  1910.132(b)............  Employee-owned PPE (any PPE owned by
                                employees and used on the job-site).
Sec.  1910.218(a)(1)(iv).....  Gloves, goggles, and aprons.
Sec.  1910.242(b)............  PPE appropriate for hazards associated
                                with the use of hand and portable
                                powered tools and equipment.
Sec.  1910.243(d)(1)(ii).....  Eye, face, head protection.
Sec.  1910.252(b)(1)(i)......  Safetybelt, lifeline.
Sec.  1910.252(b)(2)(i)(A)...  Welding helmet, hand shields.
Sec.  1910.252(b)(2)(i)(B)...  Filter lens.
Sec.  1910.252(c)(4)(2)(ii)..  Airline respirator.
Sec.  1910.252(c)(4)(iii)....  SCBA.
Sec.  1910.252(c)(7)(iii)....  Respirator.
Sec.  1910.261(b)(2).........  Foot protection, shin guards, hardhats,
                                noise attenuation.
Sec.  1910.261(b)(5).........  Lifeline, safety harness.
Sec.  1910.261(c)(2)(vii)....  Foot, head, eye protection.
Sec.  1910.261(c)(6)(ii).....  Foot, head, eye protection.
Sec.  1910.261(c)(7)(ii).....  Foot, head, eye protection.
Sec.  1910.261(d)(1)(i)......  Respirators, goggles, protective masks.
Sec.  1910.261(d)(1)(ii).....  Eye, face protection, clothing.
Sec.  1910.261(g)(2)(i),(ii),  Gas mask, respirators, eye protection,
 &(iii).                        safety belts, lifeline.
Sec.  1910.261(g)(4).........  Respirators, lifebelts, lifelines.
Sec.  1910.261(g)(5).........  Rubber boots, gloves, apron, eye
                                protection.
Sec.  1910.261(g)(6).........  Respirator.
Sec.  1910.261(g)(10)........  Gas mask.
Sec.  1910.261(g)(15)(ii),(ii  Respirator, lifeline, safetybelt.
 i)&(v).
Sec.  1910.261(g)(18)(i)&(ii)  Showers, bubblers.
Sec.  1910.261(h)(2)(iii)&(iv  Gas mask, SCBA.
 ).
Sec.  1910.261(i)(4).........  Eye, head, foot and shin protection.
Sec.  1910.261(k)(3).........  Face shields, aprons, rubber gloves.
Sec.  1910.265(c)(21)(i).....  Safetybelt, lifeline.
Sec.  1910.265(d)(2)(ii)(h)..  Life ring and line.
Sec.  1910.265(d)(2)(iii)(g).  Buoyant devices.
Sec.  1910.335(a)(1)(i)......  Electrical protective equipment.
Sec.  1910.335(a)(2)(i)......  Protective shields, barriers, insulation.
Sec.  1910.66(j).............  Personal fall arrest system.
Sec.  1910.67(c)(2)(v).......  Bodybelt.
Sec.  1910.120(g)(3)(iii)....  Positive pressure SCBA, airline.
Sec.  1910.120(g)(3)(iv).....  Totally-encapsulated chemical suit.
Sec.  1910.120(c)(5(ii)......  5-minute ESCBA.
Sec.  1910.120(c)(5)(iii)....  Level B PPE.
Sec.  1910.120(q)(3)(iii)....  Firefighting PPE.
Sec.  1910.120(q)(3)(iv).....  Positive pressure SCBA.
Sec.  1910.133(a)(1).........  Eye and face protection.
Sec.  1910.134...............  Respirators.
Sec.  1910.135...............  Protective helmet.
Sec.  1910.136...............  Foot protection.
Sec.  1910.137...............  Electrical protective equipment.
Sec.  1910.138...............  Hand protection.
Sec.  1910.146(k)(1)(i)......  PPE, rescue equipment.
Sec.  1910.156(e)(1)(i)......  Protective clothing.
Sec.  1910.156(e)(1)(ii).....  Firefighting PPE.
Sec.  1910.156(f)(1)(i)......  Respirators.
Sec.  1910.266(d)(1)(iii)....  Hand protection.
Sec.  1910.266(d)(1)(iv).....  Leg protection.

[[Page 15411]]

 
Sec.  1910.266(d)(1)(v)......  Logging boots.
Sec.  1910.266(d)(1)(vi).....  Head protection.
Sec.  1910.266(d)(1)(vii)....  Eye and face protection.
Sec.  1910.268(g)(1).........  Safetybelt and strap.
Sec.  1910.268(1)(i).........  Head protection and eye protection.
Sec.  1910.272(g)(1)(iii)(B).  Respirator.
Sec.  1910.272(g)(2).........  Body harness and lifeline.
Sec.  1910.94(a)(5)(i).......  Respirators.
Sec.  1910.94(a)(5(iv).......  Respirators.
Sec.  1910.94(a)(5)(v)(B)....  Eye and face protection.
Sec.  1910.95(b)(1)..........  PPE (Hearing protection).
Sec.  1910.95(i)(1)..........  Hearing protection.
Sec.  1910.95(i)(3)..........  Hearing protection.
------------------------------------------------------------------------
           Part 1910 General Industry Health 6(b) Standards\1\
------------------------------------------------------------------------
Sec.  1910.134...............  Respirators.
Sec.  1910.1002..............  Protective equipment, Respirators.
Sec.  1910.1001(g)(2)(i).....  Respirators.
Sec.  191.1001(h)(1).........  Coveralls, gloves, head coverings, foot
                                coverings, face shields, goggles.
Sec.  1910.1001(j)(7)(iii)(E)  PPE (for protection against asbestos).
Sec.  1910.1003(b)...........  Protective clothing, smocks, coveralls,
                                gloves.
Sec.  1910.1003(c)(4)(iii)...  Long-sleeved shirts, pants, boots.
Sec.  1910.1003(c)(4)(iv)....  Respirators.
Sec.  1910.1003(c)(5)(i).....  Gloves, boots, respirators.
Sec.  1910.1004..............  Respirators, protective clothing.
Sec.  1910.1006..............  Respirators, protective clothing.
Sec.  1910.1007..............  Respirators, protective clothing.
Sec.  1910.1008..............  Respirators, protective equipment.
Sec.  1910.1009..............  Respirators, protective equipment.
Sec.  1910.1010..............  Respirators, protective equipment.
Sec.  1910.1011..............  Respirators, protective equipment.
Sec.  1910.1012..............  Respirators, protective equipment.
Sec.  1910.1013..............  Respirators, protective equipment.
Sec.  1910.1014..............  Respirators, protective equipment.
Sec.  1910.1015..............  Respirators, protective equipment.
Sec.  1910.1016..............  Respirators, protective equipment.
Sec.  1910.1017..............  Respirators, protective equipment.
Sec.  1910.1018..............  Respirators, protective work clothing,
                                eye and face protection.
Sec.  1910.1025..............  Respirators, protective work clothing.
Sec.  1910.1027..............  Respirators, protective work clothing,
                                eye and face, head protection.
Sec.  1910.1028..............  Respirators, protective clothing, eye and
                                face protection.
Sec.  1910.1029..............  Flame resistant pants, jacket, gloves,
                                eye and face protection, insulated
                                footwear, protective helmets.
Sec.  1910.1030..............  Gloves, gown, lab coat , face shield,
                                masks, eye protection, mouthpieces,
                                pocket mask.
Sec.  1910.1043..............  Respirators.
Sec.  1910.1044..............  Respirators, protective clothing, eye and
                                face protection.
Sec.  1910.1045..............  Respirators, protective clothing and
                                equipment.
Sec.  1910.1047..............  Respirators, protective clothing and
                                equipment.
Sec.  1910.1048..............  Respirators, protective clothing and
                                equipment.
Sec.  1910.1050..............  Respirators, aprons, coveralls, gloves,
                                head coverings, foot coverings, face
                                shields, chemical goggles, other PPE.
Sec.  1910.1051..............  Respirators, protective clothing, eye and
                                face protection.
Sec.  1910.1052..............  Respirators, protective clothing, eye and
                                face protection.
Sec.  1910.1200(h)(3)(iii)...  PPE (for protection against hazardous
                                chemicals).
Sec.  1910.1450(e)(3)(ii)....  PPE (for protection against hazardous
                                chemicals in laboratories).
Sec.  1910.1450(f)(4)(i)(C)..  PPE (for protection against hazardous
                                chemicals in laboratories).
Sec.  1910.1450(i)...........  Respirators.
            Part 1915--Shipyard Employment 6(a) Standards \1\
------------------------------------------------------------------------
Sec.  1915.12(c)(4)(ii)......  Respirators, other PPE.
Sec.  1915.12(e)(1)(i).......  Respirators, other PPE.
Sec.  1915.13(b)(6)(iv)......  Respirators, other PPE.
Sec.  1915.32(a)(3)..........  Respirators, protective clothing.
Sec.  1915.33(a).............  Eye and face protection.
Sec.  1915.33(d).............  Face protection.
Sec.  1915.33(e).............  Face protection.
Sec.  1915.34(a)(1)..........  Goggles, face shields.
Sec.  1915.34(a)(4)..........  Respirators.
Sec.  1915.34(b)(1)..........  Respirators.
Sec.  1915.34(c)(3)(i).......  Respirators.
Sec.  1915.34(c)(3)(ii)......  Respirators.

[[Page 15412]]

 
Sec.  1915.34(c)(iii)........  Respirators.
Sec.  1915.34(c)(iv).........  Protective clothing, gloves.
Sec.  1915.34(c)(3)(v).......  Safety belt.
Sec.  1915.35(a)(1)(i).......  Respirators.
Sec.  1915.35(a)(1)(ii)......  Respirators.
Sec.  1915.35(a)(1)(iii).....  Respirators.
Sec.  1915.35(a)(2)..........  Respirators.
Sec.  1915.35(b)(9)..........  Eye, face, head, hand protection,
                                protective clothing.
Sec.  1915.35(b)(13).........  Respirators and protective clothing.
Sec.  1915.35(b)(14).........  Respirators and protective clothing.
Sec.  1915.51(c)(3)..........  Respirators.
Sec.  1915.51(d)(2)..........  Respirators.
Sec.  1915.51(d)(3)..........  Respirators.
Sec.  1915.51(e)(1)(ii)......  Eye protection, filter lenses.
Sec.  1915.51(e)(1)(iii).....  Protective clothing.
Sec.  1915.51(f)(2)..........  Eye protection.
Sec.  1915.53(d)(1)..........  Respirators.
Sec.  1915.53(d)(2)..........  Respirators.
            Part 1915--Shipyard employment 6(b) Standards \1\
------------------------------------------------------------------------
Sec.  1915.12(a)(3)(ii)......  Respirators, other PPE.
Sec.  1915.152(a)............  All PPE.
Sec.  1915.153(a)............  Eye and face protection.
Sec.  1915.154...............  Respirators.
Sec.  1915.155...............  Head protection.
Sec.  1915.156...............  Foot protection.
Sec.  1915.157...............  Hand and body protection.
Sec.  1915.158...............  Personal flotation devices, life rings.
Sec.  1915.159...............  Personal fall arrest systems.
Sec.  1915.160...............  Positioning device systems.
------------------------------------------------------------------------
   Part 1917--Safety and Health Regulations for Marine Terminals 6(b)
                              Standards \2\
------------------------------------------------------------------------
Sec.  1917.22(c).............  Protective clothing.
Sec.  1917.23(d)(1)..........  Respirators, emergency protective
                                equipment.
Sec.  1917.25(e)(1)..........  Respirators, emergency protective
                                equipment.
Sec.  1917.26(f).............  Personal flotation devices, safety belts.
Sec.  1917.49(i)(3)..........  Lifeline and safety harness.
Sec.  1917.73(a)(3)..........  Respirators.
Sec.  1917.73(c).............  Respirators, lifeline, safety harness.
Sec.  1917.91(a)(1)..........  Eye and face protection.
Sec.  1917.92................  Respirators.
Sec.  1917.93(a).............  Head protection.
Sec.  1917.94(a).............  Foot protection.
Sec.  1917.95(a).............  Protective clothing.
Sec.  1917.95(b).............  Personal flotation devices.
Sec.  1917.118(e)(1).........  Ladder safety device.
Sec.  1917.126(b)............  Personal flotation devices.
Sec.  1917.152(e)(8)(ii).....  Eye protection, filter lenses.
Sec.  1917.152(e)(11)........  Rubber pads, rubber boots.
Sec.  1917.152(f)............  Respirators.
Sec.  1917.152(f)(4).........  Eye, head, hand protection.
Sec.  1917.152(g)(3).........  Respirators.
Sec.  1917.152(h)............  Respirators, eye, face, head protection,
                                filter lenses.
Sec.  1917. 154..............  PPE (For protection against hazards
                                resulting from the use of compressed
                                air).
------------------------------------------------------------------------
                Part 1918--Longshoring 6(b) Standards \1\
------------------------------------------------------------------------
Sec.  1918.101...............  Eye protection.
Sec.  1918.102...............  Respirators.
Sec.  1918.103...............  Protective clothing.
Sec.  1918.104...............  Foot protection.
Sec.  1918.105...............  Head protection.
Sec.  1918.106...............  Personal flotation devices
------------------------------------------------------------------------
                Part 1926 Construction 6(a) Standards \1\
------------------------------------------------------------------------
Sec.  1926.300(c)............  PPE (for hazards from the use of hand and
                                power tools).
Sec.  1926.304(e)............  PPE (for hazards from the use of
                                woodworking tools).
Sec.  1926.551(e)............  Eye protection, hardhats.
------------------------------------------------------------------------

[[Page 15413]]

 
               Part 1926--Construction 6(b) Standards \1\
------------------------------------------------------------------------
Sec.  1926.52(b).............  Hearing protection.
Sec.  1926.95(a).............  General requirements for all PPE used in
                                construction.
Sec.  1926.95(b).............  Employee owned PPE.
Sec.  1926.95(c).............  Design of PPE.
Sec.  1926.701(f)............  Face and head protection.
Sec.  1926.800(d)(7).........  PPE used in underground construction.
Sec.  1926 Subpart L.........  Personal fall arrest systems.
Sec.  1926 Subpart M.........  Personal fall arrest systems.
------------------------------------------------------------------------
\1\ A 6(a) standard is any standard that OSHA adopted from an existing
  Federal standard or a national consensus standard under Sec. 6(a) of
  the Act, i.e., without notice-and-comment rulemaking. A 6(b) standard
  is a standard that OSHA promulgated using the rulemaking process with
  public participation.

    For all industry sectors, employers are in the best position to 
choose the proper type and quality of PPE, and to maintain the PPE 
selected. The same statutory considerations apply to all industry 
sectors, as discussed above in this preamble.
    However, additional considerations apply to workplaces in 
construction, longshoring, and marine terminals: first, there is 
considerable turnover in these industries, and second, many of the 
affected businesses employ only a small number of employees. Based on 
OSHA's experience, safety-toe footwear is the type of PPE most often 
used in these industries and the type of PPE that employees are most 
often required to pay for at present. This equipment would be excluded 
from the ``employer pays'' requirement, provided that the three 
proposed conditions are met. Therefore, OSHA does not believe that its 
proposal will cause economic difficulties for employers in these 
sectors. See also section VI., Preliminary Economic Analysis.

D. Current OSHA Rrequirements Concerning Payment for PPE

    Earlier OSHA standards promulgated under section 6(a) of the OSH 
Act (i.e., those standards adopted without notice-and-comment 
rulemaking and public participation) that required the use of PPE did 
not explicitly address the issue of who is required to pay for PPE. In 
1978, however, several substance-specific health standards promulgated 
under section 6(b) of the OSH Act (i.e., promulgated using the full 
rulemaking process with public participation and comment) required 
employers to pay for PPE. Since that time, all OSHA health standards 
have explicitly required employers to pay for required PPE.
    However, the safety standards promulgated under section 6(b) of the 
OSH Act have not been consistent with respect to the employer's 
responsibility to pay for PPE. Several of these standards require the 
employer to ``provide'' PPE, but do not explicitly state that the 
employer must pay for it. Other standards specifically require the 
employer to pay for all PPE. One standard, Logging Operations 
(Sec. 1910.266), requires the employer to pay for all PPE, with the 
exception of logging boots. The following are examples of OSHA's 
current PPE requirements.
    Telecommunication standard. Paragraph (e) of Sec. 1910.268 requires 
the employer to provide personal protective equipment, protective 
devices and special tools. However, this provision does not 
specifically state that the employer must pay for the PPE, even though 
it is common practice in the telecommunications industry for the 
employer to pay for all PPE except for safety-toe protective shoes (see 
the Regulatory Impact Analysis for that standard).
    Electric Power Generation. Paragraph (g)(1) of Sec. 1910.269 
requires PPE to meet the requirements of subpart I of part 1910, but 
does not specify that the employer must pay for the PPE.
    Maritime standards. Paragraph (a) of Sec. 1915.152 (Shipyard 
standards) requires the employer to provide and ensure the use of PPE, 
but does not clearly state that the employer is required to pay for it.
    Identical PPE standards apply to marine terminals (part 1917) and 
longshoring (part 1918). They state, in part: ``The employer shall 
ensure that each affected employee wears* * *[PPE].'' Again, the 
regulatory text does not state that the employer is required to pay for 
the PPE. However, the preamble to the marine terminals and longshoring 
standards does give guidance with respect to the payment for PPE issue 
(62 FR 40186-87):

Although the equipment used in marine cargo handling operations 
often differs from that mentioned in the October 18 memorandum [OSHA 
Policy Memorandum, October 18, 1994] the same policy considerations 
apply in the Longshore and Marine Terminals standard PPE context. 
Therefore, OSHA will apply the above-stated policy when determining 
whether the employer is required to pay for a particular kind of 
PPE.

Therefore, OSHA's enforcement policy for marine terminals and 
longshoring requires employers to pay for all PPE except for safety-toe 
protective shoes and prescription safety glasses.
    Subpart I of part 1910. On April 6, 1994, OSHA revised its general 
industry standards for PPE (59 FR 16362) and added new provisions for 
hazard assessment and training. The Agency had not proposed a 
requirement concerning the employer's responsibility to pay for PPE, 
and the subject was not an issue during the rulemaking.
    Permit-required confined spaces (Sec. 1910.146). This standard 
specifically requires the employer to pay for PPE. It requires the 
employer to provide the equipment (including PPE) necessary for safe 
entry into, and rescue from, permit spaces at no cost to employees, to 
maintain the equipment properly, and to ensure its proper use by 
employees.
    Logging operations. During the logging rulemaking, OSHA proposed 
that the employer provide PPE and assure its use. OSHA's intent was 
that the employer provide all PPE at no cost to employees. However, 
some commenters asserted that employers should not have to pay for all 
types of PPE used in logging operations.
    After careful analysis of the rulemaking record, the Agency 
concluded that the employer should be required to pay for all PPE 
except for logging boots. OSHA noted that logging boots are customarily 
worn outside the workplace; are individually-fitted and therefore not 
usable by another

[[Page 15414]]

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

E. Advisory Committee on Construction Safety and Health

    The Advisory Committee on Construction Safety and Health (ACCSH) 
assists OSHA by providing comments and recommendations on proposed 
construction standards. Accordingly, the Agency provided ACCSH with the 
following draft revision of Sec. 1926.95:

    (d) Payment for Protective Equipment. All protective equipment, 
including personal protective equipment, required in this part, 
shall be provided by the employer at no cost to employees except for 
safety-toe protective footwear and prescription safety eyewear.

ACCSH considered the proposed language at its meeting on April 8, 1998.
    ACCSH members expressed several concerns about the proposed 
language. Some members expressed the view that many employers were 
already paying for safety-toe shoes through collective bargaining 
agreements and that the new text might discourage them from continuing 
to do so (Tr. 53, 61).
    Members also noted that prescription glasses are sometimes 
incorporated into respirator facepieces and would therefore be 
impractical for workers to use at home. They therefore asked why 
employers should not pay for that prescription eyewear (Tr. 47).
    Other members of the committee mentioned the problem of employees 
who did not always bring their safety equipment to work. They noted 
that it would be expensive for an employer to have to replace that 
equipment frequently (Tr. 51-52).
    Two resolutions were introduced. The first stated:

All protective equipment, including personal protective equipment, 
required in this part, shall be provided by the employer at no cost 
to the employees.

That resolution failed by a 6 to 7 vote.
    The second resolution introduced read as follows:

The language currently in 1926.95 regarding personal protective 
equipment, is effective and is sufficient to protect the worker and 
provide the personal protective equipment. (We) recommend leav(ing) 
the language as is currently stated in 1926.95 (Tr. 62).

That resolution passed by a 6 to 2 vote.
    Based on the recommendations and discussion of ACCSH, the Agency 
revised the draft regulatory text to reflect many of the Committee's 
concerns. OSHA is proposing the revised proposed regulatory text for 
general industry and maritime as well as the construction industry.
    The Agency believes that the Union Tank decision has undercut 
OSHA's ability to enforce the standard as outlined in the 1994 memo. As 
discussed below, the proposed rule incorporates much of the 1994 memo 
into the text of the Agency's various protective equipment standards. 
OSHA believes that this action will carry out the recommendations of 
ACCSH effectively.
    The proposed regulatory text now makes clear that the employer is 
not required to pay for safety-toe protective footwear and prescription 
safety eyewear unless: (1) The employer does not permit it to be worn 
off-site; (2) the footwear or eyewear is rendered unsafe for use off-
site; or (3) the footwear or eyewear is designed for special use on the 
job. For example, contaminated safety-toe footwear would not be 
permitted to be worn off the job-site because it would be unsafe to do 
so, and prescription eyewear mounted inside a full-facepiece respirator 
would not be permitted for use off the job-site because it is designed 
for special use on-site. Consequently, the employer would be required 
to pay for the PPE in these two examples.
    OSHA intends to require employers to pay for the initial issue of 
PPE and for replacement PPE that must be replaced due to normal wear 
and tear or occasional loss. Only in the rare case involving an 
employee who regularly fails to bring employer-supplied PPE to the job-
site, or who regularly loses the equipment, would the employer be 
permitted to require the employee to pay for replacement PPE.

F. Explanation of Proposed Requirement

    OSHA is proposing to add the following language to its general 
industry standards as Sec. 1910.132(h):

All protective equipment, including personal protective equipment 
(PPE), required in this part, shall be provided by the employer at 
no cost to employees.
    Exception: The employer is not required to pay for the logging 
boots required by 29 CFR Sec. 1910.266(d)(1)(v). The employer is 
also not required to pay for safety-toe protective footwear, or for 
prescription safety eyewear, provided that all three of the 
following conditions are met: (1) the employer permits such footwear 
or eyewear to be worn off the job-site; (2) the footwear or eyewear 
is not used at work in a manner that renders it unsafe for use off 
the job-site (for example, contaminated safety-toe footwear would 
not be permitted to be worn off a job-site); and (3) such footwear 
or eyewear is not designed for special use on the job.

OSHA is proposing to add the same language (except for the first 
sentence of the exception, which applies only to the general industry 
workplaces covered by the logging standard) as shipyard 
Sec. 1915.152(f) as marine terminal Sec. 1917.96, as longshoring 
Sec. 1918.106, and as construction Sec. 1926.95(d).
    The purpose of this language is to make clear that employers must 
provide and pay for all necessary PPE wherever such PPE is required by 
an OSHA standard, with the exceptions mentioned. The reasons for this 
proposal have been discussed above and are also found in the Legal 
Considerations section of this preamble, above.
    The proposal is intended to cover every situation where an OSHA 
standard requires the use of PPE. OSHA preliminarily concludes that all 
the reasons why employers should provide and pay for PPE apply 
generally to all types of PPE. In other words, the reasons why an 
employer is in the best position to purchase the correct type and 
quality of wire mesh gloves to prevent finger lacerations also apply to 
the selection and purchase of the correct type and quality of fall 
protection harnesses and lanyards, respirators, and metatarsal foot 
protection. As noted, the proposal does contain exceptions and 
conditions to these exceptions. OSHA requests comment on whether other 
types of PPE should be excepted from the employer-payment principle and 
if so, why.
    The proposed payment requirement in Sec. 1910.132(h) applies to 
``all protective equipment required in this part.'' For example, part 
1910 contains many different requirements for the use of PPE throughout 
general industry (see Table 2, above). Although the proposed regulatory 
language would be inserted only in Sec. 1910.132 (which is in subpart I 
of part 1910), OSHA intends that employers pay for all PPE required 
throughout part 1910.
    OSHA does not believe it necessary to specify in the proposed 
regulatory text that the employer ensure that employees use the 
required PPE and maintain it appropriately, because these concepts are 
already clearly stated in most of OSHA's PPE requirements. OSHA 
requests comments on the adequacy of this approach, and whether 
employee use and maintenance of PPE should be specifically required.
    As discussed previously, some PPE requirements already include 
specific language requiring the employer to provide and pay for PPE 
(e.g., the language used in most health standards), while others use 
more ambiguous language. OSHA intends the proposed new language to 
cover all of the Agency's PPE requirements. OSHA believes that this 
approach will make the obligations of employers clear with regard to 
the provision and payment for PPE. The proposed language does not

[[Page 15415]]

affect or limit the ``provide-and-pay'' language in those regulatory 
provisions that already clearly state this requirement, such as 29 CFR 
1910.266(d)(1)(v), 29 CFR 1910.1029(h)(1), 29 CFR 1910.146(d), and 29 
CFR 1910.134(c).
    The proposed provide-and-pay language also allows a reasonable 
degree of compliance flexibility. For example, the proposed language 
would permit an employer to send an employee to purchase appropriate 
PPE at a supply store if the employer paid for the employee's time and 
paid for the PPE.
    The proposed requirement would also make the employer responsible 
to provide, and pay for, replacement PPE when the original PPE wears 
out from normal wear and tear or in the event of occasional loss or 
accidental damage by the employee. However, if an employee regularly 
and with unreasonable frequency loses or damages the PPE, the employer 
may request that the employee pay for the replacement PPE. This issue 
was discussed at the ACCSH meeting, as noted earlier. It is also 
important to note that current OSHA PPE standards (e.g., 
Sec. 1910.132(f)(1)(v)) already require the employer to train employees 
in the proper care, maintenance, and useful life of PPE.

Exceptions

    For the reasons discussed above, OSHA has preliminarily concluded 
that the Agency needs to codify the general principle that employers 
must both provide and pay for PPE. However, the Agency is also 
proposing exceptions to that rule. OSHA is not proposing to require 
employers to provide, or pay for, safety-toe protective footwear or 
prescription safety eyewear providing that the following three 
conditions are met: (1) the employer permits the footwear or eyewear to 
be worn off-site; (2) the footwear or eyewear is used on the job in a 
manner that does not make it unsafe for off-site use; and (3) the 
footwear or eyewear is not designed for special use on the job. In 
addition, as the current rule provides, general industry employers are 
not required to pay for the logging boots required by 29 CFR 
1910.266(d)(1)(v).
    Safety-toe protective footwear (safety shoes). This discussion of 
safety shoes pertains only to safety-toe protective footwear. It does 
not pertain to other types of foot protection, such as metatarsal or 
cut-resistant protective boots. (Logging boots are discussed below.)
    OSHA considers safety shoes to be personal in nature. That is, 
safety shoes are not used by different employees. Instead, they are 
used by, and sized to fit, only one individual employee. Also, one 
employee's safety shoes are not generally used by other employees 
because of size and hygienic concerns. In addition, employees often 
wear safety shoes away from the job-site.
    Safety shoes are widely available and are not difficult for the 
employee to select and purchase. Evidence presented in the Preliminary 
Economic Analysis also shows that it is customary in some workplaces 
for employees to pay for their safety-toe footwear. In addition, the 
OSHA policy memorandum of 1994 generally excepted safety-toe safety 
shoes from the employer payment requirement. For these reasons, OSHA is 
not proposing to include safety-toe safety shoes in the employer 
payment requirement if all three of the conditions are met.
    Thus, the proposed exception would not apply to metatarsal 
protection (metatarsal guards or protective footwear that incorporates 
metatarsal protection) or special cut-resistant footwear because these 
kinds of footwear are not generally used off the worksite, and 
employers often re-issue metatarsal guards and cut-resistant footwear 
to subsequent employees. Also, the proposed exception would not apply 
to any safety-toe safety shoe that cannot safely be worn off the 
worksite. For example, the exception does not include safety shoes that 
have been worn in a regulated area where they may have been 
contaminated with a toxic substance. Employers must continue to provide 
and pay for these safety shoes because they are not safe for use off-
site. However, the exception does not prohibit employers from paying 
for safety-toe safety footwear of any type, if they choose to do so.
    Prescription safety eyewear. OSHA also considers prescription 
safety eyewear to be personal in nature. Prescription safety eyewear 
is, of course, designed for the use of a single individual. Other types 
of protective eyewear, such as goggles, generally remain at the job-
site and can be cleaned and reissued for use by other employees.
    Prescription safety eyewear is usually used both on and off the 
job-site. Additionally, regular prescription glasses can be worn 
underneath goggles and other protective eyewear that has been designed 
to accommodate them. Therefore, in this situation OSHA believes that 
employers should be required to pay only for the protective goggles. 
Employees can then decide either to purchase their own prescription 
safety glasses or to wear their own prescription glasses underneath the 
protective eyewear provided by the employer. Additionally, the employer 
may agree to pay all or part of the cost of prescription safety 
eyewear. However, the employer must pay for any prescription eyewear 
that is mounted inside the full-facepiece of a respirator, because such 
eyewear would fall under the ``special use'' condition of the proposed 
rule (this is also clearly required by the respirator standard). OSHA's 
position on this issue is discussed below in the Issues Section of this 
preamble.
    The Agency realizes that there may be different opinions with 
respect to this proposal. Some may argue that requiring employers to 
pay for all PPE (including safety shoes and prescription safety 
eyewear) may lead to more employees wearing PPE and, consequently, may 
enhance employee safety. The Issues Section, below, requests comment on 
this issue.
    OSHA emphasizes that payment for safety-toe footwear and 
prescription safety eyewear can be negotiated between management and 
labor. Also, this proposed rulemaking is not intended to affect any 
collective bargaining agreements, or any other responsibility to pay 
for safety-toe footwear and prescription safety eyewear in particular 
workplaces.
    The Agency also emphasizes that this proposed rulemaking does not 
change the employer's obligation under the Act to ensure that all PPE, 
including employee-owned PPE, is worn when necessary, is adequate to 
protect employees from the hazard, and is properly maintained. If the 
employee chooses to furnish his or her personally-owned PPE, this rule 
does not require the employer to reimburse the employee for the cost of 
that equipment.
    This proposed revision specifically restates the exception to the 
``employer pays'' principle contained in the OSHA standard for logging 
operations (Sec. 1910.266(d)(1)(v)), which specifies that the employer 
is not required to pay for a certain type of foot protection (foot 
protection constructed of cut-resistant material to protect employees 
who operate chainsaws, etc.). OSHA considered that issue at length in 
the logging rulemaking and concluded that the evidence supported 
excluding that type of footwear from the general obligation that 
logging employers pay for logging PPE. See the discussion at 59 FR 
51683-4 (Oct. 12, 1994).

V. Issues Pertaining to the Proposed Rule

    OSHA requests comments, views, and data on all issues relevant to 
the proposed rule, including the following:

[[Page 15416]]

    1. OSHA also considered proposing the following alternative 
regulatory text:

The employer shall provide, at no cost to the employee, all 
protective equipment and personal protective equipment except for 
protective equipment which the employer demonstrates is personal in 
nature and customarily used off the job.

    This provision is stated in general language and would have the 
advantage of providing some flexibility for specific workplace 
situations involving PPE. However, a major disadvantage of this 
approach is that it uses the terms ``personal in nature'' and 
``customarily used off the job,'' which OSHA would need to define and 
interpret. OSHA's proposed exception, which is more specific than the 
text of the alternative discussed above, provides greater certainty to 
employers and workers.
    OSHA requests comments on the merits of both approaches, including 
views on how OSHA should interpret the regulatory text.
    2. Are there other types of PPE, beside safety-toe safety footwear 
and prescription eyewear, that should be excepted from the proposed 
payment requirement? Why or why not? Please submit any available 
supporting documentation. Alternatively, should OSHA require employers 
to pay for all PPE, including safety-toe footwear and prescription 
safety eyewear? Why or why not?
    3. OSHA realizes that there is frequent turnover in the 
construction industry, where employees frequently move from job-site to 
job-site. This is an important factor because an employer with a high-
turnover workplace would have to buy PPE for more employees if the PPE 
was of the type that could only be used by one employee. OSHA requests 
comment on whether its proposed exceptions for safety-toe footwear and 
prescription safety eyewear are appropriate in the construction 
industry. Are there any other approaches to handle the turnover 
situation that would be protective of construction workers? Are there 
any other issues unique to the construction industry that should be 
considered in this rulemaking?
    4. The longshoring and marine terminal industries have a unique 
employer-employee relationship in many ports. At some ports, employees 
are hired for a job through a labor pool, and the same employee may 
work for 5 different employers in the same week. How do these factors 
affect the issue of who is required to pay for PPE? Does the employer 
customarily pay for PPE in the maritime industry? Are there any other 
issues unique to the maritime industry that OSHA should consider in 
this rulemaking?
    5. OSHA requests comments, information, and data on whether 
employee-owned PPE is less protective than employer-provided PPE, and 
under what circumstances.
    6. The proposal covers protective equipment and personal protective 
equipment used in welding, including protective gloves. Does welding 
PPE create any unique problems on the PPE payment issue? Does the 
employee usually pay for welding PPE?
    7. If an employee wants to use more costly PPE because of 
individual preference, should that employee be responsible for any 
difference in cost? Is there evidence that such ``individualized'' PPE 
has caused safety problems in the past?
    8. Full-facepiece respirators present a unique problem for 
employees who need prescription glasses. The temples of the 
prescription glasses break the face-to-face piece seal and greatly 
reduce the protection afforded by the respirator. Special glasses and 
mounts inside the facepiece of the respirator are sometimes used to 
provide an adequate seal. Because of this special situation, OSHA 
believes that it is appropriate for the employer to provide and pay for 
the special-use prescription glasses used inside the respirator 
facepiece. Is it common industry practice for employers to pay for 
these special glasses? What is the typical cost for providing ``insert-
type'' prescription glasses inside full-facepiece respirators?
    9. OSHA's Preliminary Economic Analysis has found that this 
proposal will not impose significant impacts on firms in any industry 
segment or on affected small businesses. OSHA requests comments on the 
analysis and on any industry or subindustry that may have particular 
economic problems as a result of the proposed rule.
    10. Should the standard require the employer to pay for inserts or 
other articles that are uniquely personalized components of personal 
protective equipment, such as head coverings used under welding helmets 
and custom prescription lens inserts worn under a welding helmet or a 
diving helmet?
    11. OSHA intends to require employers to pay for the initial issue 
of PPE. Should employers also be required to pay for PPE that must be 
replaced due to normal wear and tear or occasional loss?
    12. OSHA requests comments on the conclusions about the costs and 
benefits contained in the Preliminary Economic Analysis section.

VI. Preliminary Economic Analysis

    It has been determined that this is a significant regulatory action 
under E.O. 12866, and a major rule under the Congressional Review 
provisions of the Small Business Regulatory Enforcement Fairness Act.

Introduction

    OSHA has prepared this Preliminary Economic Analysis to examine the 
feasibility of the proposed rule on Employer Payment for Personal 
Protective Equipment and to meet the requirements of Executive Order 
12866 and the Regulatory Flexibility Act (as amended). The proposed 
rule would require employers to pay for protective equipment, including 
personal protective equipment (PPE), when OSHA standards mandate that 
employers provide such equipment to their employees. The only PPE 
employers would not be required to pay for in certain circumstances are 
safety-toe footwear and prescription safety eyewear. OSHA is proposing 
to except PPE of these types providing that these types of PPE meet 
three conditions: (1) The employer permits them to be worn off-site; 
(2) they are not used on-site in a manner that renders them unsafe for 
use off-site; and (3) they are not designed for special on-site use. 
Logging boots are also specifically excepted from employer payment by 
29 CFR 1910.266(d)(1)(v).
    OSHA's requirements for PPE (again, OSHA is using the abbreviation 
``PPE'' to cover all protective equipment, (including personal 
protective equipment) appear in many health, safety, maritime, and 
construction standards. In some cases, the standard is explicit in 
stating that employers are to provide the PPE at no cost to the 
employee (see, for example, OSHA's substance-specific health standards, 
which are codified in Subpart Z of 29 CFR 1910.1000). In other cases, 
however, such as in paragraph (a) of 29 CFR 1910.132 and paragraph (a) 
of 29 CFR 1926.28, who is required to pay for the PPE is not expressly 
specified. (For a complete list of OSHA's PPE requirements, see the 
Summary and Explanation for the proposed standard, above.)
    The proposed rule would apply to general industry, construction, 
and maritime workplaces covered by the PPE provisions in existing OSHA 
standards.
    The rule would clarify OSHA's intent that, with the exceptions 
noted, employers provide required PPE to their employees at no cost to 
those employees. The kinds of PPE addressed by OSHA's PPE standards 
include, for example, hard hats, safety shoes, gloves, safety glasses, 
goggles, faceshields, welding helmets and goggles, fall

[[Page 15417]]

protection equipment, and chemical suits. (A more detailed list of the 
kinds of PPE covered appears in the Summary and Explanation, above.)

Industry Profile

    The proposed rule is concerned only with who pays for OSHA-required 
PPE; that is, it would not require employers to provide PPE where none 
has been required before. Instead, the proposed rule merely stipulates 
that required PPE be paid for by the employer, except in the case of 
safety-toe footwear and prescription safety eyewear that meets the 
three proposed conditions. In other words, the required PPE is 
currently being paid for either by the employer or the employee. The 
proposed rule would shift the costs of that portion of the PPE 
currently being paid for by the employee (except for safety-toe 
footwear and prescription safety eyewear meeting the proposed 
conditions) to their employers, as has been OSHA's intent. (See the 
Legal Considerations section of the preamble, above, for details of 
OSHA's legal interpretation of this issue.) To the extent that this 
rule has the effect of improving the quality of PPE being used or of 
ensuring that PPE is being used where it has not previously been used, 
such improved compliance would result both in additional benefits and 
costs to the economy. Nevertheless, to determine the extent of PPE 
usage and the potential magnitude of any shift in costs, OSHA has 
developed a profile of industry PPE use and payment patterns.

Data on PPE Usage Patterns

    The data relied on to develop this industry profile derive from a 
number of sources, although the Agency relied on survey data for its 
estimates of use patterns for most types of PPE. The main source of 
information on PPE use patterns for general industry was a telephone 
survey of more than 5,000 employers conducted by OSHA in 1989 (ERG 
1998), in support of the Agency's 1994 PPE rulemaking.4 The 
survey yielded industry- and size-class-specific PPE use information 
for nearly all industries affected by that rulemaking and the current 
one. The survey provided information on PPE use in shipyards, within 
the context of SIC 37, Transportation Manufacturing. It did not, 
however, survey the construction industry.
---------------------------------------------------------------------------

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

    Data on usage patterns in the construction industry derive 
primarily from a study done for the Office of Technology Assessment 
(OTA 1984) in 1982 by Springborne Associates. In this survey of 
employers, OTA provided estimates of the number of construction workers 
using various types of PPE. As with the 1989 PPE survey, the Agency 
assumes that the patterns of PPE usage (percentage of employees using 
PPE) within sectors of the construction industry have remained 
constant. The Agency believes that this is a reasonable assumption, in 
part because OSHA's construction rules governing PPE usage have 
remained the same since 1972. Further, the OTA survey reported that 
several types of PPE (e.g., hard hats, gloves, eye protection) are used 
by virtually all construction workers; thus it would be impossible for 
usage of these types of PPE to have increased significantly over time. 
The general assumption that PPE usage patterns have not changed 
significantly over time is supported by a recent OSHA analysis of 
respirator use patterns conducted for the Agency's final rule for 
respiratory protection (63 FR 1172, January 8, 1998). This analysis 
shows that respirator usage patterns have not changed substantially 
from those shown in the OTA report. A comparison of the OTA data for 
several other types of PPE (e.g., gloves, eye protection, faceshields, 
safety shoes and hard hats) with usage data from the 1989 PPE survey 
also indicated no clear shift in usage for these types of PPE. Thus, 
OSHA believes that these estimates of PPE usage in construction are 
reasonable. However, as will be discussed further below, OSHA is 
conducting a survey to gather more up-to-date information on PPE use 
and payment. This survey will be used to update the estimates of usage 
of PPE in construction.
    To confirm the overall accuracy of the survey data on PPE use in 
construction, the Agency contacted several PPE distributors to obtain 
information on the market share for various PPE items in the 
construction industry, as compared to market share in other sectors. 
Comparing OSHA's estimates of the percentage of PPE costs attributable 
to construction with the distributors' estimates of the share of PPE 
sales occurring in the construction industry shows that OSHA's 
estimates of PPE use in construction are correct and may, if anything, 
be high. If OSHA's estimates are high, this analysis would tend to 
overstate the potential costs and impacts of the proposed rule on the 
construction industry. For example, OSHA's analysis estimates that 
approximately 25 percent of the costs of all PPE occur in the 
construction sector, while the distributors indicated that the 
construction sector accounted for 20 percent of the value of PPE sales.
    Estimating use patterns for some specific types of PPE required 
additional analysis. For example, the OTA survey did not collect data 
on fall protection PPE. The number of employees using fall protection 
in construction was estimated from an analysis of occupational 
categories, based on data from BLS's 1994 Occupational Exposure Survey 
(OES) 5. Additionally, the OES data allowed OSHA to estimate 
the number of workers requiring welding equipment in construction and 
in some industries not covered by the 1989 PPE survey (i.e., SICs 15, 
16, 17, 46, 47, 59, 73, 87 and 89). Finally, because the OTA survey did 
not have data on the extent of the use of shoes with metatarsal guards, 
OSHA relied on the 1989 PPE survey data, which show that about 11 
percent of all safety shoes have metatarsal guards; this percentage was 
applied to the OTA estimates of safety shoe usage to estimate 
metatarsal guard usage in the construction industry.
---------------------------------------------------------------------------

    \5\ For workers in some occupations, such as structural metal 
workers and roofers, all employees were assumed to use fall 
protection, clearly an overestimate. For workers in other 
occupations, 10-20 percent were assumed to use fall protection.
---------------------------------------------------------------------------

    Table VI-1 shows OSHA's estimates of the extent of PPE use in the 
industries covered by the proposed rule. A total of 19.6 million 
workers are estimated to wear one or more kinds of PPE in these 
industries. Non-prescription safety glasses are worn by approximately 
6.7 million workers, while 7.7 million workers wear hard hats and 10.6 
million wear protective gloves of various kinds. Industries with the 
largest number of PPE-wearing employees include construction special 
trades (SIC 17), with 2.9 million such employees, building construction 
trades (SIC 15), with 1.2 million, wholesale trade--durable goods (SIC 
50), with 1.6 million, and wholesale trade--non-durable goods (SIC 51), 
with 1.2 million PPE-wearing employees.

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[[Page 15419]]

Data on PPE Payment Patterns

    To derive estimates of current employer payment patterns with 
regard to PPE, the Agency consulted several sources: a national study 
of collective bargaining agreements (BNA 1995), information from OSHA's 
State-plan States, information from OSHA's 1989 PPE survey (ERG 1998), 
and a panel of experts on PPE payment patterns (ERG 1998).
    The data available to OSHA suggest that most employers in OSHA's 
jurisdiction are already paying for the PPE they provide to their 
employees to comply with OSHA standards. They do so because of labor-
management agreements and collective bargaining contracts, and for 
other obvious reasons: if they pay for the PPE, they know what kinds of 
PPE their employees are using, can ensure that it is replaced when 
needed, and can require standardized procedures for cleaning, storing, 
and maintaining it. In other words, they can control what PPE is used 
and how it is used, and thus can have greater assurance that they are 
in fact in compliance with OSHA's standards. Other reasons why 
employers prefer to pay for PPE, according to the expert panel convened 
by OSHA to obtain information on PPE patterns of use and payment, are:
     The employer has experience with injuries that could have 
been prevented by PPE use;
     The employer has received input from his/her insurance 
carrier;
     The employer's staff and employees are aware of job-
related hazards and know about PPE use; and
     The employer is concerned about the likelihood of an OSHA 
inspection (ERG 1998).
    A recent study of collective bargaining agreements showed that 55% 
of contracts mentioning safety equipment require employers to pay for 
PPE, while only 11% of such agreements require the employee to pay for 
any PPE; this latter figure includes payment for all kinds of safety 
shoes. In addition, nearly half of all U.S. workers work in States 
covered by OSHA State plans. These States generally require employers 
to pay for mandatory PPE, with the exception, in some cases, of safety-
toe footwear and prescription safety glasses. For example, Kentucky, 
which operates its own OSHA program under an approved State-plan, 
requires employers to pay for all required PPE except that which is 
personal in nature and is also used off the job. California has 
required employers to pay for all PPE, without exception, for many 
years. OSHA is currently reviewing the PPE payment policies of all of 
its State-plan partners; to date, all of the State plans responding 
have a policy of requiring employers to pay for most PPE items.
    To develop detailed estimates of sectoral patterns of PPE payment, 
OSHA recently sponsored an expert panel of individual representatives 
from industry, labor, insurance companies, and safety equipment 
manufacturers and distributors. These individuals are recognized for 
their knowledge of PPE use and purchasing patterns in the general 
industry, construction, and maritime sectors. Many panelists indicated 
that the kinds of PPE that could potentially be affected by the 
proposed rule, i.e., those where a shift in costs from employees to 
employers could potentially occur, were hard hats, gloves, safety 
glasses (non-prescription), goggles, safety shoes (other than safety-
toe safety shoes), welding hoods and goggles, faceshields, fall 
protection equipment, and chemical protective clothing. Based on the 
responses of individual members of the panel, this industry profile 
includes all the major types of PPE identified as having such 
potential. However, the Agency solicits comments on any types of PPE 
not included in this analysis, the extent of the use of such PPE in 
each affected industry, and the extent to which employers do not 
currently pay for such PPE, in each affected industry.
    Table VI-2 summarizes the findings of the expert panel, which are 
presented as the percentage of all PPE costs currently estimated to be 
borne by employers, by industry and type of PPE. The table reports the 
median response, i.e., the median percentage reported by the experts in 
each case, except for manufacturing, where the panel estimated that 
100% of costs for the affected kinds of PPE are being borne by 
employers (OSHA has reduced this to 95% to be conservative) and the 
service industries (where OSHA assumed that the percentages attributed 
by the experts to the wholesale trade industry would be applicable to 
all service industries). The panel's estimates of the percentage of PPE 
costs currently being borne by employers were generally highest for 
manufacturing and transportation and lowest for construction and 
shipyards, although estimates even within these industries varied 
widely by type of PPE. For example, the panel estimated that 87% of 
employers in the transportation industry currently pay for non-
prescription safety eyewear, while 91.5% percent of these employers 
currently pay for chemical protective clothing. In construction, where 
the pattern of employer payment for PPE is generally lower than for 
other industries, 70% of employers are estimated currently to pay for 
non-prescription safety eyewear, while only 50% pay for gloves to 
protect against abrasion and laceration.
    OSHA believes that Table VI-2 generally presents an accurate 
picture of current PPE payment patterns in various industries at the 
present time, comporting with the Agency's own experience. Thus the 
proposed rule, rather than representing a departure from current 
practice, will largely reflect it.

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[[Page 15421]]

    In order to further ensure that the Agency has accurate data on 
current patterns of PPE payment and usage, OSHA is conducting a 
nationwide telephone survey of American workplaces dealing specifically 
with that question. The Agency intends to have the results available 
for review and comment before the final rule is published. The 
information from the survey will be used to modify and update this 
economic analysis as needed with respect to both PPE use patterns 
(Table VI-1) and PPE payment patterns (Table VI-2). When the PPE survey 
is completed, OSHA will reopen the record to enable the public to 
comment on the results.

Technological Feasibility

    This rule does not change any PPE requirements, but affects only 
the issue of who pays for PPE. All of the PPE affected by this 
rulemaking has already been found to be technologically feasible in 
other rulemakings. Personal protective equipment is widely 
manufactured, distributed, and used in workplaces in all of the 
industries covered by OSHA standards. The proposed rule thus raises no 
issues of technological feasibility.

Benefits of the Proposed Rule

    Both OSHA's own enforcement experience and the experience of 
members of OSHA's expert panel show that when employers do not provide 
and pay for PPE, it is often not worn, is worn improperly, or is not 
cared for and replaced appropriately. In the words of one panel member:

    Our experience has been that the biggest factor in determining 
proper, effective use of eye protection is effective supervision--if 
the supervisor leads by example; if he/she reinforces use of eye 
protection by the workers under his/her supervision; if he/she has 
replacement eye protection readily available when it gets scratched 
or otherwise damaged or lost--then there is more likely to be a 
pattern of effective use among the workforce. This is significantly 
more difficult to accomplish when employees are expected to buy 
their own PPE. (It is not generally feasible to provide PPE and then 
charge the workers for it.) . . . It is also difficult to ensure 
that the employees are properly trained in the care and use of PPE 
if the employer does not provide it. (ERG 1998)

    Thus, two key problems can occur when employers fail to pay for 
PPE: either the PPE is not worn in cases where it is needed to protect 
against injury or illness, or the PPE is worn inappropriately. The 
consequences of these failures are the same: employees are exposed to 
chemical, physical, or safety hazards in the workplace, which, in turn, 
results in injuries, illnesses, and death (as documented in OSHA's 
recent respiratory protection rule (63 FR 1152, January 8, 1998). 
Another panel member tried to estimate the quantitative differences 
between employer and employee payment for PPE:

    When employees are made responsible for purchasing their own 
PPE, I believe that their probabilities of (1) actually purchasing 
PPE, and (2) purchasing appropriate PPE, are diminished because they 
must use some or all of their funds for this equipment, whereas they 
would rather save this money for their own purposes, and they simply 
don't have the resources to understand and choose among available 
PPE. There is always a reluctance to use one's own funds to pay for 
replacing or repairing workplace PPE. I believe that when employees 
are responsible for their own PPE that a higher incidence of non-use 
or misuse occurs. I would expect that figure would be approximately 
40% for employee-purchased PPE versus 15 to 20% for employer-
purchased PPE. (ERG 1998)

    The estimates provided by this expert panelist are consistent with 
the statements of other panelists, as well as with OSHA's enforcement 
and regulatory experience. Most panel members indicated that if the 
employer did not pay for PPE, the PPE was not provided. To the extent 
that this is the case, OSHA's estimates may actually underestimate the 
effects of having employers pay for and provide PPE. To estimate the 
benefits of employer PPE payment, OSHA used the panel's estimates of 
the differences in effectiveness between employee-paid and employer-
paid PPE, and the estimates of the total numbers of injuries, illnesses 
and deaths preventable by PPE that were developed for the 1994 PPE 
rulemaking. OSHA invites comment from those with experience in this 
area, to assist the Agency to refine, revise if necessary, or confirm 
the accuracy of this estimate, as discussed below.
    In 1994, OSHA examined, for each body part, the number of injuries 
preventable by the then newly revised PPE rule [59 FR 16352]. OSHA 
reviewed 1,170 OSHA Form 200s describing almost 64,000 injuries; these 
forms had been submitted to OSHA in response to the 1989 PPE survey. 
The profile of injuries, as defined by body part, very closely tracked 
those in BLS's injury data base [OSHA 1994, pp. V-11-13]. Information 
on the nature of the injury and the circumstances surrounding the 
accident was used to determine the extent to which PPE would have 
prevented the injury. Most injuries were not considered preventable by 
PPE. For example, sprains and strains (nature), or injuries caused by 
overexertion (circumstance), were considered not to be preventable by 
PPE. Eye injuries, by contrast, tended to be highly preventable.
    From these injury descriptions, it was possible to determine that 
approximately one-third of injuries in general industry were 
preventable with PPE. However, within this group, it was apparent that 
PPE could be particularly effective in protecting certain body parts. 
As indicated in the 1994 analysis [OSHA 1994, p. V-16], eye injuries 
were estimated to be 95 percent PPE preventable; foot and toe, 75 
percent; face and ear, 68 percent; and hand and finger, 63 percent. 
Head injuries were judged to be 45 percent preventable. Over 90 percent 
of these injuries were incurred by production workers in the subset of 
high-hazard industries selected for study in the PPE survey; in other 
words, they reflect the sort of preventable process-related PPE 
injuries which Sec. 1910.132 was intended to prevent. The full analysis 
of the injuries judged to be preventable through the proper use of PPE 
is presented in detail in the Regulatory Impact Assessment [OSHA 1994]. 
In that analysis, OSHA found that almost 900,000 injuries in the 
general industry and maritime sectors would be preventable by full 
compliance with the new PPE rule, i.e., that 900,000 injuries could 
have been prevented if employees had actually worn the appropriate 
protective equipment. This analysis did not cover the construction 
sector. OSHA assumed that the same preventability factors would apply 
in construction as in the general industry and maritime sectors.
    For the analysis of the Employer Payment for PPE rule, OSHA took 
into consideration the fact that compliance with the rule will not be 
perfect and that the likelihood of full compliance is influenced by who 
pays for the PPE. Therefore, OSHA developed an estimate of the number 
of injuries, illnesses, and deaths potentially averted by this rule by 
combining the following information: 6
---------------------------------------------------------------------------

    \6\ The number of injuries resulting from the lack of 
appropriate PPE can be determined by examining both the likelihood 
of employers not providing PPE under the two payment scenarios, and 
data on the current pattern of payment for PPE. The equation for a 
particular body part and relevant type of PPE can be described this 
way:
    ((.4Ep/(.4Ep + .175En))  x  total PPE-preventable injuries = # 
injuries among employees paying for their own PPE Where:
    Ep = # of employees paying for their own PPE
    En = # of employees not paying for their own PPE (employer 
paying)
    Having determined the number of injuries falling into this 
group, it is possible to estimate the number of injuries preventable 
by reassigning payment responsibility to the employer. Once the 
number of injuries among the employee-paying group is derived, it 
has to be recognized that not all of these will be preventable by 
switching payment systems. Since the number of injuries was derived 
assuming that 60% of the employee-paying population is already 
wearing PPE, the proper comparison is between the 40% nonusage in 
the employee-paying population and the 17.5% nonusage in the 
employer-paying population. Therefore, the percentage of injuries 
remaining after switching to employer-payment would be .175/.4 or 44 
percent of the original number of injuries among the employee-paying 
group. Thus, 1-0.175/.4 provides the percentage prevented. In the 
abstract, this equation is:
    The number of injuries prevented by switching to employer 
payment= (# of PPE-related injuries occuring among the employee-
paying group)  x  1-(% of time PPE is not worn when employers pay / 
% of time PPE is not worn when employees pay))
    Using the specific numbers in this analysis, this becomes:
    The number of injuries prevented by switching to employer 
payment= (# of PPE-related injuries occurring among the employee-
paying group)  x  (1-(.175/.4))
    In other words, 56 percent (1-(.175/.4)) of these injuries would 
be preventable by switching payment patterns from employees to 
employers.
    This analysis has included only half of the PPE-related injuries 
occurring currently in the United States because approximately half 
of all employees are already covered by employer payment 
requirements in State-plan States. This analysis also focuses only 
on those body parts, e.g., eyes, head, hand, foot, most likely to be 
protected by PPE.

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[[Page 15422]]

    (1) the number of injuries preventable through proper use of PPE, 
classified by type of PPE (from 1994 economic analysis);
    (2) the expert panel member's estimate that PPE will be missing or 
used inappropriately 17.5% of the time when the employers pay for their 
employee's PPE;
    (3) the expert panel member's estimate that PPE will be missing or 
used inappropriately 40% of the time when employees pay for their own 
PPE; and
    (4) the number of employees with employer paid PPE (see the 
Industry Profile section of this analysis).
    Table VI-3 presents the number of injuries preventable by this 
rulemaking in general industry and construction, by body part. This 
analysis indicates that the proposed rule would avert approximately 
47,785 injuries annually.
    Although the primary benefit of the proposed rule is that it will 
avert injuries and save their associated costs, there are cases where 
the lack of appropriate PPE has been fatal. At the time of the 1994 
rulemaking, 24 fatal head injuries were considered to be preventable 
every year in general industry through the use of PPE. Based on that 
analysis, the Agency estimates that 6.9 percent of these cases, or an 
average of 1.7 (.069  x  24) fatal head injuries annually, will be 
averted by the proposed rule. According to BLS's Census of Fatal 
Occupational Injuries, there were 263 fatal head injuries in the 
construction industry in 1993, 44 of which were coded as ``struck by'' 
or ``struck against.'' Since a larger portion of employees pay for 
their own PPE in construction, the impact of the proposed rule is 
likely to be greater in construction than in general industry. OSHA 
therefore estimates that 12.7 percent of these 44 fatalities are 
preventable, for a total of 5.6 (44  x  .127) averted fatal head 
injuries annually. Therefore, in general industry and construction, the 
Agency estimates that approximately 7 (5.6 + 1.7) lives could be saved 
annually by compliance with the proposed rule.
    The Agency also believes that the proposed rule will achieve 
substantial benefits in the area of fall protection, particularly in 
construction. The proposal would prevent a number of fatalities and 
severe injuries that are now occurring either because employee-provided 
PPE provides inadequate protection or because the employee arrives on 
site without the necessary PPE. For example, OSHA estimated in the 
Regulatory Impact Analysis for Subpart M that fall protection systems 
would prevent nearly 80 fatalities and 26,600 lost workdays annually. 
To the extent that employers provide more effective harnesses and 
lanyards than those currently being provided by employees, or ensure 
that this equipment is available for use by the employee, this rule 
will avert deaths and injuries caused by falls. However, at the current 
time the Agency does not have sufficient detail on these accidents to 
quantify the benefits of this effect.

  Table VI-3.--Injuries Judged To Be Preventable If Employers Are Required To Pay For PPE Now Being Paid For By
                                                    Employers
----------------------------------------------------------------------------------------------------------------
                                                                                           Total       Injuries
                                                                              Total       injuries    judged to
                                                 Injuries     Percent of    judged to    judged to        be
                                                judged to    those judged       be           be       prevented
                  Body part                         be          to be      preventable  preventable       by
                                               preventable   preventable    and within     among      requiring
                                                  by PPE       by this       scope of    employees     employer
                                                              rulemaking       this      paying for  payment for
                                                                 \1\        rulemaking      PPE          PPE
----------------------------------------------------------------------------------------------------------------
General Industry
    Eye......................................      117,296          31.0        36,362        8,085        4,548
    Face & ear...............................       36,810          50.0        18,405        4,427        2,490
    Head & neck..............................      116,050          50.0        58,025       14,272        8,028
    Hand & finger............................      281,221          50.0       140,611       30,771       17,309
    Foot & toe...............................      129,452           5.5         7,120        4,109        2,311
                                              ------------------------------------------------------------------
      Subtotal...............................      680,830  .............      260,522       61,665       34,686
Construction:
    Eye......................................       25,524          31.0         7,912        3,824        2,151
    Face & ear & head & neck.................       13,445          50.0         6,722        3,027        1,703
    Hand & finger............................       44,589          50.0        22,295       15,509        8,724
    Foot & toe...............................       21,399           5.5         1,177          926          521
                                              ------------------------------------------------------------------
      Subtotal...............................      104,957  .............       38,106       23,286       13,098
                                              ==================================================================
      Total..................................      785,787  .............      298,629       84,951       47,785
----------------------------------------------------------------------------------------------------------------
\1\ Only half of these injuries are judged to be within the direct coverage of this rule because employer
  payment rules already apply in State plan States; non-prescription safety glasses constitute approximately 62%
  of safety glasses; shoes with metatarsal guards account for 11% of all safety shoes.
 
Source: OSHA Office of Regulatory Analysis.


[[Page 15423]]

Direct Savings Resulting From the Reduction in Injuries Attributable to 
the Proposed Rule

    This section evaluates the direct savings associated with the 
injuries averted by the proposed rule; it does not attempt to place a 
monetary value on the lives that will be saved by compliance with the 
rule or on pain, suffering and other similar effects avoided. These 
other effects of occupational injuries and illnesses include the pain 
and suffering experienced by workers and their families, loss of 
esteem, disruption of family life, and feelings of anger and 
helplessness. Occupational injuries and illnesses impose an enormous 
burden on society in addition to the direct outlays of money for 
medical expenses, lost wages and production, and other purely economic 
effects.
    Some aspects of the burden of occupational injuries and illnesses 
can be quantified in monetary terms. These aspects of the problem of 
work-related injuries and illnesses can be measured by the losses 
experienced by employees and by the other costs that are externalized 
to the rest of society. One consequence of the failure of PPE programs 
to prevent job-related injuries is the growth of enormously expensive 
income maintenance programs such as workers' compensation and long-term 
disability programs. These costs impose a burden on society separate 
from and in addition to the human toll in pain and suffering caused by 
workplace-related injuries.
    One measure of some of the losses associated with lost time due to 
work-related injuries is the lost output of the worker, measured by the 
value the market places on his or her time. This value is measured as 
the worker's total wage plus fringe benefits. Other costs include: (1) 
Medical expenses, (2) costs of workers' compensation insurance 
administration, (3) indirect costs to employers (other than those for 
workers' compensation administration), and (4) legal expenses of 
employees.
    OSHA estimates the value of lost output by starting with workers' 
compensation indemnity payments and then adding other losses associated 
with work-related illnesses and injuries. The Agency then follows four 
steps to arrive at a value for lost output:
    (1) Calculate PPE-related illness and injury in terms of workers' 
compensation indemnity payments;
    (2) Add the difference between the value of these indemnity 
payments and the worker's after-tax income, based on various studies 
comparing workers' compensation payments with after-tax income. This 
step estimates the magnitude of lost after-tax income;
    (3) Add the estimated value of taxes, based on the typical value of 
taxes as a percentage of after-tax income. This step estimates the 
value of total income lost; and
    (4) Add the value of fringe benefits, based on data on fringe 
benefits as a percentage of total income. This step estimates the total 
market value of the lost output.
    In this approach, injuries are clearly undervalued, because OSHA 
assumes that the value associated with injuries is the same as the 
value of claims for workers' compensation. An analysis of workers' 
compensation claim data from the Argonaut Insurance Company for 1993 
show that the weighted average claim value of the injuries shown in 
Table VI-3 is $2,408. Based on nationwide estimates from the U.S. 
Social Security Administration, an average of 58 percent of these 
payments are paid out for indemnity, and the remaining 42 percent are 
paid out for medical costs [USSA, 1993].

Indemnity/Lost Income

    Workers' compensation indemnity payments typically take two forms: 
temporary total disability payments, which cover absences from work 
prior to the stabilization of the condition, and permanent disability 
payments, which compensate the worker for the long-term effects of a 
stabilized condition. On a nationwide basis, it is estimated that 
permanent disability payments account for 61.5 percent of all indemnity 
payments [Berkowitz and Burton].
    The extent to which income is replaced by each type of indemnity 
payment (i.e., temporary or permanent) differs. First, although rules 
vary by State, temporary disability income is designed in most States 
to replace two-thirds of the worker's before-tax income. However, most 
States place a maximum and minimum on the amount of money paid out to 
the worker, regardless of his/her actual former income. Studies by the 
Worker Compensation Research Institute (WCRI) show that temporary total 
disability payments replace between 80 to 100 percent of the after-tax 
income of the majority of workers [WCRI, 1993]. From 3 to 44 percent of 
the workers receive less than 80 percent of their after-tax income, and 
from 0 to 16 percent receive more than 100 percent of their after-tax 
income. Unfortunately, WCRI does not provide estimates of the average 
replacement rates for all workers in a State. However, based on these 
data, it seems reasonable to assume that, on average, workers receive 
no more than 90 percent of their after-tax income while on temporary 
disability. On the other hand, data show that permanent partial 
disability payments replaced 75 percent of income lost in Wisconsin, 58 
percent in Florida, and 45 percent in California [Berkowitz and 
Burton]. OSHA uses the simple average of these three--59 percent--to 
estimate the extent of after-tax income replacement for permanent 
partial disabilities 7.
---------------------------------------------------------------------------

    \7\ The use of a simple average rather than a population-
weighted average results in a lower estimate of income loss and is 
thus a conservative approach.
---------------------------------------------------------------------------

    Based on these data, OSHA estimated after-tax income from the total 
indemnities paid for injuries preventable by the proposed rule by 
assuming, based on estimates for all workers' compensation claims 
provided by Berkowitz and Burton, that temporary disabilities account 
for 38.5 percent of all PPE-preventable indemnity payments and replace 
90 percent of after-tax income, and that permanent partial disabilities 
8 account for 61.5 percent of PPE-preventable indemnity 
payments and replace 60 percent of after-tax income.
---------------------------------------------------------------------------

    \8\ Permanent ``partial'' disabilities include all permanent 
disabilities, ranging from 1 to 100 percent disabled.
---------------------------------------------------------------------------

Fringe Benefits

    In addition to after-tax income loss, lost output includes the 
value of taxes that would have been paid by the injured worker and 
fringe benefits that would have been paid by the worker's employer. 
Total income-based taxes (individual Social Security payments, Federal 
income tax, and State income tax) paid were assumed to be 30 percent of 
total income. Fringe benefits were estimated as 39 percent of before-
tax income, based on the average fringe benefit data provided by BLS 
[BLS, 1997].
    Tables VI-4 and VI-5 apply the estimation parameters developed 
above to calculate the total value of the lost output potentially 
associated with temporary and permanent partial disabilities, 
respectively, once the final standard has been fully implemented. As 
shown, the total value of the lost output associated with potentially 
avoidable accepted workers' compensation claims that result in 
temporary total disability is estimated at $55.8 million, and that 
associated with permanent partial disabilities at $129.7 million a 
year.

[[Page 15424]]



    Table VI-4.--Value of Lost Output Associated With Temporary Total
          Disabilities Resulting From PPE-Preventable Injuries
------------------------------------------------------------------------
                                                          Injuries/costs
                     Type of benefit                         prevented
------------------------------------------------------------------------
Total Number of PPE-Preventable Cases Annually..........          47,785
Weighted Average Total Cost per Claim...................          $2,408
Indemnity Share of Payment (58% of Total Claim).........          $1,396
Medical Share of Payment (42% of Total Claim)...........          $1,011
Value of Temporary Total Disability Indemnity Payments       $25,689,814
 \1\....................................................
Lost-After-Tax Income Above the Value of Indemnity            $2,854,424
 Payments \2\...........................................
Lost Value of Tax Payments \3\..........................     $11,866,247
Lost Value of Fringe Benefits \4\.......................     $15,426,122
------------------------------------------------------------------------
    Total...............................................     $55,836,606
------------------------------------------------------------------------
\1\ Number of cases X indemnity payments per case X 38.5 percent
  indemnity value share attributable to temporary total disability.
\2\ Temporary total disability payments have been estimated to equal 90
  percent of lost after-tax income.
\3\ Taxes are estimated to equal 30 percent of before-tax income.
\4\ Fringe benefits=39 percent of wage income [BLS, 1995].
 
Source: U.S. Department of Labor, OSHA, Office of Regulatory Analysis.


   Table VI-5.--Value of Lost Output Associated With Permanent Partial
          Disabilities Resulting From PPE-Preventable Injuries
------------------------------------------------------------------------
                                                          Injuries/costs
                     Type of benefit                         prevented
------------------------------------------------------------------------
Number of PPE-Preventable Injury Cases..................          47,785
Value of Indemnity Payments (Permanent Partial) \1\.....     $41,036,975
Lost-After-Tax Income Above the Value of Indemnity           $28,517,220
 Payments \2\...........................................
Lost Value of Tax Payments \3\..........................     $26,142,441
Lost Value of Fringe Benefits \4\.......................     $33,985,174
                                                         ---------------
    Total...............................................    $129,681,810
------------------------------------------------------------------------
\1\ Number of cases prevented X indemnity payments per claim X 61.5
  percent value share attributable to permanent partial disability.
\2\ Permanent partial disability payments are estimated to equal 59
  percent of the value of lost after-tax income.
\3\ Taxes are estimated to be 30 percent of before tax income.
\4\ Fringe benefits=39 percent of wage income (BLS, 1995].
 
Source: U.S. Department of Labor, OSHA, Office of Regulatory Analysis.

Medical

    Medical costs do not include any first-aid costs incurred by the 
employer and, in some cases, costs for transportation to a medical 
facility; however, most elements of medical costs are included in the 
share of payments paid for medical costs, estimated to be 42 percent of 
the cost of the claims. Costs for treating injuries will remain 
relatively constant, regardless of who is actually paying for the 
medical care (i.e., the employer through workers' compensation, or a 
medical insurer). As presented in Table VI-6, OSHA estimates the 
medical costs of injuries preventable by the proposed standard to be 
$48.3 million a year.

   Table VI-6. Annual Social Benefits Associated With the Reduction in
            Injuries as a Result of Employer Payment for PPE
------------------------------------------------------------------------
                                                          Injuries/costs
                     Type of benefit                         prevented
------------------------------------------------------------------------
Lost Output Associated with Temporary Disabilities \1\..     $55,836,606
Lost Output Associated with Permanent Disabilities \2\..     129,681,810
Medical Costs \3\.......................................      48,319,399
Insurance Administrative Costs \4\......................      29,912,009
Indirect Costs \5\......................................      23,929,607
                                                         ---------------
    Total...............................................     287,679,432
------------------------------------------------------------------------
\1\ Derived from Table VI-4.
\2\ Derived from Table VI-5.
\3\ Calculated by multiplying the number of injuries by the value of
  medical payments presented in Table VI-4.
\4\ Calculated by multiplying the total value of claims times 26
  percent.
\5\ Calculated by multiplying the total value of workers' compensation
  medical and indemnity payments times 20.8 percent.
 
 Source: U.S. Department of Labor, OSHA, Office of Regulatory Analysis.

Administrative Costs

    The administrative costs of workers' compensation insurance include 
all of the costs associated with the administration of workers' 
compensation insurance. Such costs include any funds spent directly on 
claims adjustment, as well as all other administrative costs incurred 
by the insurer in conjunction with experienced losses.
    OSHA estimates the administrative costs of PPE-related injury 
claims as follows:
     Costs to private insurance companies are estimated, based 
on 1990 data, as 35.8 percent of the costs of incurred claims [Klein et 
al., 1993]. These costs include those for claims adjustment, sales, 
general expenses, taxes, licenses, and fees (historical data show that 
all of these elements of private insurance costs increase as the value 
of benefits paid out increases).
     Costs to State funds were estimated, based on 1990 data, 
as 17.8 percent of the costs of incurred claims [Klein et al., 1993]. 
These costs include those for claims administration and for costs 
labeled as ``general costs.''
     Costs to self-insured companies, estimated by the Social 
Security Administration to be 6.8 percent of the value of benefits paid 
in 1990 [Social Security Administration, 1993].
    To estimate the aggregate value of the administrative costs of 
insurance, these costs are weighted by the value of the benefits 
payments made by each type of insurer (i.e., private insurer, state 
fund, etc.), based on 1990 data. This calculation is shown in Table VI-
7, which indicates that estimated weighted administrative costs 
constitute 26 percent of the total value of claims. The total value of 
claims includes the value both of the indemnity and medical portions of 
insurance company payments. The costs shown in Table VI-7 represent the 
administrative costs associated with workers' compensation.

[[Page 15425]]



     Table VI-7.--Derivation of Average Administrative Costs as a Percent of the Value of Claims, by Type of
                                                    Insurance
----------------------------------------------------------------------------------------------------------------
                                                                  Administrative
                                                                    costs as a
                                                                   percentage of   Percentage of
                        Type of insurance                            incurred     total benefits  Weighted value
                                                                    claims \1\       paid \2\
                                                                      (1990)          (1990)
----------------------------------------------------------------------------------------------------------------
Private Insurance...............................................            35.5            58.1            20.6
State Fund......................................................            17.8            22.8             4.1
Self-Insurance..................................................             6.8            19.4             1.3
                                                                 -----------------
    Total.......................................................  ..............  ..............           26.0
----------------------------------------------------------------------------------------------------------------
\1\ From Klein et al. (1993) for private insurance and State funds, and U.S. Social Security Administration
  (1993) for self-insurance.
\2\ Values for administrative costs as a percent of incurred claims, weighted by total benefits paid.

    It should be noted that cases that fall outside the workers' 
compensation system will typically have administrative costs associated 
with them--indeed, to the extent they are borne by private medical 
insurers, they will carry relatively greater administrative expenses 
than the average estimated here.

Indirect Costs

    The term ``indirect costs'', describes the costs of work-related 
injuries that are borne directly by employers but are not included in 
workers' compensation claim costs. Such costs are best estimated by 
looking at the costs an employer actually incurs at the time a workers' 
compensation claim is filed. These costs include a number of social 
benefits, such as payments of sick leave to workers for absences that 
are shorter than the workers' compensation waiting period, losses in 
production associated with the injured workers' departure and return to 
work, losses in the productivity of other workers, and a wide variety 
of administrative costs other than those borne directly by the workers' 
compensation insurer, e.g., medical management costs for the injured 
worker. Based on a study [Hinze & Applegate] of indirect costs of 
injuries in the construction industry, OSHA estimates that indirect 
costs are 20.8 percent of the value of workers' compensation medical 
and indemnity payments, i.e., add up to an indirect cost multiplier of 
1.21. As indicated in Table VI-6, the Agency estimates that this 
proposed revision to the PPE standard will save $23.9 million annually 
in these indirect costs.
    Taken in its entirety, the proposed amendment to the PPE standard 
is estimated to save $287.7 million annually in direct costs savings by 
avoiding preventable injuries. These direct cost savings do not include 
the economic value of the loss of leisure time. They do not account for 
the burden of chores that are forced on other household members or 
hired out. The direct savings also do not include the value of 
preventing pain and suffering or loss of life.

Costs of Compliance

    To assess the costs employers may incur to comply with the proposed 
rule, OSHA first estimated the total costs associated with PPE 
currently covered by OSHA PPE standards and affected by this rule. 
OSHA's estimates of the costs of all required PPE were derived from the 
PPE use estimates shown in Table VI-1, subtracting employees in State 
plan States, who, as indicated in the previous section, comprise 
approximately half of the affected workers. Unit costs for equipment 
were taken from the Agency's economic analysis (Ex. 56, Docket S-060) 
in support of the 1994 rulemaking that revised the personal protective 
equipment standard (29 CFR 1910.132). Data from that analysis were 
supplemented with new estimates of the unit costs of welding equipment 
and goggles, and of fall protection equipment (ERG 1998). All cost 
estimates were then updated to reflect 1998 prices.9 This 
figure was then multiplied by the percentage of these costs not 
currently being borne by employers (see Table VI-2).
---------------------------------------------------------------------------

    \9\ Annualized costs, updated from those used in the Final 
Regulatory Impact Analysis for the 1994 PPE rulemaking (OSHA 1994), 
are hard hats, $6.67; non-prescription safety glasses, $6.69; 
goggles, $15.07; gloves, $14.07; and faceshields, $13.45. According 
to the expert panel, welders need both helmets and goggles at 
different times of the year. Welding helmets were assumed to have a 
life expectancy of 5 years and to cost $32.00; welding goggles were 
assumed to be replaced every 3 months, and to cost $11.00 (these 
assumptions yield a combined annualized welding unit cost of 
$51.80). Fall protection (body harness and lanyard) is assumed to 
have a life expectancy of 5 years, and to cost $60.00 (harnesses) 
and $60.00 (lanyards), respectively, yielding a combined annualized 
fall protection unit cost of $29.27. Reusable chemical protective 
coveralls were assumed to have a life expectancy of one year and to 
cost $20.00, based on a current supply catalog (Lab Safety 1995). 
Safety shoes with metatarsal guards cost approximately $100 (ERG 
1998); based on an average two year life (OSHA 1994) this yields an 
annualized cost of $55.17.
---------------------------------------------------------------------------

    Table VI-8 shows the total annualized costs of compliance for the 
proposed rule, by industry and kind of PPE. Total annualized costs are 
$61.9 million. Gloves and safety shoes (with metatarsal guards) account 
for the largest portion of these costs, at $17.3 and $14.3 million, 
respectively; welding helmets/goggles account for an additional $10.2 
million per year. These three types of PPE together account for 68 
percent of all of the proposed rule's costs of compliance. Construction 
special trades (SIC 17), at $24.2 million, and building construction 
contractors (SIC 15), at $6.2 million, are the industries estimated to 
incur the greatest costs.

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Economic Impacts and Certification of No Significant Impact

    OSHA analyzed the economic impacts of the proposed rule by 
calculating average annualized compliance costs as a percentage of the 
sales and profits of all establishments in affected industries. As 
shown in Table VI-9, annualized costs to employers for establishments 
in all affected industries are less than 0.01 percent of sales and only 
0.02 percent of profits. Even in the most affected industry, Welding & 
Other Repair (SIC 76), annualized costs are still less than 0.5 percent 
of profits. Costs of this magnitude do not threaten the financial 
health of even the most marginal firm. Since most employers in most 
industries already pay for PPE, the major competitive effect of the 
rule is to limit any small short-term competitive advantage a few firms 
gain by not paying for PPE, i.e., by requiring their employees to pay 
for PPE that other employers in their industry pay for. As shown in the 
benefits section, many firms already pay for PPE because it proves 
cost-effective; many other firms may find that, when benefits as well 
as costs are considered, the costs of PPE are more than offset by these 
benefits.
    OSHA also assessed the economic impacts of the proposed rule on 
small firms within each affected industry. Impacts on two sizes of 
small firm were estimated: those with fewer than 500 employees, and 
those with fewer than 20 employees. In using 500 employees and 20 
employees to characterize firms for this screening analysis for 
impacts, OSHA is not proposing definitions of small business that are 
different from those established by the Small Business Administration 
(SBA) in its Table of Size Standards. The SBA size definitions are SIC-
code specific, and are generally expressed either in terms of number of 
employees or as annual receipts. Instead, OSHA is using 500 employees 
and 20 employees as a simple method of screening for significant 
impacts across the large number of industries potentially affected by 
the proposed rule. Use of this approach avoids the need to interpolate 
because the underlying industry profile data do not correspond with the 
SIC-specific size categories established by the SBA. (OSHA notes that, 
for almost all of the industries affected by this rulemaking, the SBA 
size definitions fall within the 20- to 500-employee range.) OSHA 
believes that this screening approach will capture any significant 
impacts on small firms in affected industries. The Agency welcomes data 
supporting this assumption or data demonstrating that firms in the 
industry-specific size classes used by the SBA will experience 
significant impacts.
    The results of these analyses (Tables VI-10 and VI-11, 
respectively) demonstrate that the annualized costs of compliance do 
not exceed 0.1 percent of sales or 1 percent of profits for small firms 
in any covered industry. Based on these analyses, in accordance with 
the Regulatory Flexibility Act (5 U.S.C. 605) OSHA certifies that the 
proposed rule will not have a significant impact on a substantial 
number of small entities.
    Because statistically meaningful survey data are available only at 
the two-digit Standard Industrial Classification level, OSHA has 
conducted this analysis of economic impacts at the 2-digit level. OSHA 
believes that this level of analysis adequately captures meaningful 
variations in economic impacts. Further, the costs are so low that even 
if a sub-industry were to have substantially higher costs as a 
percentage of sales or profits, the financial health of that sub-
industry would not be in any danger. However, the Agency requests 
comment on any specific industry that may have an unusual pattern of 
PPE usage or payment that could lead to more severe impacts than those 
portrayed for its 2-digit sector.
    To test its conclusions that the regulation is economically 
feasible and will not have a significant impact on a substantial number 
of small entities, the Agency performed sensitivity analyses relying on 
``worst case'' scenarios. First, in order to test the potential impact 
on OSHA's estimates of errors in the expert panel's characterization of 
payment patterns, the Agency examined impacts across all industries 
using the extreme assumption that employers were not currently paying 
for any protective equipment. Under this extreme scenario, the proposed 
rule's costs of compliance would quadruple, but the impacts of even 
these costs in nearly all industries would still be below one percent 
of profits. The largest impacts would occur in SIC 76 (Welding & other 
repair), where costs under this extreme scenario would be less than 3 
percent of profits.
    Second, the Agency focused on the construction industry, which was 
not covered in OSHA's 1989 PPE use survey and is estimated in OSHA's 
analysis to account for half of the rule's costs of compliance, to see 
what the impacts would be under an extremely unlikely scenario that 
assumed that all construction employees wore all types of 
PPE.10 Under this scenario, the largest impact would occur 
in SIC 17, where costs would equal 2.1 percent of profits. This result 
shows that, even if the Agency had no data on PPE usage in the 
construction industry and simply assumed that every employee in the 
sector used every possible type of PPE, the proposed standard would 
still be economically feasible and would not have a significant impact 
on a substantial number of small entities.
---------------------------------------------------------------------------

    \10\ This assumes that all construction employees need welding 
PPE, fall protection, chemical protective clothing and safety shoes 
with metatarsal guards and that the same workers need faceshields 
and standard goggles in addition to welding helmets and welding 
goggles.
---------------------------------------------------------------------------

    Third, the Agency has constructed a ``worst-worst'' case scenario 
for the construction industry; this scenario assumes that employees in 
this industry are wearing all types of PPE and pay for all of this PPE, 
i.e., that no employer currently pays anything for any type of PPE. 
Even under this scenario, the costs of the proposed rule would be less 
than 5 percent of profits and less than 1 percent of revenues for firms 
in all construction subsectors. This analysis shows that even if the 
Agency had no data on either PPE use or PPE payment patterns in the 
construction industry, it would still be reasonable to conclude that 
the proposed standard is economically feasible in the construction 
sector and that small firms in that sector would not experience 
significant impacts.

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Environmental Impact Analysis

    OSHA has reviewed this proposed rule in accordance with the 
National Environmental Policy Act (NEPA) (42 USC 4321 et seq.), the 
regulations of the Council on Environmental Quality (40 CFR Part 1500), 
and DOL's NEPA procedures (29 CFR Part II). As a result of this review, 
OSHA has determined that this action will have no significant impact on 
the external environment.

Unfunded Mandates Analysis

    This proposed rule on Employer Payment for Personal Protective 
Equipment has been reviewed in accordance with the Unfunded Mandates 
Reform Act of 1995 (UMRA) (2 USC 1501 et seq.) and Executive Order 
12875. As discussed in the Preliminary Economic Analysis, OSHA 
estimates that compliance with the proposed rule will require 
expenditures of $62.3 million per year by affected employers. 
Therefore, this proposed rule is not a Federal private sector mandate 
and is not a significant regulatory action within the meaning of 
Section 202 of UMRA. OSHA standards do not apply to State and local 
governments except in States that have voluntarily elected to adopt an 
OSHA State plan. Consequently, the proposed rule does not meet the 
definition of a ``Federal intergovernmental mandate'' (Section 421(5) 
of UMRA). In addition, the Agency has concluded that virtually all 
State-plan States, the only States in which this rule could have any 
effect on State and local government employers, already require that 
employers pay for required PPE. Thus, this rule will not have an impact 
on employers who are State and local governments. In sum, this proposed 
rule does not impose unfunded mandates within the meaning of UMRA.

References for the Preliminary Economic Analysis

Berkowitz, M., and Burton, J. Permanent Partial Disability Benefits 
In Worker Compensation. W. E. Upjohn Institute for Employment 
Research, Kalamazoo, Michigan, 1987.
Bureau of Labor Statistics, ``Employer Costs for Employee 
Compensation Summary'', News Release, October 21, 1997.
Bureau of National Affairs, Basic Patterns in Union Contracts, 
Fourteenth Edition, BNA Books, 1995.
Business Roundtable. Improving Construction Safety Performance: A 
Construction Industry Cost Effectiveness Project. Report A-3, 
January, 1982.
Chelius, J., Galvin, D., and Owens, P. Disability: It's more 
expensive than you think. Business & Health, pp. 78-84, Mid-March 
1992.
Eastern Research Group, Patterns of PPE Provision, 1998.
Hinze, J. and Appelgate, L.L. Costs of Construction Injuries. 
Journal of Construction Engineering and Management 117(3):537-550, 
1991.
Klein, R.W., Nordman, E.C., and Fritz, J.L. Market Conditions in 
Workers' Compensation Insurance. Interim Report Presented to the 
NAIC Workers' Compensation Task Force, July 9, 1993.
Lab Safety Supply, General Safety Catalog--Personal & Environmental 
Safety, Janesville, WI, January 1995.
Levitt, R.E., Parker, H.W., and Samelson, N.M. Improving 
Construction Safety Performance: The User's Role. Prepared under 
contract for The Business Roundtable Construction Industry Cost 
Effectiveness Project, August 1981.
Levitt, R.E., and Samelson, N.M. Construction Safety Management. 
McGraw-Hill Book Company, New York, New York, 1987.
Occupational Safety and Health Administration, Office of Regulatory 
Analysis, Background Document to the Regulatory Impact and 
Regulatory Flexibility Assessment for the PPE Standard, 1994, 
Exhibit 56, S-060.
Office of Technology Assessment, Preventing Illness and Injury in 
the Workplace, Volume 2--Part B: Working Papers, 1994; Exhibit 189, 
Docket H049.
U.S. Interdepartmental Workers Compensation Task Force. Workers' 
Compensation Reform: Challenge for the 80's. 1979.
U.S. Social Security Administration. Annual Statistical Supplement 
to the Social Security Bulletin. Washington, D.C., 1993.
Worker Compensation Research Institute. Income Replacement in 
California. December, 1993.
Bureau of National Affairs, Basic Patterns in Union Contracts, 
Fourteenth Edition, BNA Books, 1995.

VII. Public Participation

Written Comments

    Interested parties are invited to submit written data, views, and 
comments with respect to this proposal. These comments must be 
postmarked by June 14, 1999. Written comments are to be submitted in 
quadruplicate, or in 1 original (hard copy) and 1 disk (3\1/2\'' or 
5\1/4\'') in WordPerfect 5.0, 5.1, 6.0, 8.0, or ASCII, to the Docket 
Office, Docket No. S-042, Room N2625, U.S. Department of Labor, 200 
Constitution Ave. N.W., Washington, DC. 20210.
    Comments may also be submitted electronically through OSHA's 
Internet site at URL, http://www.osha-slc.gov/e-comments/e-comments-
ppe.html. Please be aware that information such as studies, journal 
articles, and so forth cannot be attached to the electronic response 
and must be submitted in quadruplicate to the above address. Such 
attachments must clearly identify the respondent's electronic 
submission by name, date, and subject, so that they can be attached to 
the correct response. These comments must be transmitted by June 14, 
1999.
    All comments, views, data, and arguments received within the 
specified comment period will be made part of the record and will be 
available for public inspection and copying at the above Docket Office 
address.

Notice of Intention To Appear at the Informal Hearing

    Under section 6(b)(3) of the Occupational Safety and Health Act, 
OSHA is scheduling an informal public hearing to provide the public 
with an opportunity to testify on the issues raised by the proposed 
standard. The informal public hearing will be held in Washington, DC on 
June 22, 1999, and will extend through July 2, 1999, depending on the 
number of persons intending to participate.
    The hearing will begin at 9:30 a.m. on June 22, 1999 in the 
auditorium of the Frances Perkins Building, U.S. Department of Labor, 
200 Constitution Avenue NW, Washington, DC 20210.
    All persons who wish to participate in the hearing must file four 
copies of a notice of intention to appear. This notice must be 
postmarked on or before June 1, 1999. The notice of intention to 
appear, which will be available for inspection and copying at the OSHA 
Docket Office (Room N2625), telephone (202) 693-2350, must contain the 
following information:
    1. The name, address, and telephone number of each person to 
appear;
    2. The capacity in which the person will appear;
    3. The approximate amount of time required for the presentation;
    4. The issues that will be addressed;
    5. A brief statement of the position that will be taken with 
respect to each issue; and,
    6. Whether the party intends to submit documentary evidence and, if 
so, a brief summary of it.
    Mail the notice of intention to appear to: Docket Office, Docket S-
042, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, 
DC 20210; telephone (202) 693-2350.
    A notice of intention to appear also may be transmitted by 
facsimile to (202) 693-1648 (Attention: Docket S-042), by June 1, 1999 
provided that the original and 3 copies are sent to the same address 
and postmarked no more than 3 days later.

Filing of Testimony and Evidence Before the Hearing

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

[[Page 15432]]

hearing, or who will submit documentary evidence, must provide in 
quadruplicate, the complete text of the testimony, including any 
documentary evidence to be presented at the hearing. One copy must not 
be stapled or bound and must be suitable for copying. These materials 
must be provided to the Docket Office at the address above and be 
postmarked no later than June 14, 1999.
    Each such submission will be reviewed in light of the amount of 
time requested in the notice of intention to appear. If the information 
contained in the submission does not justify the amount of time 
requested, the Agency will allocate a more appropriate amount of time 
and notify the participant of that fact prior to the informal public 
hearing.
    Any party who has not substantially complied with this requirement 
may be limited to a 10 minute presentation, and may be requested to 
return for questioning at a later time.
    Any party who has not filed a notice of intention to appear may be 
allowed to testify for no more than 10 minutes as time permits, at the 
discretion of the Administrative Law Judge, but will not be allowed to 
question witnesses.
    Notices of intention to appear, testimony, and evidence will be 
available for copying at the Docket Office at the address noted above.

Conduct and Nature of the Hearing

    The hearing will commence at 9:30 a.m. on June 22, 1999. At that 
time, any procedural matters pertaining to the proceeding will be 
resolved.
    The nature of an informal rulemaking hearing is established in the 
legislative history of section 6 of the Occupational Safety and Health 
Act and is reflected in OSHA's rules of procedure for hearings (29 CFR 
1911.15(a)). Although the presiding officer is an Administrative Law 
Judge (ALJ), and limited questioning by persons who have filed notices 
of intention to appear is allowed on crucial issues, the proceeding is 
informal and legislative in type. OSHA hearings provide interested 
persons with an opportunity to make effective oral presentations, 
without procedural restraints that unnecessarily impede or protract the 
rulemaking process.
    Additionally, the hearing is primarily for information gathering 
and clarification. It is an informal administrative proceeding, rather 
than an adjudication. The technical rules of evidence, for example, do 
not apply. The regulations that govern OSHA hearings, combined with the 
pre-hearing guidelines that the ALJ will issue for this hearing, will 
ensure fairness and due process and also facilitate the development of 
a clear, accurate, and complete record. Questions of relevance, 
procedure, and participation generally will be decided in favor of the 
most effective development of the record.
    The hearing will be conducted in accordance with 29 CFR part 1911. 
It should be noted that Sec. 1911.4 specifies that the Assistant 
Secretary may, upon reasonable notice, issue alternative procedures to 
expedite proceedings or for other good cause.
    The hearing will be presided over by an Administrative Law Judge 
who makes no decision or recommendation on the merits of OSHA's 
proposal. The responsibility of the Administrative Law Judge is to 
ensure that the hearing proceeds at a reasonable pace and in an orderly 
manner. The Administrative Law Judge, therefore, will have all of the 
powers necessary and appropriate to conduct a full and fair informal 
hearing as provided in 29 CFR part 1911, including the powers:
    1. To regulate the course of the proceedings;
    2. To dispose of procedural requests, objections, and comparable 
matters;
    3. To confine the presentations to the matters pertinent to the 
issues raised;
    4. To regulate the conduct of those present at the hearing by 
appropriate means;
    5. At the Judge's discretion, to question and permit the 
questioning of any witness and to limit the time for questioning; and,
    6. At the Judge's discretion, to keep the record open for a 
reasonable, stated time (known as the post-hearing comment period) to 
receive written information and additional data, views, and arguments 
from any person who has participated in the oral proceedings.
    OSHA recognizes that there may be interested persons who, through 
their knowledge of safety or their experience in the subject matter of 
this proceeding, would wish to endorse or support certain provisions in 
the proposed standard. OSHA welcomes such supportive comments in order 
that the record of this rulemaking will present a balanced picture of 
the public response on the issues involved.

VIII. State-Plan States

    The 25 States and Territories with their own OSHA-approved 
occupational safety and health plans must revise their existing 
standards within six months of the publication date of the final 
standard or show OSHA why there is no need for action, e.g., because an 
existing State standard covering this area is already ``at least as 
effective'' as the revised Federal standard. These States are: Alaska, 
Arizona, California, Connecticut (State and local government employees 
only), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, 
Nevada, New Mexico, New York (State and local government employees 
only), North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, 
Utah, Vermont, Virginia, Virgin Islands, Washington, and Wyoming.

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

    This supplementary statement explains OSHA's interpretation that 
the general protective equipment standard, 29 CFR 1910.132(a), requires 
employers to provide protective equipment, including personal 
protective equipment, at no cost to employees, except for equipment 
that is personal in nature and normally used away from the worksite. 
(OSHA uses the abbreviation PPE to cover both protective equipment and 
personal protective equipment.) OSHA initially published this 
interpretation in an October 1994 memorandum to the field. In October 
1997, the Occupational Safety and Health Review Commission decided that 
the Secretary had not adequately explained the basis for her 
interpretation, in light of a perceived conflict between the 1994 
memorandum and interpretive statements made by OSHA officials in 
letters issued between 1974 and 1994. OSHA is including the following 
supplementary statement in this Notice of Proposed Rulemaking to set 
forth in detail the basis for its position on this important issue.

A. Background

    OSHA's general protective equipment standard, 29 CFR 1910.132 
states, in relevant part, as follows:

Section 1910.132 General Requirements

    (a) Application. Protective equipment, including personal 
protective equipment for eyes, face, head, and extremities, 
protective clothing, respiratory devices, and protective shields and 
barriers, shall be provided, used, and maintained in a sanitary and 
reliable condition wherever it is necessary by reason of hazards of 
processes or environment, chemical hazards, or mechanical irritants 
encountered in a manner capable of causing injury or impairment in 
the function of any part of the body through absorption, inhalation 
or physical contact.
    (b) Employee-owned equipment. Where employees provide their own 
protective equipment, the employer shall be responsible to assure 
its adequacy, including proper maintenance, and sanitation of such 
equipment.


[[Page 15433]]


    On October 18, 1994, Deputy Assistant Secretary James Stanley 
issued a memorandum to OSHA's regional administrators and heads of 
directorates announcing a uniform agency policy on employers' 
responsibility to pay for personal protective equipment under section 
1910.132 and other standards requiring employers to ``provide'' such 
equipment. The interpretation outlined in the Deputy Assistant 
Secretary's memorandum requires employers to pay for all personal 
protective equipment that is necessary for the employee to do his or 
her job safely and in compliance with OSHA standards, except for 
equipment that is personal in nature and normally used away from the 
worksite such as steel-toe safety shoes. OSHA subsequently issued a 
compliance directive, STD 1-6.6, incorporating this interpretation and 
stating that violations of the policy would be cited.
    In March 1996, OSHA issued a citation alleging that the Union Tank 
Car Company violated 29 CFR 1910.132(a) by requiring employees to pay 
for metatarsal safety shoes and welding gloves. Upon review, the 
Occupational Safety and Health Review Commission issued a decision 
vacating the citation. Secretary of Labor v. Union Tank Car Co., 18 
O.S.H. Cas. (BNA) 1067 (Rev. Comm. 1997). In Union Tank, the Commission 
stated that it had addressed the meaning of 29 CFR 1910.132 in The Budd 
Company, 1 O.S.H. Cas. (BNA) 1548 (Rev. Comm. 1974), and had concluded 
that the standard could not be interpreted to require employers to pay 
for personal protective equipment. 18 O.S.H. Cas. (BNA) at 1068. The 
Commission also noted that OSHA had issued at least five letters of 
interpretation between 1974 and 1994 stating that the standard does not 
specify who pays the cost of personal protective equipment. Id. 
Characterizing the Agency's approach in these letters as acquiescence 
in Budd, the Commission criticized OSHA for failing to provide an 
adequate explanation for the apparently new interpretation announced in 
the Stanley memorandum. The Commission noted that an agency changing 
its course ``must supply a reasoned analysis indicating that prior 
policies and standards were being deliberately changed, not casually 
ignored.'' Id. at 1069.
    The Secretary believes that requiring employers to pay for personal 
protective equipment that must be worn because of hazards in the 
workplace is central to the effective administration of the Act. While 
the Secretary believes that the interpretation announced in STD 1-6.6 
is faithful both to the standards' plain language and to the 
legislative intent, she is mindful of the Commission's concern that the 
Agency has not provided an adequate explanation of the basis for this 
interpretation. To address these concerns, this supplementary statement 
reviews the history of prior interpretive statements and explains in 
detail the linguistic and policy bases for requiring employers to pay 
for personal protective equipment.
    The following discussion is organized into two sections. Section 
II, below, explains the bases for the Secretary's interpretation, 
including the meaning of the word ``provide'' in the standard, the 
legislative intent that employers bear the costs of safety and health 
requirements, and the reasons why requiring employers to pay for 
personal protective equipment contributes in practical ways to 
increased safety protection for employees. Section III addresses the 
decisions issued by the Commission and the Third Circuit in Budd. The 
section examines in detail the separate rationales offered by the 
Commissioners in the case, and explains why those rationales (none of 
which commanded a Commission majority) are not Commission precedent, 
nor are they consistent with subsequent Federal and Commission case 
law. The section also addresses OSHA's prior statements regarding 
personal protective equipment and demonstrates that OSHA did not have a 
settled national policy on the standard's interpretation until 1994.

B. The Language and Purpose of the Standard, as Well as the Policy of 
the OSH Act, Support the Secretary's Construction

    The Secretary's interpretation of section 1910.132 is that the 
employer's duty to ``provide'' personal protective equipment when 
hazards dictate its use includes the obligation to pay for the 
equipment. See Borton, Inc. v. OSHRC, 734 F.2d 508, 510 (10th Cir. 
1984) (usual meaning of provide is ``to furnish, supply, or make 
available''). Accord, Usery v. Kennecott Copper Corp., 577 F.2d 1113, 
1119 (10th Cir. 1978); Secretary v. Baker Concrete Constr. Co., 17 
O.S.H. Cas. (BNA) 1236, 1239. These definitions strongly imply that 
what is to be ``provided'' is to be given without cost to the 
recipient.
    The Review Commission itself has found that ``provide'' includes 
the requirement to ``pay for'' under a standard closely analogous to 
section 1910.132. In Secretary of Labor v. Erie Coke Corp., 15 O.S.H. 
Cas. (BNA) 1561 (Rev. Comm. 1992), the Commission addressed the meaning 
of 29 CFR 1910.1029(h)(1), which requires employers to ``provide and 
assure the use of'' appropriate personal protective equipment for coke 
oven workers. The Commission held that the plain meaning of 
``provide,'' as well as other factors, supported the Secretary's 
interpretation that flame resistant gloves must be furnished at no 
charge. Id. at 1563 (the dictionary definitions ``suggest . . . that 
``provide'' encompasses more that merely making items available'').
    Courts have relied upon this meaning in holding that safety 
equipment and other items to be ``provided'' under analogous state and 
Federal regulations must be furnished at no charge. In Bendix Forest 
Prods. Corp. v. Division of Occupational Safety and Health, 600 P.2d 
1339 (Cal. 1979) (en banc), the California Supreme Court held that Cal/ 
OSHA standards requiring employers to ``furnish'' and ``provide'' 
safety devices precluded employers from charging employees for personal 
protective equipment. The Court found, inter alia, that ``a reasonable 
and ordinary interpretation of ``furnish'' . . . concomitantly requires 
the employer to pay for the safety equipment.'' Id. at 
1344.11 See also Nelson v. Thornburg, 567 F. Supp. 369, 379-
82 (E.D. Pa. 1983), aff'd, 732 F.2d 146 (3d Cir), cert. denied, 469 
U.S. 1188 (1985) (HHS regulations defining ``reasonable accommodation'' 
under section 504 of the Rehabilitation Act to include ``the provision 
of readers'' required employer to pay for readers to accommodate 
qualified blind employees, unless such costs would pose an undue 
burden).
---------------------------------------------------------------------------

    \11\  The words ``provide'' and ``furnish'' are often used 
interchangeably. Webster's Third New Int'l Dictionary, id.
---------------------------------------------------------------------------

    The Secretary's construction that employers are responsible for the 
cost of personal protective equipment finds further support in the 
language and purpose of the OSH Act. A central principle embodied in 
the Act is that the fundamental duty of ensuring safe working 
conditions is to be borne by employers, not employees. Early in the 
Act's development, Federal appellate courts established that section 
5(a), 29 U.S.C. 654(a), allocates to employers sole legal 
responsibility for achieving compliance with safety and health 
standards.12 Atlantic & Gulf Stevedores v. OSHRC, 534 F.2d 
541, 553 (3d Cir. 1976); United Steelworkers of America v. Marshall, 
647 F.2d 1189, 1231 (D.C. Cir. 1980). These courts concluded that 
although section 5(b) nominally refers to

[[Page 15434]]

duties of employees as well as employers, the Act's substantive 
requirements and enforcement scheme 13 are directed only at 
---------------------------------------------------------------------------
employers. Accordingly, the statute's reference to employee duties is:

    \12\ Section 5(a)(2) of the Act provides, in relevant part, that 
``[each employer shall comply with occupational safety and health 
standards . . . issued pursuant to this Act.'' 29 U.S.C. 654(a)(2).
    \13\ Sections 9(a) and 10(a) provide for the issuance of 
citations and notifications of proposed penalties only to employers. 
29 U.S.C. 658(a), 659(a). Similarly, section 10(a) refers only to 
employer contests of citations and proposed penalties. While 
employees may intervene in proceedings initiated by the employer, 
the only independent right granted employees is to contest the 
reasonableness of any time period fixed by the Secretary for 
abatement of a violation. 29 U.S.C. 659(c). Section 17 provides for 
the assessment of civil monetary penalties only against employers. 
29 U.S.C. 666. See Atlantic & Gulf Stevedores, 534 F.2d at 553.
---------------------------------------------------------------------------

essentially an exhortation to employees to cooperate in the 
standards and is not meant to diminish in any way the employer's 
compliance responsibilities or his responsibility to assure 
compliance by his own employees. Final responsibility for compliance 
with the requirements of this Act remains with the employer.

United Steelworkers, 647 F.2d at 1231. See also Atlantic & Gulf 
Stevedores, 534 F.2d at 553 (the Act's reference to employee duties in 
section 5(b) is ``essentially devoid of content'').
    The legislative history demonstrates that employers' compliance 
responsibilities include the obligation to pay for devices and work 
practices necessary to render workplaces safe. The Supreme Court found 
that the legislative history:

shows that Congress understood that the Act would create substantial 
costs for employers, yet intended to impose such costs when 
necessary to create a safe and healthful working environment. 
Congress viewed the costs of health and safety as a cost of doing 
business. Senator Yarborough, a cosponsor of the [Act], stated: ``We 
know the costs would be put into consumer goods but that is the 
price we should pay for the 80 million workers in America . . . 
Senator Eagleton commented that ``[t]he costs that will be incurred 
by employers in meeting the standards of health and safety to be 
established under this bill are, in my view, reasonable and 
necessary costs of doing business.'' Other Members of Congress 
voiced similar views.

American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 519-521 
(1980) (ATMI) (internal citations omitted, original emphasis). See also 
Forging Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436, 1451 (4th 
Cir. 1985) (en banc) (in view of Supreme Court's ``clear statement'' in 
ATMI that Congress intended employers to bear the costs of safety and 
health, OSHA may logically require employers to bear the costs of 
hearing protectors under the hearing conservation standard).
    The D.C. Circuit also found persuasive indications of Congress's 
intent to have employers bear general financial responsibility under 
the Act. It noted that the report of the Senate subcommittee from which 
the statute emerged stressed the need to place the cost of standards on 
employers:

many employers--particularly smaller ones--simply cannot make the 
necessary investment in health and safety and survive competitively, 
unless all are compelled to do so. The competitive disadvantage of 
the more conscientious employer is especially evident where there is 
a long period between exposure to a hazard and manifestation of an 
illness. In such instances a particular employer has no economic 
incentive to invest in current precautions, not even in the 
reduction of workmen's compensation costs, because he will seldom 
have to pay for the consequences of his own neglect.

United Steelworkers, 647 F.2d at 1231 (quoting S. Rep. No. 91-1282, 
91st Cong. 2d Sess. 4 (1970), reprinted in, Senate Comm. on Labor and 
Public Welfare, 92nd Cong. 1st Sess., Legislative History of the 
Occupational Safety and Health Act of 1970, at 144). See also 
Legislative History at 444, 1150.
    Conspicuously absent from the legislative history is any indication 
from Congress that compliance costs should be borne by employees. 
Indeed, it is reasonably implicit in the statutory scheme that Congress 
sought to maintain the standard of living of working men and women and 
did not contemplate that employees' pay and benefits would be 
sacrificed to achieve safe and healthful workplaces. For example, the 
Senate report notes that employers are bound by the ``general and 
common duty to bring no adverse effects to the life and health of their 
employees throughout the course of their employment. Employers have 
primary control of the work environment and should ensure that it is 
safe and healthful.'' Legislative History at 149.
    In view of the OSH Act's structure and history, there is no serious 
dispute that employers must pay for engineering controls necessary to 
reduce exposures to toxic substances. See, e.g. Budd, 1 O.S.H. Cas. 
(BNA) at 1550, n.5. In the Secretary's view, there is no principled 
distinction between engineering controls, which employers undoubtedly 
must pay for, and the personal protective equipment for which payment 
is required under STD 1-6.6.14 OSHA addressed this issue in 
rulemaking on the Cancer Policy in 1980 and found no distinction, for 
payment purposes, between engineering controls and personal protective 
equipment necessary to protect employees from exposure to carcinogenic 
substances. OSHA stated:

    \14\ OSHA recognizes that safety-toe shoes do possess special 
characteristics which distinguish them from other types of personal 
protective equipment for cost-allocation purposes. See, e.g., Budd, 
1 O.S.H. Cas. (BNA) at 1550 (distinguishing safety shoes, which are 
uniquely personal in nature and used away from work, from capital 
equipment, which employers ordinarily pay for).
---------------------------------------------------------------------------

    [T]he requirement that employers pay for protective equipment is 
a logical corollary of the accepted proposition that the employer 
must pay for the institution of required engineering and work 
practice controls. To the extent that protective equipment, like 
engineering controls, is intended also to protect against . . . 
contamination, employers logically must pick up the expense. There 
is no rational basis for distinguishing . . . personal protective 
equipment [from engineering controls] The goal, in each case, is 
employee protection; consequently, the responsibility of paying for 
the protection should, in each case rest on the employer.

45 FR 5261 (January 22, 1980).15
---------------------------------------------------------------------------

    \15\ OSHA's approach to payment for PPE under health and safety 
standards is discussed in detail above.
---------------------------------------------------------------------------

    OSHA has further determined, in rulemakings addressing specific 
hazards, that placing payment responsibility on the employer best 
carries out the Act's purpose of fostering employee safety. 29 U.S.C. 
651(b). Requiring employers to pay for personal protective equipment 
contributes to increased health and safety protection in several 
practical ways. The employer is most knowledgeable about hazards 
existing in the workplace and is therefore best able to select and 
maintain appropriate protective equipment. Requiring employers to 
purchase personal protective equipment ensures that they retain control 
over the selection, issuance, maintenance and use of the devices. See 
43 FR 19619 (May 5, 1978) (preamble to final rule on inorganic 
arsenic); 46 FR 4153 (January 16, 1981) (hearing conservation 
preamble). Shifting the financial burden to employees, on the other 
hand, ``risks losing the necessary control over the organized and 
consistent selection, issuance, maintenance and use of such 
equipment.'' 46 FR 4153.
    Employer payment for protective equipment also contributes to 
improved health and safety by removing economic disincentives to 
cooperation by employees. In promulgating requirements for medical 
surveillance and medical removal protection (MRP) for some health 
standards, OSHA found that employees would be reluctant voluntarily to 
cooperate in such programs if they believed that they would suffer a 
loss of income as a result. See, e.g., 43 FR 54442-54449 (November 21, 
1978) (attachments to lead

[[Page 15435]]

preamble). See also United Steelworkers of America, 647 F.2d at 1230-
12377 (finding lead standard's MRP provisions to be authorized under 
the statute and reasonable). OSHA has also required employers to 
provide medical examinations without cost to the employee in part to 
ensure employee cooperation in taking the exams. 43 FR 19624 (May 5, 
1978) (preamble to inorganic arsenic standard). See also Secretary of 
Labor v. Phelps Dodge Corp., 11 O.S.H. Cas. (BNA) 1441, 1443 (Rev. 
Comm. 1983) (noting ALJ's finding that when employees were required to 
provide their own transportation to and from the hospital and to 
sacrifice their personal time to take medical examinations for arsenic 
exposure, 42% of them failed to participate in the medical surveillance 
program).
    OSHA considers that this evidence, which shows that employees make 
decisions that risk their health and safety to avoid suffering economic 
loss is relevant to the issue of payment for personal protective 
equipment. It is certainly reasonable to believe that employees who are 
furnished personal protective equipment at no charge are more strongly 
motivated to wear the devices, and to replace them when they wear out 
or are damaged, than are employees who must purchase these devices. In 
the Union Tank case, the employee representative presented an affidavit 
that some employees taped or wrapped wire around their damaged 
metatarsal safety boots in order to avoid having to pay up to $130 per 
pair to replace them. Similarly, in Ormet Primary Aluminum Corp., OSHRC 
No. 96-0470, an employee testified that he continued to wear safety 
boots though the protective steel toes were exposed and posed an 
electrocution hazard because he could not afford a new pair. The 
employee also testified that some workers put a cement-like substance 
over the steel toes of their boots when the leather covering wore away, 
but that this practice was hazardous because the substance was 
flammable. Thus, the policy outlined in STD 1-6.6 is not only 
consistent with the plain meaning of the standard's text, it is 
supported by the statutory context and by significant practical safety 
considerations.

C. The Interpretation of Sec. 1910.132 Announced in STD 1-6.6 is 
Supported by Better Reasoned Authority and Reflected OSHA's Initial 
Determination on an Appropriate National Policy Regarding Payment for 
Personal Protective Equipment Under the Standard

1. Introduction
    This section addresses the grounds relied upon by the Commission in 
Union Tank for rejecting the Secretary's interpretation that section 
1910.132(a) requires employers to pay for most types of personal 
protective equipment. The Commission first stated that in Budd it had 
determined that ``provide'' in section 1910.132(a) could not be 
interpreted to mean ``pay for.'' 18 O.S.H. Cas. (BNA) at 1068. The 
Commission then stated that OSHA had, for twenty years, acquiesced in 
the interpretation of the standard announced in Budd. Id. at 1069. The 
Commission held that the Secretary's ``new interpretation'' of section 
1910.132(a) announced in 1994 was unreasonable because it represented a 
change in policy without adequate explanation. Id. This holding was 
based on five letters of interpretation issued from 1976 to 1993 
stating that the standard does not specify who pays for personal 
protective equipment.
    The following sections address the Budd decisions, as well as other 
relevant precedent, and explain in detail why Budd did not announce an 
authoritative interpretation of section 1910.132(a). The sections also 
address the agency's prior approaches to the cost allocation issue.
    During the period from 1974 through October 1994, OSHA made a 
variety of statements on the question of employer payment for personal 
protective equipment. OSHA concedes that the statements of some agency 
officials during this period are inconsistent with the interpretation 
outlined in STD 1-6.6. However, these letters do not amount to an 
authoritative agency interpretation that employers are not required to 
pay for personal protective equipment. During the period from 1978 
through 1994, OSHA promulgated health standards, pursuant to section 
6(b) of the OSH Act, requiring employers to pay for personal protective 
equipment. In these standards, OSHA interpreted the Act to require 
employers to pay for personal protective equipment to the same extent 
that they would be required to pay for engineering controls. 
Furthermore, during the relevant time period some OSHA officials 
interpreted section 1910.132 to require employers to pay for personal 
protective equipment, other than safety shoes, and one court of appeals 
noted that the Act's legislative history supported this interpretation. 
Considered as a whole, OSHA's actions during the period from 1974-1994 
cannot reasonably be viewed as reflecting an official agency 
interpretation contrary to STD 1-6.6.
2. The Commission's Budd Decision
    The Commission's decision in Budd arose from a citation alleging 
that the employer violated 29 CFR 1910.132(a) by failing to provide 
safety-toe shoes to its employees. Prior to the hearing, the employer 
moved to withdraw its notice of contest on the understanding that its 
obligation to provide safety shoes did not include the requirement to 
pay for them. The Secretary agreed that the employer was not required 
to pay for the shoes because of their special characteristic, as noted 
below; however, the union representing the employees objected on the 
ground that the standard required employer payment. The issue presented 
to the Commission was whether the employer's motion should be granted.
    The Secretary stressed the special characteristics of safety shoes, 
including their use away from work, as the rationale for not requiring 
employers to pay for this specific type of protective equipment. In her 
brief in Budd, the Secretary stated that:

by tradition, in this country shoes are considered unique items of a 
personal nature. Safety shoes are purchased by size, are available 
in a variety of styles, and are frequently worn off the job, both 
for formal and casual wear. Furthermore, it is neither feasible for 
a different employee to wear the shoes each day nor feasible that 
upon resigning from the position an employee will leave the shoes 
behind to be worn by another individual.

See Brief of the Secretary, served January 10, 1973, at 8. However, the 
Secretary emphasized that an interpretation requiring employers 
generally to provide personal protective equipment free of charge would 
be consistent with the statutory scheme. She noted that such an 
interpretation could improve safety and health by giving employees 
greater incentive to use personal protective equipment. Id. at 9. She 
also noted that the Act's legislative history demonstrated Congress's 
intent to place the costs of achieving safe and healthful workplaces 
upon employers. Id. at 10. The Secretary concluded that ``[p]ersonal 
protective equipment cannot be segregated from equipment necessary to 
provide proper working conditions and therefore the purchase of such 
equipment by the employer was contemplated by the Act

[[Page 15436]]

in cases where a standard might require it.'' Id. at 10-11.
    The Commission held that the employer's motion should be granted 
because section 1910.132(a) could not be interpreted to require the 
employer to pay for safety shoes. However, the Commission did not 
announce a majority rationale for this conclusion. Commissioners Van 
Namee and Cleary authored separate opinions explaining their different 
reasoning, while Commissioner Moran concurred in the determination on 
the motion without stating a rationale.16
---------------------------------------------------------------------------

    \16\ Commissioner Moran joined the majority on the question of 
the disposition of the employer's motion to withdraw its notice of 
contest relating to 29 CFR 1910.132. He dissented from the 
Commission's decision on another cited violation, not relevant here.
---------------------------------------------------------------------------

    Commissioner Van Namee reasoned that it would be anomalous to read 
section 1910.132(a) to require employers to provide or pay for personal 
protective equipment in light of the wording of section 1910.132(b), 
which contemplates the use of employee-provided equipment. 1 O.S.H. 
Cas. (BNA) at 1549, 1550. In the Commissioner's view, such a 
construction would render paragraph (b) meaningless. Id. at 1550. Thus, 
he interpreted section 1910.132(a) to mean that ``where personal 
equipment is necessary, the employer shall ensure that it is used. If 
[the employer] provides such equipment, he is responsible for ensuring 
that it is `provided, used and maintained in a sanitary and reliable 
condition.' '' Id.
    Commissioner Van Namee found support for his interpretation of 
section 1910.132(a) in the OSH Act's purpose of achieving safe 
workplaces, a purpose he believed to be unrelated to the question of 
payment. He stated that ``[p]rescription of cost allocations is not 
essential to the effectuation of the Act's objectives. It is irrelevant 
for purposes of the Act who provides and pays for the equipment. Either 
employer or employee provision is consistent with the purpose of the 
Act.'' Id. Commissioner Van Namee also noted that the steel-toed safety 
shoes at issue were ``uniquely personal'' and could be used by 
employees away from the workplace. Id., n. 5.
    Commissioner Cleary concurred in the determination on a different 
basis. He concluded that section 1910.132(a) does impose a duty upon an 
employer to provide directly or indirectly the required personal 
protective equipment. Id. at 1552. He found that this reading was not 
inconsistent with the text of paragraph (b), because paragraph (b) 
imposes no duty upon employees to furnish the equipment. ``Rather,'' 
Commissioner Cleary wrote, ``what paragraph (b) seems to recognize is 
that equipment which is owned by employees may sometimes be used by the 
employees themselves . . . . When this occurs, the paragraph 
establishes a duty upon the employer to assure its adequacy. Under its 
express terms, paragraph (b) does not require employees to provide the 
equipment in the first instance.'' Id.
    Commissioner Cleary found that the OSH Act ``clearly contemplates 
that an employer will generally assume the costs of complying with its 
terms.'' Id. However, he concluded that the Commission lacked 
jurisdiction to provide relief as to costs in the Budd case because 
section 1910.132 did not, by its express terms, require employers to 
assume the costs of personal protective equipment. Id. In the 
Commissioner's view, the Commission lacked authority, in a proceeding 
to enforce a citation, to interpret the standard to require payment. 
Id. At the same time, the Commissioner noted that other relief might be 
available. He suggested that an employer's policy of requiring 
employees to pay for personal protective equipment could, in some 
cases, constitute a violation of section 11(c) of the OSH Act, which is 
enforced through actions in Federal district court. Id. at 1553.
3. The Court of Appeals' Affirmance
    The Commission's decision was affirmed on appeal in Budd v. OSHRC, 
513 F.2d 201 (3d Cir. 1975). The court found that the interpretation 
reached by the Commission and the Secretary that 29 CFR 1910.132 does 
not require employers to pay for safety-toe footwear was reasonable. 
513 F.2d at 205. The court expressly reserved judgment on whether 
employers could be required to pay for other types of protective 
equipment. Id.
    As support for affirmance of the Commission's order, the court 
found the joint position not inconsistent with the statutory scheme. 
The panel noted that Congress did not expressly require that the 
employer pay for protective equipment, and, in apparent agreement with 
Commissioner Van Namee's view, observed that ``[t]his Act, unlike such 
legislation as the Fair Labor Standards Act, is not concerned with 
wages and hours, but rather with reducing the incidence of job-related 
injuries.'' Id. at 206. The court also found the joint position 
reasonable in light of the standard's language. It noted that the verbs 
``provided, used and maintained'' in section 1910.132(a) are phrased in 
the passive voice without specifying whether the employer or the 
employee is to perform these functions, and that section 1910.132(b) 
contemplates that employees will provide some protective equipment. Id.
    In sum, in Budd, the Secretary, the Commission and the Third 
Circuit agreed that 29 CFR 1910.132 does not require employers to pay 
for safety-toe shoes. However, neither the Commission decision nor the 
court decision is an authoritative interpretation of the standard as it 
applies to other types of personal protective equipment. In Union Tank, 
the Commission referred to Commissioner Van Namee's rationale as the 
Commission's holding on the meaning of section 1910.132(a). 18 O.S.H. 
Cas. (BNA) at 1068 (stating that, in Budd, ``the Commission held that 
to read subpart (a) as requiring the employer to provide protective 
equipment would negate subpart (b), which contemplates the use of 
employee provided equipment''). This characterization is substantially 
flawed because no one opinion in Budd can be said to represent the 
Commission's official view. See Atlantic Gulf & Stevedores v. OSHRC, 
534 F.2d at 546 (where Commission order affirms citation but each 
Commissioner files a separate opinion announcing a different rationale, 
no one opinion represents Commission consensus).
    In sum, four different approaches to the payment issue emerged from 
the Budd litigation: (1) Employers should not be required to pay for 
personal protective equipment that is uniquely personal in nature and 
usable off the worksite, but may be required to pay for other types of 
PPE (the Secretary's position); (2) the OSH Act is indifferent to the 
question of who pays for personal protective equipment (the view of 
Commissioner Van Namee, supported by the court of appeals at least for 
safety shoes); (3) section 1910.132(a) cannot be interpreted to require 
employers to pay for personal protective equipment in light of the 
language of section 1910.132(b) (the view of Commissioner Van Namee); 
and (4) section 1910.132(a) cannot be interpreted to require employers 
to pay because it does not say so expressly (Commissioner Cleary's 
view).
4. OSHA's Interpretive Statements
    From 1974 through 1994, OSHA embraced a variety of approaches to 
the issue of employer payment for personal protective equipment. In its 
most formal statements on the issue, made in the context of rulemaking 
proceedings on a broad spectrum of health hazards, OSHA determined that 
the Act generally contemplates employer payment of the

[[Page 15437]]

costs of safety and health, including personal protective equipment. 
OSHA's determinations on employers' responsibility to pay for personal 
protective equipment, made on the record in rulemakings for specific 
standards, are discussed infra. Similarly, OSHA issued an Interpretive 
Instruction stating that under 29 CFR 1910.1029 (h)(1), personal 
protective equipment for coke oven workers must be furnished by 
employers at no charge. See Erie Coke Corp., 15 O.S.H. Cas. (BNA) at 
1563 (citing STD 1-6.4 (March 12, 1979)).
    Prior to 1994, OSHA did not publish enforcement guidance on section 
1910.132 in the Field Operations Manual or by interpretive memorandum. 
In some letters responding to requests for information, however, agency 
officials suggested that Budd foreclosed an interpretation of section 
1910.132, or of OSHA personal protective equipment standards generally, 
requiring employers to pay for personal protective equipment. In other 
letters, OSHA noted that the standards do not specifically allocate the 
cost of such equipment to employers, and suggested that the issue be 
resolved through collective bargaining, where appropriate. Typical of 
this viewpoint is the September 2, 1976 letter to Adlai E. Stevenson 
quoted by the Commission in Union Tank.
    On the other hand, OSHA continued at times to enforce the standard 
to require employers to pay for personal protective equipment. In 
September 1990, OSHA issued a citation to a meatpacking firm alleging 
that it violated section 1910.132(a) by charging its employees for 
repair or replacement of steel mesh gloves and plastic wrist bands used 
for protection against knife cuts.17 A July 17, 1990 agency 
memorandum stated that although section 1910.132(a) does not 
specifically allocate the costs of personal protective equipment to 
employers, ``it is our position that the employer is obligated to pay 
for PPE which is not worn off the worksite. This includes welding 
gloves, but not safety shoes . . .'' 18 A May 20, 1994 
agency letter responding to a request for information on OSHA's 
enforcement policy stated that the interpretation outlined in the 
agency's July 1990 memorandum ``is still in effect.''
---------------------------------------------------------------------------

    \17\ The citation was not contested, and thus became a final 
order of the Commission by operation of law. 29 U.S.C. 659(a).
    \18\ OSHA's issuance of the citation under section 1910.132(a) 
was in step with the agency's approach under other standards that do 
not expressly require employers to pay for personal protective 
equipment. In 1979, OSHA issued an interpretive Instruction 
clarifying that 29 CFR 1910.1029(h)(1), which states that the 
employer ``shall provide'' protective clothing and equipment, 
including flame resistant gloves, for coke oven workers, requires 
that this equipment be furnished at no cost to employees. OSHA 
Instruction STD 1-6.4 (March 12, 1979).
---------------------------------------------------------------------------

    Deputy Assistant Secretary Stanley's memorandum of October 1994 and 
the subsequent compliance directive STD 1-6.6 were intended to 
harmonize the different approaches to the question of employer 
responsibility for the costs of personal protective equipment. In 
requiring employers to pay for all except uniquely personal equipment, 
used off the worksite, the directive did not break new ground. Rather, 
the interpretation enunciated in the directive closely paralleled the 
interpretation in the July 1990 memorandum and the position taken in 
the Secretary's brief in Budd. This policy also reflected OSHA's formal 
position in rulemaking proceedings under section 6(b) that personal 
protective equipment, like engineering controls, must be paid for by 
employers unless special circumstances make it appropriate for 
employees to provide their own equipment. In stating that the matter of 
payment for items such as safety shoes and prescription eyewear may be 
left to negotiation, the Stanley memorandum recognizes the unfairness 
of requiring employers to pay for items of equipment that are normally 
used away from work, are purchased to fit particular employees, and are 
not, as a practical matter, reusable by other employees.
5. Why OSHA rejects the positions of Commissioners Van Namee and Cleary 
on the interpretation of section 1910.132 as it applies to PPE other 
than safety-toe shoes and prescription safety eyewear
    The preceding discussion establishes two points of central 
importance in addressing the Commission's analysis in Union Tank. 
First, the Commission did not reach a consensus in Budd on the 
interpretation to be given section 1910.132(a) regarding payment for 
personal protective equipment other than safety shoes. The 
interpretation relied upon in Union Tank as the ``holding'' in Budd is, 
in fact, no more than the view of a single Commissioner. Second, the 
interpretation announced in STD 1-6.6 was not a wholly new policy, nor 
was it a change in OSHA's national policy since 1994. The statements in 
the agency letters relied upon by the Commission reflected the views of 
some officials that are at odds with the agency's positions taken (a) 
in rulemaking proceedings under the Act; (b) in its brief to the 
Commission in Budd; and (c) in a 1990 contested enforcement action 
before the Commission. Viewed in this context, the interpretation 
announced in the Deputy Assistant Secretary's memorandum, and formally 
published in STD 1-6.6, is OSHA's national policy, not a change in such 
policy.
    The following sections examine the interpretive views expressed by 
the individual Commissioners in Budd. In light of the case law and 
other developments since Budd, the Secretary believes that the position 
she outlined in her Commission brief--that employers should not be 
required to pay for equipment that is uniquely personal in nature and 
usable off of the job--remains the only viable basis for the 
disposition of that case. To the extent that the positions outlined in 
the concurring opinions support an interpretation that section 1910.132 
does not require employers to pay for any type of personal protective 
equipment, they are inconsistent with subsequent Federal court and 
Commission case law.
    a. The Act is not indifferent to cost-allocation. Commissioner Van 
Namee's position that the OSH Act is indifferent to the question of who 
pays for equipment mandated by OSHA standards has been rejected by 
subsequent court and Commission decisions. That position ignores the 
extensive legislative history of the Act, discussed above, indicating 
Congress's intent to place fiscal responsibility for the safety of 
employees on industry, which can pass the costs to consumers. Based on 
this history, OSHA has promulgated numerous standards under section 
6(b) of the Act, mandating that employers pay for protective devices 
and other requirements necessary for safety and health.
    The lead standard (29 CFR 1910.1025), promulgated in 1978, clearly 
stated the principle that employers should bear the costs of 
requirements necessary to achievement of healthful working conditions. 
The standard requires that an employer who removes employees from their 
jobs because of high blood-lead levels must maintain the workers' 
earnings and seniority rights during removal for up to eighteen months. 
29 CFR 1910.1025(k). The standard also requires employers to provide, 
at no charge to employees, respirators and protective clothing. 29 CFR 
1910.1025 (f), (g). In the preamble to the Medical Removal Protection 
(MRP) provision, OSHA explained its determination that compliance costs 
were properly allocable to employers under the Act.
    OSHA has determined that the foregoing costs should be borne by 
employers in the first instance . . . MRP is meant to place those 
costs of worker protection directly on the industry at large rather 
than on the

[[Page 15438]]

shoulders of individual workers unfortunate enough to be at risk of 
material impairment to health due to occupational exposure to lead. 
The costs of protecting worker health are appropriate costs of doing 
business, thus employers should properly bear the economic impact of 
temporary medical removals. The [OSH] Act . . . recognized that the 
costs which consumers pay for goods should reflect all costs of 
production, including costs associated with preventing . . . 
occupational disease. Under the Act, employers have the primary 
obligation to provide a safe and healthful work experience, [and] 
thus should incur the costs necessary to satisfy this obligation.

(43 FR 54449/3).
    Beginning in 1978, OSHA determined that the costs of personal 
protective equipment necessary to guard employees against exposure to 
toxic substances should be paid for by employers. The standard on 
Inorganic Arsenic requires employers to pay for respirators, protective 
clothing and protective equipment, including gloves, shoes, and face 
shields or goggles. 29 CFR 1910.1018(j)(1). The preamble to the rule 
states that:

the obligation is on the employer to provide protective equipment at 
no cost to the employee. In this way the employer is in the best 
position to provide the correct type of equipment and keep it in 
repair. Also, as the employer has permitted exposures to exceed the 
permissible exposure limits, the obligation properly rests on the 
employer.

43 FR 19619 (May 5, 1978). OSHA applied the same reasoning in requiring 
employers to pay for respirators when necessary to protect employees 
from exposure to cotton dust. 43 FR 27387/2 (June 23, 1978) (preamble 
to final rule on occupational exposure to cotton dust). The Cotton Dust 
preamble notes that the language requiring employers to provide 
respirators `` `at no cost to the employee' . . . makes explicit the 
position which has long been implicit in all OSHA health standard 
proceedings under section 6(b) of the Act'' Id. OSHA expressed a 
similar view in the preamble for the 1,2-Dibromo-3-chloropropane (DBCP) 
standard. 43 FR 11523/3 (March 17, 1978).
    In the following decades, OSHA has expanded its justification for 
explicitly requiring employers to bear the costs of necessary 
protective devices. In the preamble to the hearing conservation 
standard, OSHA determined that employers should pay for hearing 
protectors based in part on a commenter's statement that ``where 
personal protective equipment is necessary to afford [a safe and 
healthful working] environment, it is . . . almost universally accepted 
that its purchase is the responsibility of the employer.'' 46 FR 4153 
(January 16, 1981). The preamble also noted that permitting an employer 
to charge employees for hearing protectors could discourage the use of 
such devices and thereby undermine the effectiveness of the employer's 
hearing conservation programs. Id.
    The formaldehyde standard, promulgated in 1987, expressly linked 
the question of payment for personal protective equipment and the 
employer's duty to ``provide'' such equipment under 29 CFR 1910.132. 
The formaldehyde standard requires employers to comply with 29 CFR 
1910.132 and 1910.133 and specifies that the appropriate protective 
equipment is to be provided at no cost to the employee. 29 CFR 
1910.148(h). The preamble to the formaldehyde standard stated that the 
standard ``reminds all employers of their obligation to comply with . . 
. 29 CFR 1910.132 . . . and requires the employer to provide such 
clothing or equipment at no cost to the employee.'' 52 FR 46269/1 
(December 4, 1987).
    By 1991, OSHA's policy was firmly established. In the bloodborne 
pathogens standard, the Agency justified the requirement that employers 
pay for various items of specialized equipment necessary to protect 
health care workers from exposure to blood or other potentially 
infectious materials. The preamble states that:

[i]t has been the Agency's longstanding policy to hold the employer 
responsible for controlling exposure to hazards in his or her 
workplace and to fulfill this responsibility at no cost to the 
employee. Therefore, the financial burden for purchasing and 
providing personal protective equipment rests upon the employer just 
as it does for all other control measures (e.g., engineering 
controls).

56 FR 64125/1 (December 6, 1991) (emphasis added).
    This policy has been carried forward to the present. OSHA's 
standards for methylenedianiline, 29 CFR 1910.1050(h)(2)(i), (i)(1); 
cadmium, 29 CFR 1910.1027(g)(1), (i)(1); 1,3 butadiene, 29 CFR 
1910.1051(h)(1), (i); and methylene chloride, 29 CFR 1910.1052(g)(1), 
(h)(1), promulgated between 1992 and 1997, all require employers to pay 
for respirators, protective clothing and personal protective equipment 
when such devices are necessary. OSHA's new Respiratory Protection 
standard, promulgated January 8, 1988, also requires employers to 
provide respirators, as well as training and medical evaluations, at no 
cost to the employees. 63 FR 1271 (January 8, 1988).
    While OSHA has generally required employers to pay for all types of 
personal protective equipment, it has recognized an exception to the 
policy in certain circumstances. In the safety standard on logging 
operations, promulgated shortly before issuance of the Deputy Assistant 
Secretary's memorandum in October 1994, OSHA determined that logging 
employers should pay for protective equipment for the head, eyes, face, 
hands, and legs, but should not be required to pay for logging boots. 
OSHA excepted logging boots from among the types of equipment that 
employers must purchase for three reasons. First, the Agency found that 
the logging industry is highly transient and that logging boots, unlike 
other types of personal protective equipment, are not reusable. 
Therefore, OSHA concluded, ``employers would have to purchase non-
reusable logging boots costing $200 to $400 many times a year for 
newly-hired employees, even though there is a significant likelihood 
that these employees will remain in the job for only a short time.'' 59 
FR 51684 (October 12, 1994).
    OSHA also found that logging employees tend to move from one 
establishment to another, taking their logging boots with them as tools 
of the trade. OSHA noted that logging boots are readily portable, and, 
unlike head and leg protection, are sized to fit a particular employee. 
OSHA found that it was appropriate to allow employees to follow the 
established custom of taking their boots with them from job to job 
rather than requiring employers to provide logging boots. Id.
    Finally, the Agency noted that there was evidence in the record 
that employees use their logging boots away from work, for such 
activities as hunting and cutting their own wood, and that there was 
not comparable evidence that employees also use other types of 
protective equipment off-site. Id. For all of these reasons, OSHA 
decided not to require employers to purchase logging boots. However, it 
found no basis to depart from its ``long established policy'' regarding 
the costs of other items of required personal protective equipment. Id.
    Federal appellate courts have upheld OSHA's statutory authority to 
impose on employers the costs of requirements reasonably necessary for 
safe and healthful workplaces. In United Steelworkers of America, the 
D.C. Circuit upheld OSHA's authority to charge employers with the costs 
of MRP, finding that ``the scheme of the statute, manifest in both the 
express language and the legislative history, appears to

[[Page 15439]]

permit OSHA to charge to employers the cost of any new means it devises 
to protect workers'' 647 F.2d at 1231. The United Steelworkers court 
noted that the Third Circuit's decision in Budd should be confined to 
its facts, stating ``[t]he court [in Budd] stressed the special 
character of protective devices which the employee would wear off-the-
job as well as on-the-job and made clear it was expressing no opinion 
on the proper party to be charged for other devices and methods. 
Moreover, the court there failed to address the relevant parts of the 
legislative history.'' 647 F.2d at 1231-1232, n.66.
    The Fourth Circuit upheld the hearing conservation standard's 
allocation of the costs of hearing protectors to employers in Forging 
Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436, 1451 (4th Cir. 1985) 
(en banc). The Forging Indus. court noted that in view of the Supreme 
Court's finding in ATMI that Congress intended to impose compliance 
costs on employers, ``it is only logical that OSHA may require 
employers to absorb such costs.'' 773 F.2d at 1451.
    The Commission itself has squarely rejected the view that the Act 
is indifferent to cost allocation in Erie Coke Corp., discussed supra, 
at p.4. In Erie Coke, the commission upheld the reasonableness of the 
Secretary's construction that the coke oven emissions standard at 29 
CFR 1910.1029(h)(1)(ii) required employers to pay for flame resistant 
gloves. In doing so, the Commission addressed the legislative history 
and court precedent establishing that Congress intended employers to 
bear the costs of compliance with standards. The Commission stated: 
``[w]e agree with these courts of appeals that, based on the 
legislative history, Congress intended that the cost of compliance with 
OSHA would be uniformly reflected in the price of goods and services, 
so as not to place the safety-conscious employer at a competitive 
disadvantage.'' 15 O.S.H. Cas. (BNA) at 1565. Thus, Commissioner Van 
Namee's view that it is irrelevant under the Act whether employers or 
employees pay for protective devices finds no support in the statute 
and has been rejected by subsequent court and Commission case law.
    b. Neither the language of section 1910.132(b), nor the use of the 
passive voice in section 1910.132(a) poses interpretive difficulties. 
The view of Commissioner Van Namee that section 1910.132(a) cannot be 
interpreted to require employers to ``provide'' personal protective 
equipment because section 1910.132(b) contemplates the use of employee-
owned equipment, is similarly unsupported. If Commissioner Van Namee 
were correct that reading section 1910.132(a) to require employers to 
provide protective equipment would render section 1910.132(b) 
superfluous, it could only be because section 1910.132(b) itself 
imposes some duty upon employees to provide their own protective 
equipment. See 1 O.S.H. Cas. (BNA) at 1550. However, section 
1910.132(b), by its terms, does not require employees to ``provide'' 
anything. As Commissioner Cleary correctly noted, section 1910.132(b)'s 
introductory phrase ``where employees provide their own protective 
equipment . . .'' is to be read, not as imposing a duty upon employees 
to furnish equipment, but rather, as recognizing that employees may 
sometimes wish to use their own equipment. See 1 O.S.H. Cas. (BNA) at 
1552. Such use might occur, for example, if employee-owned equipment is 
more comfortable or provides a greater degree of protection than would 
be afforded by employer-provided equipment.19 Thus read, in 
accordance with its terms, section 1910.132(b) poses no conflict with a 
reading of section 1910.132(a) that requires employers to provide 
personal protective equipment.
---------------------------------------------------------------------------

    \19\ As Deputy Assistant Secretary Stanley noted in his 1994 
memorandum, section 1910.132(b) permits employees to use their own 
equipment in some circumstances but does not specify that practice 
as the norm. ``[I]nstead, the standard underscores the employer's 
obligation to assure that such equipment is adequate and that it is 
properly maintained.''
---------------------------------------------------------------------------

    This result not only follows from the plain language of the 
standard: it is also compelled by case law, decided subsequent to Budd, 
rejecting the premise that the OSH Act imposes enforceable duties upon 
employees. In Atlantic Gulf & Stevedores, the Third Circuit expressly 
rejected Commissioner Van Namee's position, stated in his concurring 
opinion in that case, that the Act imposes enforceable compliance 
responsibilities upon employees. The court found that the ``detailed 
scheme of enforcement set out in sections 9, 10 and 17 of the Act . . . 
is directed only against employers.'' 534 F.2d at 553. The court also 
found section 5(b) of the Act, upon which Commissioner Van Namee relied 
as a basis for his view, to be ``essentially devoid of content.'' Id.
    In USWA, the D.C. Circuit similarly concluded that the Act imposes 
compliance obligations exclusively upon employers. It found, based on 
the legislative history, that section 5(b) ``is essentially an 
exhortation to employees to cooperate in standards and is not meant to 
diminish in any way the employer's compliance responsibilities or his 
responsibility to assure compliance by his own employees.'' 647 F.2d at 
1231 (quoting legislative history). This case law necessarily precludes 
any reading of section 1910.132(b) that would impose a duty upon 
employees to provide protective equipment.
    Considered in the statutory context of exclusive employer 
responsibilities, section 1910.132(a)'s language stating that personal 
protective equipment ``shall be provided'' is equivalent to a direction 
that ``employers shall provide'' the equipment. Though the paragraph 
itself lacks precision, the Act leaves no room for doubt about which 
actor--the employer or the employee--is to do the providing. Moreover, 
the standard, considered in its entirety, provides further assurance 
that employers are to provide protective equipment. Section 
1910.132(d)(i)-(iii) requires employers to perform a hazard assessment 
of their workplaces and to ``select and have each employee use'' 
appropriate personal protective equipment. ``Selection'' and 
``provision'' are closely related functions that should logically be 
performed by the same actor. It would be an anomalous reading that 
required the employer to ``select'' items of PPE suitable for each of 
its employees, yet required employees to ``provide'' such equipment. 
All of these reasons compel rejection of Commissioner Van Namee's 
position in favor of the Secretary's construction, accepted by 
Commissioner Cleary, that the standard requires employers to provide 
and pay for personal protective equipment when necessary to employee 
safety.20
---------------------------------------------------------------------------

    \20\  Section 1910.132(a)'s general requirement that personal 
protective equipment ``shall be provided, used and maintained . . . 
.'' is given additional specificity by the other standards in 
Subpart I, Personal Protective Equipment. These standards make clear 
that the duties listed in section 1910.132(a) fall upon employers. 
See, e.g., section 1910.133(a) (``The employer shall ensure that 
each employee uses appropriate eye or face protection . . .''); 
section 1910.134 (a)(2) (``Respirators shall be provided by the 
employer when such equipment is necessary to protect the health of 
the employee''). The active and passive voices are used 
interchangeably in the standards comprising Subpart I.
---------------------------------------------------------------------------

    c. The standard may be interpreted to require employer payment in 
the absence of explicit cost-allocation language. Finally, the position 
of Commissioner Cleary--that if the standard does not explicitly 
allocate the costs of personal protective equipment, the Commission 
cannot require employers to pay--must be rejected. Unquestionably, the 
Secretary possesses the power authoritatively to interpret ambiguous 
OSHA standards in an administrative adjudication before the Commission. 
Martin v. OSHRC (CF& I

[[Page 15440]]

Steel Corp.), 499 U.S. at 144, 151 (1991). The Secretary's 
interpretation may, as in Budd, be embodied initially in a citation, 
``a form expressly provided for by Congress.'' Id. at 157. It may also 
be disseminated by other means, including interpretive rules and 
enforcement guidelines. Id.
    The Commission has held that the Secretary properly exercised her 
delegated interpretive authority to construe the word ``provide'' to 
mean ``pay for.'' Erie Coke Corp. 15 O.S.H. Cas. (BNA) at 1563 
(affirming Secretary's interpretation of coke oven emissions standard 
to require employers to pay for flame resistant gloves). Therefore, the 
Commission's authority is not limited to enforcement of explicit 
regulatory requirements, as Commissioner Cleary supposed.

Summary and Conclusion

    The uniform interpretation of section 1910.132 announced in STD 1-
6.6 is consistent with the standard's language and purpose, as well as 
with the statute's clear design to place fiscal responsibility for 
achievement of workplace safety on employers. The interpretation is 
also consistent with Federal appellate decisions recognizing the 
Secretary's statutory authority to charge employers with the cost of 
regulatory requirements and with the Commission's precedent in Erie 
Coke Corp. Finally, the interpretation is consistent with the result in 
Budd that employers need not pay for safety shoes. To the extent that 
the concurring rationales offered by Commissioners Van Namee and Cleary 
in Budd address payment for other types of personal protective 
equipment, the foregoing discussion demonstrates that the positions 
taken by these Commissioners are contrary to case law decided since 
Budd and to now-settled principles of regulatory construction.
    The fact that some agency letters issued prior to Deputy Assistant 
Secretary Stanley's memorandum suggest agency acquiescence in the 
Commissioners' concurring opinions in Budd, does not render invalid the 
Secretary's interpretation here. These letters must be considered in 
the context of OSHA's overall approach to the payment issue in 
rulemaking under section 6(b) of the Act, and the Agency's 1990 
interpretive memorandum and citation under section 1910.132(a). In this 
context, the letters reflected divergent positions within the Agency 
concerning the employer's duty to pay for personal protective 
equipment, rather than a settled agency interpretation. Significantly, 
when these letters were sent out, OSHA had not developed an 
authoritative, nationwide position on the allocation of such costs, Cf. 
Drummond Coal Co. v. Hodel, 796 F.2d 503, 508 (D.C. Cir. 1986) 
(regulatory interpretation given by some agency personnel in Alabama 
and relied upon by some Alabama companies for four years did not amount 
to a national policy which the Agency could not change without reasoned 
explanation). See also Martin, 144 U.S. at 157 (interpretive rules and 
agency enforcement guidelines contained in Field Operations Manual may 
be consulted by reviewing courts to determine consistency of 
interpretation advanced in enforcement litigation). In fact, OSHA did 
not develop such a position until the field directive (STD 1-6.6) in 
1994.
    Furthermore, the inconsistent statements prior to 1994 resulted, in 
substantial part, from the erroneous positions stated in the separate 
concurring opinions in Budd: that section 1910.132(a) either imposes no 
duty upon employers to provide personal protective equipment, or cannot 
be interpreted to require employers to pay for such equipment absent 
explicit cost allocation language.
    The Supreme Court has observed that:

The Secretary is not estopped from changing a view she believes to 
have been grounded upon a mistaken legal interpretation. Indeed, an 
administrative agency is not disqualified from changing its mind; 
and when it does, the courts still sit in review of the 
administrative decision and should not approach the statutory 
construction issue de novo and without regard to the administrative 
understanding of the statutes.

Good Samaritan Hospital v. Shalala, 508 U.S. 402, 418 (1993). And in 
the circumstances presented here, ``where the Agency's interpretation 
of [its regulation] is at least as plausible as competing ones, there 
is little, if any, reason not to defer to its construction.'' Id. The 
interpretation in STD 1-6.6 is reasonable, even if it is not the only 
permissible reading of the standard.

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

    Construction industry; Eye and face protection; Foot protection; 
General industry; Hand protection; Head protection; Longshoring 
operations; Marine terminals; Occupational safety and health; Personal 
protective equipment; Protective equipment; Safety glasses; Safety 
shoes; Shipyard industry.

XI. Authority

    This document was prepared under the authority of Charles N. 
Jeffress, Assistant Secretary of Labor for Occupational Safety and 
Health, U.S. Department of Labor, 200 Constitution Avenue, NW, 
Washington, DC 20210.
    Accordingly, pursuant to sections 4, 6, and 8 of the Occupational 
Safety and Health Act of 1970 (29 U.S.C. 653,655, 657), section 107 of 
the Construction Work Hours and Safety Standards Act (Construction 
Safety Act) (40 U.S.C. 333), section 41 of the Longshore and Harbor 
Workers Compensation Act (33 U.S.C. 941), Secretary of Labor's Order 
No. 6-96 (62 FR 111), and 29 CFR part 1911, it is hereby proposed to 
amend 29 CFR parts 1910, 1915, 1917, 1918, and 1926 as set forth below.

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

XII. Proposed Standards

General Industry

PART 1910--[AMENDED]

    29 CFR part 1910 is proposed to be amended as follows:
    1. The authority citation for subpart I of 29 CFR part 1910 would 
be revised to read as follows:

    Authority: Sections 4, 6, and 8 of the Occupational Safety and 
Health Act of 1970 (29 U.S.C. 653,655,657); Secretary of Labor's 
Order No. 12-71 (36 FR 8754), No. 8-76 (41 FR 25059) No. 9-83 (48 FR 
35736), No. 1-90 (55 FR 9033) and No. 6-96 (62 FR 111) as 
applicable, and 29 CFR Part 1911.

    2. A new paragraph (h) would be added to Sec. 1910.132, to read as 
follows:


Sec. 1910.132  General requirements.

* * * * *
    (h) Payment for protective equipment. All protective equipment, 
including personal protective equipment (PPE), required in this part, 
shall be provided by the employer at no cost to employees. Exception: 
The employer is not required to pay for the logging boots required by 
29 CFR Sec. 1910.266(d)(1)(v). The employer is also not required to pay 
for safety-toe protective footwear, or for prescription safety eyewear, 
provided that all three of the following conditions are met:
    (1) The employer permits such footwear or eyewear to be worn off 
the job-site;
    (2) The footwear or eyewear is not used at work in a manner that 
renders it unsafe for use off the job-site (for example, contaminated 
safety-toe footwear would not be permitted to be worn off a job-site); 
and
    (3) Such footwear or eyewear is not designed for special use on the 
job.

[[Page 15441]]

Shipyards

PART 1915--[AMENDED]

    29 CFR Part 1915 is proposed to be amended as follows:
    1. The Authority citation for Subpart I of 29 CFR Part 1915 would 
be revised to read as follows:

    Authority: Secs. 4, 6, and 8, Occupational Safety and Health Act 
of 1970 (29 U.S.C. 653, 655, 657); section 41, Longshore and Harbor 
Workers' Compensation Act (33 U.S.C. 941), Secretary of Labor's 
Order No. 8-76 (41 FR 25059), No. 9-83 (48 FR 35756), No. 1-90 (55 
FR 9033) and No. 6-96 (62 FR 111) as applicable; and 29 CFR part 
1911.

    2. A new paragraph (f) would be added to Sec. 1915.152, to read as 
follows:


Sec. 1915.152  General Requirements.

* * * * *
    (f) Payment for protective equipment. All protective equipment, 
including personal protective equipment (PPE), required in this part, 
shall be provided by the employer at no cost to employees.
    Exception: The employer is not required to pay for safety-toe 
protective footwear, or for prescription safety eyewear, provided that 
all three of the following conditions are met:
    (1) The employer permits such footwear or eyewear to be worn off 
the job-site;
    (2) The footwear or eyewear is not used at work in a manner that 
renders it unsafe for use off the job-site (for example, contaminated 
safety-toe footwear would not be permitted to be worn off a job-site); 
and
    (3) Such footwear or eyewear is not designed for special use on the 
job.

Marine Terminals

PART 1917--[AMENDED]

    29 CFR Part 1917 is proposed to be amended as follows:
    1. The authority citation for Subpart E of 29 CFR part 1917 would 
continue to read as follows:

    Authority: Sec. 41, Longshore and Harbor Workers' Compensation 
Act (33 U.S.C. 941); Secs. 4, 6, and 8 of the Occupational Safety 
and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of 
Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 
FR 35736), or 6-96 (62 FR 111), as applicable; and 29 CFR part 1911. 
Section 1917.28 also issued under 5 U.S.C. 553.

    2. A new Sec. 1917.96 would be added to supbart E, to read as 
follows:


Sec. 1917.96  Payment for protective equipment.

    All protective equipment, including personal protective equipment 
(PPE), required in this part, shall be provided by the employer at no 
cost to employees. Exception: The employer is not required to pay for 
safety-toe protective footwear, or for prescription safety eyewear, 
provided that all three of the following conditions are met:
    (a) The employer permits such footwear or eyewear to be worn off 
the job-site;
    (b) The footwear or eyewear is not used at work in a manner that 
renders it unsafe for use off the job-site (for example, contaminated 
safety-toe footwear would not be permitted to be worn off a job-site); 
and
    (c) Such footwear or eyewear is not designed for special use on the 
job.

Longshoring

PART 1918--[AMENDED]

    29 CFR part 1918 is proposed to be amended as follows:
    1. The authority citation for 29 CFR part 1918 would be revised to 
read as follows:

    Authority: Secs. 4, 6, and 8 of the Occupational Safety and 
Health Act, 29 U.S.C. 653, 655, 657; Walsh-Healey Act, 41 U.S.C. 35 
et seq.; Service Contract Act of 1965, 41 U.S.C. 351 et seq.; Sec. 
107, Contract Work Hours and Safety Standards Act (Construction 
Safety Act), 40 U.S.C. 333; Sec. 41, Longshore and Harbor Workers' 
Compensation Act, 33 U.S.C. 941; National Foundation of Arts and 
Humanities Act, 20 U.S.C. 951 et seq.; Secretary of Labor's Order 
No. 6-96 (62 FR 111) and 29 CFR part 1911.

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


Sec. 1918.106  Payment for protective equipment.

    All protective equipment, including personal protective equipment 
(PPE), required in this part, shall be provided by the employer at no 
cost to employees. Exception: The employer is not required to pay for 
safety-toe protective footwear, or for prescription safety eyewear, 
provided that all three of the following conditions are met:
    (a) The employer permits such footwear or eyewear to be worn off 
the job-site;
    (b) The footwear or eyewear is not used at work in a manner that 
renders it unsafe for use off the job-site (for example, contaminated 
safety-toe footwear would not be permitted to be worn off a job-site); 
and
    (c) Such footwear or eyewear is not designed for special use on the 
job.

Construction

PART 1926--[AMENDED]

    29 CFR part 1926 is proposed to be amended as follows:
    1. The authority citation for subpart E of part 1926 would be 
revised to read as follows:

    Authority: Sec. 107, Contract Work Hours and Safety Standards 
Act (Construction Safety Act) (40 U.S.C. 333); Secs. 4, 6, and 8 of 
the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), or 6-96 (62 FR 111), 
as applicable; and 29 CFR part 1911.

    2. A new paragraph (d) would be added to Sec. 1926.95, to read as 
follows:


Sec. 1926.95  Criteria for personal protective equipment.

* * * * *
    (d) Payment for Protective Equipment. All protective equipment, 
including personal protective equipment (PPE), required in this part, 
shall be provided by the employer at no cost to employees. Exception: 
The employer is not required to pay for safety-toe protective footwear, 
or for prescription safety eyewear, provided that all three of the 
following conditions are met:
    (1) The employer permits such footwear or eyewear to be worn off 
the job-site;
    (2) The footwear or eyewear is not used at work in a manner that 
renders it unsafe for use off the job-site (for example, contaminated 
safety-toe footwear would not be permitted to be worn off a job-site); 
and
    (3) Such footwear or eyewear is not designed for special use on the 
job.

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