[Federal Register Volume 72, Number 220 (Thursday, November 15, 2007)]
[Rules and Regulations]
[Pages 64342-64430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5608]



[[Page 64341]]

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Part III





Department of Labor





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Occupational Safety and Health Administration



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29 CFR Parts 1910, 1915, 1917 et al.



Employer Payment for Personal Protective Equipment; Final Rule

  Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / 
Rules and Regulations  

[[Page 64342]]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

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

[Dockets S-042 (OSHA docket office) and OSHA-S042-2006-0667 
(regulations.gov)]
[RIN No. 1218-AB77]


Employer Payment for Personal Protective Equipment

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

ACTION: Final Rule.

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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 address PPE of many kinds: hard hats, 
gloves, goggles, safety shoes, safety glasses, welding helmets and 
goggles, faceshields, chemical protective equipment, 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 
requiring employers to pay for the PPE provided, with exceptions for 
specific items. The rule does not require employers to provide PPE 
where none has been required before. Instead, the rule merely 
stipulates that the employer must pay for required PPE, except in the 
limited cases specified in the standard.

DATES: This final rule becomes effective on February 13, 2008. The 
final rule must be implemented by May 15, 2008.

ADDRESSES: In accordance with 28 U.S.C. 2112(a), the Agency designates 
the Associate Solicitor of Labor for Occupational Safety and Health, 
Office of the Solicitor of Labor, Room S-4004, U.S. Department of 
Labor, 200 Constitution Avenue, NW., Washington, DC 20210, to receive 
petitions for review of the final rule.

FOR FURTHER INFORMATION CONTACT: Mr. Kevin Ropp, OSHA Office of 
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Washington, DC 20210. Telephone: (202) 693-1999.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Introduction
II. Background
III. The Proposed Rule
IV. Rationale for Requiring PPE Payment and Description of the Final 
Rule
V. PPE for Which Employer Payment Is Required
VI. Employee Owned PPE
VII. Industries Affected
VIII. Acceptable Methods of Payment
IX. Effective Dates
X. Effect on Existing Union Contracts
XI. Effect on Other OSHA Standards
XII. Miscellaneous Issues
XIII. Other Alternatives Considered During the Rulemaking Process
XIV. Legal Authority
XV. Final Economic and Regulatory Flexibility Analyses
XVI. Environmental Assessment
XVII. Federalism
XVIII. Unfunded Mandates Reform Act
XIX. OMB Review Under the Paperwork Reduction Act
XX. State Plan Standards
XXI. Authority and Signature
XXII. Regulatory Text

I. Introduction

    In 1999, OSHA issued a proposal to require employers to pay for all 
protective equipment, including personal protective equipment (PPE), 
with explicit exceptions for certain safety shoes, prescription safety 
eyewear, and logging boots (64 FR 15402). The proposal cited two 
primary reasons for requiring employers to pay for PPE. First, OSHA 
preliminarily concluded that the Occupational Safety and Health Act of 
1970 (OSH Act, or the Act) implicitly requires employers to pay for PPE 
that is necessary to protect the safety and health of employees. 
Second, OSHA preliminarily concluded that an across-the-board employer-
payment requirement would result in safety benefits by reducing the 
misuse or non-use of PPE (64 FR 15406-07). Following an initial notice 
and comment period, an informal rulemaking hearing, a second notice and 
comment period on specific issues, and careful Agency deliberation, 
OSHA finds that its preliminary conclusions are appropriate and is 
therefore issuing this final standard requiring employers to pay for 
PPE, with limited exceptions.

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. PPE 
includes many different types of protective equipment that an employee 
uses or wears, such as fall arrest systems, safety-toe shoes, and 
protective gloves. Many OSHA standards require employers to provide PPE 
to their employees or to ensure the use of PPE. Some standards indicate 
in broad performance terms when PPE is to be used, and what is to be 
used (See, e.g., 29 CFR 1910.132). Other provisions are very specific, 
such as 29 CFR 1910.266(d)(1)(iv), which requires that chain saw 
operators be provided with protective leggings during specific 
operations, and 29 CFR 1910.1027(g)(1), which requires respiratory 
protection for employees exposed to cadmium above a certain permissible 
exposure limit (PEL).
    Some OSHA standards specifically require the employer to pay for 
PPE. However, most are silent with regard to whether the employer is 
obligated to pay. OSHA's health standards issued after 1978 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, e.g., OSHA's inorganic arsenic standard, 29 CFR 
1910.1018(j)(1) and 43 FR 19584). In addition, the regulatory text and 
preamble discussion for some safety standards have also been clear that 
the employer must both provide and pay for PPE (See, e.g., the logging 
standard, 29 CFR 1910.266(d)(1)(iii) and (iv) and 59 FR 51701).
    For most PPE provisions in OSHA's standards, however, the 
regulatory text does not explicitly address the issue of payment for 
personal protective equipment. 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 
state that the employer must pay for it or that it must be provided at 
no cost to employees. The provisions that are silent on whether the 
employer must pay have been subject to varying interpretation and 
application by employers, OSHA, the Occupational Safety and Health 
Review Commission (Review Commission), and the courts.
    In 1994, OSHA established a nationwide policy on 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 stated that where PPE is very personal in 
nature and used by the employee off the job, such as is often the case 
with steel-toe safety shoes (but not metatarsal foot protection), the 
issue of

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payment may be left to labor-management negotiations.
    However, the Review Commission declined to accept the 
interpretation embodied in the 1994 memorandum as it applied to 29 CFR 
1910.132(a). In Secretary of Labor v. Union Tank Car Co., 18 O.S.H. 
Cas. (BNA) 1067 (Rev. Comm. 1997), an employer was issued a citation 
for failing to pay for metatarsal foot protection and welding gloves. 
The Review 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 it read as inconsistent with that policy. In response to the 
Union Tank decision, OSHA issued the proposed standard on March 31, 
1999 (64 FR 15402-15441).

III. The Proposed Rule

    The proposed rule would have established a uniform requirement that 
employers pay for all types of PPE required under OSHA standards, 
except for certain safety-toe shoes and boots, prescription safety 
eyewear, and logging boots. The proposal cited two main justifications 
for requiring employers to pay for PPE. First, OSHA preliminarily 
concluded that the OSH Act requires employers to pay for PPE that is 
necessary for employees to perform their jobs safely. Second, OSHA 
preliminarily concluded that the proposed rule would enhance compliance 
with existing PPE requirements in several practical ways, thereby 
significantly reducing the risk of non-use or misuse of PPE (64 FR 
15406-07).

A. Preliminary Statutory Analysis

    OSHA advanced three main justifications for preliminarily 
interpreting the OSH Act to require employers to pay for virtually all 
PPE. As a threshold matter, OSHA cited the statute and legislative 
history that Congress intended that employers bear general financial 
responsibility for the means necessary to make workplaces safe (64 FR 
15404). The Agency believed that this intent was evidenced by the fact 
that the statute makes employers solely responsible for compliance with 
safety and health standards. The employer's legal responsibility to 
ensure compliance implies an obligation to pay for the means necessary 
to that end (Id.). OSHA also relied upon statements in the legislative 
history demonstrating that lawmakers expected employers to bear the 
costs of complying with OSHA standards (Id.).
    OSHA further preliminarily concluded that requiring employers to 
pay for PPE was a logical extension of the undisputed principle that 
employers must pay for engineering controls. The proposal noted that 
most standards require employers to install engineering controls, such 
as ventilation devices, and to implement administrative measures, such 
as establishing specific regulated areas or danger zones, as the 
primary means for reducing employee exposure to hazardous conditions. 
Since the Agency viewed PPE as another type of hazard control measure 
used to protect employees, there was no basis to distinguish PPE from 
other hazard controls such as engineering controls and administrative 
controls for purposes of cost allocation (64 FR 15408). OSHA also 
indicated that requiring employers generally to pay for PPE would be 
consistent with the Agency's approach of including explicit 
requirements in many health standards that PPE must be provided at no 
charge to employees.

B. Safety and Health Benefits

    Although OSHA proposed the PPE payment rule primarily to clarify 
employers' obligations under its standards that require employers to 
provide PPE, the Agency also believed that the revised rules would 
improve protections for employees who must wear PPE. OSHA cited a 
number of reasons underlying this belief in the preamble to the 
proposed rule. First, the Agency believed that employers were more 
knowledgeable about hazards existing in the workplace, and were 
therefore in the best position to identify and select the correct 
equipment and maintain it properly (Id. at 15409). Second, the Agency 
believed that employer payment for PPE would reduce the risk of 
employees not using or misusing PPE by ensuring that employers maintain 
central control over the selection, issuance, and use of PPE (Id.). 
Third, OSHA believed that employees would be more likely to cooperate 
in achieving full compliance with existing standards if protective 
equipment was provided at no charge (Id.). In the Agency's opinion, all 
of these considerations together would serve to increase the use and 
effectiveness of PPE, and thus reduce the incidence of injuries and 
illnesses that are caused by non-use or misuse of PPE.

C. Proposed Exceptions

    OSHA proposed to require the employer to pay for all PPE required 
by OSHA standards, with explicit exceptions for certain safety-toe 
protective footwear and prescription safety eyewear. Safety-toe 
protective footwear and prescription safety glasses were excepted from 
the employer payment requirement, in large part because these items 
were considered to be very personal in nature and were often worn off 
the jobsite. The proposal would have allowed the exceptions if they met 
the following conditions: (1) The employer permits such footwear or 
eyewear to be worn off the jobsite; (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. In addition, under the proposed revision, the employer 
would not have to pay for logging boots required by 29 CFR 
1910.266(d)(1)(v) (Id. at 15403).
    The limited exceptions to the general payment rule recognized that 
there are certain types of PPE that fall outside the scope of the 
general statutory requirement for employers to pay for the means of 
compliance with OSHA standards. While safety-toe protective shoes and 
boots, prescription safety eyewear, and logging boots are necessary to 
protect employees, the Agency considered other factors in deciding to 
exempt this equipment from the employer payment requirement, including 
that the equipment is very personal, is often used outside the 
workplace, and that it is taken by employees from jobsite to jobsite 
and employer to employer. The Agency stated that there is ``little 
statutory justification'' for requiring employers to pay for this type 
of PPE (Id. at 15407).
    The proposal asked for comment on the exceptions to the general 
employer payment requirement. One alternative on which public input was 
specifically requested would have excepted any type of PPE that the 
employer could demonstrate was personal in nature and customarily used 
off the job (Id. at 15416). OSHA also sought comment on whether there 
were other specific types of PPE besides safety-toe shoes and boots and 
prescription safety eyewear that should be excepted, or whether 
employers should pay for all PPE including safety-toe shoes and boots 
and prescription safety eyewear (Id.). Finally, the proposal sought 
comment on whether the exceptions were appropriate in high-turnover 
industries like construction and whether unique issues in the maritime 
industry should affect the issue of who pays for PPE (Id.).
    On July 8, 2004, OSHA published a notice to re-open the record on 
another category of PPE--tools of the trade--that some commenters 
suggested should be exempted from an employer payment requirement (69 
FR 41221-41225). Specifically, OSHA asked a number of

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questions and solicited comment on whether and how a final rule should 
address situations where PPE has been customarily provided by 
employees.
    The comments received by the Agency during this limited re-opening 
are included in the discussion of the rulemaking record below.\1\
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    \1\ Comments received in response to the re-opening are 
indicated as Exhibits ``45: X'' or ``46: X.'' All other citations 
refer to comments and testimony in response to the proposal.
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IV. Rationale for Requiring PPE Payment and Description of the Final 
Rule

A. Rationale for Requiring PPE Payment

    In this final rule, OSHA is requiring employers to pay for the PPE 
used to comply with OSHA standards, with a few exceptions. OSHA is 
promulgating the final rule for three primary reasons. First, the rule 
effectuates the underlying requirement in the OSH Act that employers 
pay for the means necessary to create a safe and healthful work 
environment. This includes paying for the requirements in OSHA's safety 
and health standards. Second, the rule will reduce work-related 
injuries and illnesses. It is thus a legitimate exercise of OSHA's 
rulemaking authority to promulgate ancillary provisions in its 
standards that are reasonably related to the purposes of the underlying 
standards. Third, the rule will create a clear policy across OSHA's 
standards, thus reducing confusion among employers and employees 
concerning the PPE that employers must provide at no cost to employees.
1. The OSH Act Requires Employer Payment for PPE
    OSHA is requiring employers to pay for PPE used to comply with OSHA 
standards in order to effectuate the underlying cost allocation scheme 
in the OSH Act. The OSH Act requires employers to pay for the means 
necessary to create a safe and healthful work environment. Congress 
placed this obligation squarely on employers, believing such costs to 
be appropriate in order to protect the health and safety of employees. 
This final rule does no more than clarify that under the OSH Act 
employers are responsible for providing at no cost to their employees 
the PPE required by OSHA standards to protect employees from workplace 
injury and death.
    This policy is consistent with OSHA's past practice in numerous 
rulemakings. Since 1978, OSHA has promulgated nearly twenty safety and 
health standards that explicitly require employers to furnish PPE at no 
cost. For example, the standards for logging (Sec.  1910.266), noise 
(Sec.  1910.95), lead (Sec.  1910.1025), asbestos (Sec.  1910.1001) and 
bloodborne pathogens (Sec.  1910.1030) require employers to provide 
employees with PPE at no cost to employees. In litigation following the 
issuance of some of these standards, the courts and the Review 
Commission have upheld OSHA's legal authority to require employers to 
pay for PPE.
2. The Rule Will Result in Safety Benefits
    Separate from effectuating the statutory cost allocation scheme, 
this rule will also help prevent injuries and illnesses. OSHA has 
carefully reviewed the rulemaking record and finds that requiring 
employers to pay for PPE will result in significant safety benefits. As 
such, it is a legitimate exercise of OSHA's statutory authority to 
promulgate these ancillary provisions in its standards to reduce the 
risk of injury and death.
    There are three main reasons why the final rule will result in 
safety benefits:

     When employees are required to pay for their own PPE, 
many are likely to avoid PPE costs and thus fail to provide 
themselves with adequate protection. OSHA also believes that 
employees will be more inclined to use PPE if it is provided to them 
at no cost.
     Employer payment for PPE will clearly shift overall 
responsibility for PPE to employers. When employers take full 
responsibility for providing PPE to their employees and paying for 
it, they are more likely to make sure that the PPE is correct for 
the job, that it is in good condition, and that the employee is 
protected.
     An employer payment rule will encourage employees to 
participate whole-heartedly in an employer's safety and health 
program and employer payment for PPE will improve the safety culture 
at the worksite.

    OSHA's conclusions regarding the safety benefits of the employer 
payment rule are supported by the numbers of independent occupational 
safety and health experts in the record who stated that employer 
payment for PPE will result in safer working conditions. Independent 
safety groups that supported the rule and agreed with OSHA's analysis 
that it will result in safety benefits include: The American College of 
Occupational and Environmental Medicine (ACOEM); the American 
Association of Occupational Health Nurses (AAOHN); and the American 
Society of Safety Engineers (ASSE). The National Institute for 
Occupational Safety and Health (NIOSH), the federal agency with expert 
responsibility for occupational safety and health research created by 
Congress in the OSH Act, also strongly supported OSHA's conclusions 
that an employer payment rule would result in significant safety 
benefits.
3. Clarity in PPE Payment Policy
    Another benefit of the final PPE payment rule is clarity in OSHA's 
policy. While it is true that most employers pay for most PPE most of 
the time, the practices for providing PPE are quite diverse. Many 
employers pay for some items and not for others, either as a matter of 
collective bargaining or long standing tradition. In some cases, costs 
are shared between employees and employers. In other workplaces, the 
employer pays for more expensive or technologically advanced PPE while 
requiring employees to pay for more common items. However, in some 
workplaces exactly the opposite is true.
    Collective bargaining agreements often contain pages of text 
describing PPE provisions, including lists of the items employers will 
pay for and those that will be the responsibility of employees. Even 
these have little or no consistency. For example, Ms. Nowell of the 
United Food and Commercial Workers Union (UFCW) pointed to differences 
in PPE payment practices across food processing establishments:

    Our contracts show differences across industries, as well as 
across companies. We have also found differences between union 
plants and those that are non-union. Non-union workers [are] paying 
for more of their PPE.
    This variation has led to disparate treatment of workers who do 
the same jobs, sometimes for the same company, but at different 
locations. * * * One of the most inconsistent items, both as to 
their requirement and the issue of who pays, is rubber boots, often 
steel toed, for production workers. The floors in poultry and meat 
plants and other food processing as well * * * are wet, often from 
standing water, and slippery from fat and product that invariably 
covers the floors (Tr. 184-186).

    Improved clarity in OSHA's standards, as well as a more consistent 
approach from company to company, will have benefits for both employers 
and employees. The record shows that PPE provision has been a 
contentious issue, and that employers and employees are spending an 
inordinate amount of time and effort discussing, negotiating, and 
generally working out who is to pay for PPE. The rulemaking will put 
some of that discussion to rest by providing clear requirements. As 
noted by ASSE ``[a] key issue for ASSE members in improving the 
efficiency/effectiveness of safety and health programs is consistency'' 
(Ex. 12: 110).
    For these reasons, OSHA is promulgating this final rule requiring, 
with limited exceptions, employer

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payment for PPE used to comply with OSHA standards. (See Section XIV, 
``Legal Authority,'' for a more detailed discussion of the 
justification for the final rule.)

B. Description of the Final Rule

    This rule does not set forth new requirements regarding the PPE 
that must be provided and the circumstances in which it must be 
provided. The rule merely requires employers to pay for the PPE that is 
used to comply with the Parts amended. The rule generally requires 
employers to pay for PPE, and sets forth specific exceptions where 
employers are not required to pay for such equipment. The final rule 
includes the exceptions in the proposed rule, which have been clarified 
and simplified; clarifications of OSHA's intent in the proposed rule 
regarding everyday clothing and weather-related clothing; and 
clarifications regarding employee-owned PPE and replacement PPE that 
were raised by various commenters. While these clarifications have 
added several paragraphs to the regulatory text, the final rule 
provides employees no less protection than that provided by the 
proposal.
    The first paragraph in the final rule contains the general 
requirement that employers must pay for the protective equipment, 
including personal protective equipment that is used to comply with the 
amended OSHA standards. (See 29 CFR 1910.132(h)(1); 1915.152(f)(1); 
1917.96; 1918.106; 1926.95(d)(1)) The provisions that follow the first 
paragraph modify this general requirement for employer payment and 
include the limited exceptions to the employer-payment rule. Employers 
are responsible for paying for the minimum level of PPE required by the 
standards. If an employer decides to use upgraded PPE to meet the 
requirements, the employer must pay for that PPE. If an employer 
provides PPE at no cost, an employee asks to use different PPE, and the 
employer decides to allow him or her to do so, then the employer is not 
required to pay for the item.
    The first exception addresses non-specialty safety-toe protective 
footwear and non-specialty prescription safety eyewear. (See 29 CFR 
1910.132(h)(2); 1915.152(f)(2); 1917.96(a); 1918.106(a); 1926.95(d)(2)) 
The regulatory text makes clear that employers are not required to pay 
for ordinary safety-toe footwear and ordinary prescription safety 
eyewear, so long as the employer allows the employee to wear these 
items off the job-site.
    The second exception relates to metatarsal protection. (See 29 CFR 
1910.132(h)(2); 1915.152(f)(2); 1917.96(a); 1918.106(a); 1926.95(d)(2)) 
The final rule clarifies that an employer is not required to pay for 
shoes with integrated metatarsal protection as long as the employer 
provides and pays for metatarsal guards that attach to the shoes.
    A third exception to the final rule is located only in the general 
industry standard (at 29 CFR 1910.132(h)(4)(i)) and exempts logging 
boots from the employer payment requirement. The logging standard does 
not require employers to pay for the logging boots required by 
1910.266(d)(1)(v), but leaves the responsibility for payment open to 
employer and employee negotiation. The final rule makes clear that 
logging boots will continue to be excepted from the employer payment 
rule.
    The fourth exception to employer payment in the final rule relates 
to everyday clothing. (See 29 CFR 1910.132(h)(4)(ii); 
1915.152(f)(4)(i); 1917.96(d)(1); 1918.106(d)(1); 1926.95(d)(4)(i)) The 
final rule recognizes that there are certain circumstances where long-
sleeve shirts, long pants, street shoes, normal work boots, and other 
similar types of clothing could serve as PPE. However, where this is 
the case, the final rule excepts this everyday clothing from the 
employer payment rule. Similarly, employers are not required to pay for 
ordinary clothing used solely for protection from weather, such as 
winter coats, jackets, gloves, and parkas (See 29 CFR 
1910.132(h)(4)(iii); 1915.152(f)(4)(ii); 1917.96(d)(2); 1918.106(d)(2); 
1926.95(d)(4)(ii)). In the rare case that ordinary weather gear is not 
sufficient to protect the employee, and special equipment or 
extraordinary clothing is needed to protect the employee from unusually 
severe weather conditions, the employer is required to pay for such 
protection. OSHA also notes that clothing used in artificially-
controlled environments with extreme hot or cold temperatures, such as 
freezers, are not considered part of the weather gear exception.
    The final rule clarifies the issue of who pays for replacement PPE. 
The final rule requires that the employer pay for the replacement of 
PPE used to comply with OSHA standards. (See 29 CFR 1910.132(h)(5); 
1915.152(f)(5); 1917.96(e); 1918.106(e); 1926.95(d)(5)) However, in the 
limited circumstances in which an employee has lost or intentionally 
damaged the PPE issued to him or her, an employer is not required to 
pay for its replacement and may require the employee to pay for such 
replacement.
    The final rule also clearly addresses the use of employee-owned 
PPE. (See 29 CFR 1910.132(h)(6); 1915.152(f)(6); 1917.96(f); 
1918.106(f); 1926.95(d)(6)) The rule acknowledges that employees may 
wish to use PPE they own, and if their employer allows them to do so, 
the employer will not need to reimburse the employees for the PPE. 
However, the regulatory text also makes clear that employers cannot 
require employees to provide their own PPE or to pay for their own PPE. 
The employee's use of PPE they own must be completely voluntary.
    The final provision in the rule provides an enforcement deadline of 
six months from the date of publication to allow employers time to 
change their existing PPE payment policies to accommodate the final 
rule. (See 29 CFR 1910.132(h)(7); 1915.152(f)(7); 1917.96(f); 
1918.106(f); 1926.95(d)(7)) A note to the final standard also clarifies 
that when the provisions of another OSHA standard specify whether or 
not the employer must pay for specific equipment, the payment 
provisions of that standard will prevail.
    Sections V through XI below further describe the final rule and 
discuss the comments received during the rulemaking process:
     Section V describes the PPE required to be paid for by 
employers, and the exceptions to the payment requirement. It also 
explains the final rule's treatment of replacement PPE.
     Section VI discusses the exception from employer payment 
when an employee owns appropriate PPE and asks to use it in place of 
the equipment the employer provides.
     Section VII discusses the industries affected by the final 
rule and how employer payment applies to different employment 
situations.
     Section VIII describes acceptable means for employers and 
employees to comply with the final rule and discusses various payment 
mechanisms employers and employees have created to effectuate payment 
for PPE.
     Sections IX through XI explain the effective date of the 
final rule, the effect of the rule on collective bargaining agreements, 
and how employer payment provisions in other standards affect the 
provisions in the final rule.

V. PPE for Which Employer Payment Is Required

    In this section, OSHA will address several key issues, including 
the personal protective equipment that employers are required to 
provide at no cost to their employees and the protective equipment that 
is exempted. OSHA wishes to emphasize that this

[[Page 64346]]

rulemaking does not change existing OSHA requirements as to the types 
of PPE that must be provided. Instead, the rule merely stipulates that 
the employer must pay for PPE that is required by OSHA standards, with 
the exceptions listed.
    The items excepted from payment by this rule are:
     Non-specialty safety-toe protective footwear (including 
steel-toe shoes or steel-toe boots) and non-specialty prescription 
safety eyewear, that is allowed by the employer to be worn off the job-
site;
     Shoes or boots with built-in metatarsal protection that 
the employee has requested to use instead of the employer-provided 
detachable metatarsal guards;
     Logging boots required by 1910.266(d)(1)(v);
     Everyday work clothing; or
     Ordinary clothing, skin creams, or other items used solely 
for protection from the weather.
    This section is particularly important because commenters to the 
rulemaking record identified a number of items that they thought would 
be subject to the rule and asked the Agency to clarify whether the 
final rule would cover the items. Some of these items are: gloves (see, 
e.g., Exs. 12: 7, 17, 19, 55, 68, 111, 129, 149, 163, 171, 217, 235), 
metatarsal shoes (see, e.g., Exs. 12: 149, 235) , sunglasses (see, 
e.g., Exs. 12: 129, 222), goggles (see, e.g., Exs. 12: 111, 163), flame 
retardant clothing (see, e.g., Exs. 12: 16, 132, 133, 183, 206, 221, 
46: 46), personal apparel (see, e.g., Exs. 12: 10, 16, 28), standard 
work apparel (see, e.g., Exs. 12: 55, 129), long-sleeve shirts (see, 
e.g., Exs. 12: 210, 222), long pants (see, e.g., Exs. 12: 117, 222), 
jeans (see, e.g., Ex. 12: 10), cotton coveralls (see, e.g., Ex. 12: 
210), cold weather gear (see, e.g., Exs. 12: 129, 210), non safety-toe 
work boots (see, e.g., Ex. 12: 10), hard hats (see, e.g., Exs. 12: 29, 
55, 68, 91, 112), aprons (see, e.g., Exs. 12: 111, 163), rain suits 
(see, e.g., Exs. 12: 55, 91, 210), back belts (see, e.g., Ex. 12: 111, 
163), coveralls (see, e.g., Ex. 12: 111, 129, 163), tool belts (see, 
e.g., Ex. 12: 129), and face masks in areas where respirators are not 
required (see, e.g., Ex. 12: 109).
    While OSHA believes it is setting forth a clear requirement in this 
final rule--that employers pay for PPE required by OSHA standards 
except for the exceptions listed in the standard--OSHA understands the 
request by commenters to provide guidance on the applicability of the 
standard to certain pieces of equipment. OSHA does that in this 
section. The section is divided into three discussions. First, the 
Agency discusses those items that are not PPE or are not required by 
OSHA standards and thus not covered by the final rule. Second, the 
Agency addresses the exceptions to the general employer payment 
requirement in the final rule. And third, OSHA describes other items 
the Agency determined needed more extensive discussion, based on the 
comments to the record.

A. Items That Are Not Considered To Be PPE or Are Not Required by OSHA 
Standards

    The final rule clarifies that an employer's obligation to pay for 
PPE is limited to PPE that is used to comply with the OSHA standards 
amended by this rule, except for the specific listed exceptions. Thus, 
if a particular item is not PPE or is not required by OSHA standards, 
it is not covered by the final rule.
    Many commenters sought clarification as to whether certain items 
were PPE and would therefore need to be paid for by employers. These 
items included coveralls (See, e.g., Exs. 12: 111, 163, 206; 45: 28); 
aprons (See, e.g., Exs. 12: 111, 163, 206); uniforms (See, e.g., Exs. 
12: 19, 55. 91); overalls (See, e.g., Ex. 45: 28); standard work 
clothing (See, e.g., Exs. 45: 28, 48; 12: 55, 91; 46: 44); and everyday 
work gloves (See, e.g., Exs. 12: 6, 7, 22, 55, 68, 91, 109, 111, 129, 
163, 171, 172, 173, 189, 206, 212, 221, 222; 45: 13, 28). In a 
representative comment, Rowan Companies, Inc. remarked that the 
standard should not be ``[a]n ``open checkbook'' to force employers to 
provide for common and routine items not necessary for personal 
protection.'' This commenter added:

[o]ther items could be considered personal protective equipment by 
those wishing to unfairly benefit from this rulemaking * * * by 
using overly broad interpretations of the proposed wording, items 
such as cotton work gloves, rubber boots, rain suits, and uniforms 
could be labeled personal protective equipment (Ex. 12: 55).

    A number of electrical contractors raised the issue of tools 
required for performing electrical work under the National Fire 
Protection Association's NFPA 70E (Standard for Electrical Safety in 
the Workplace) voluntary consensus standard, which requires certain 
tools to be voltage rated (See, e.g., Exs. 41: 1; 45: 6, 7, 8, 9, 10, 
11, 12, 14, 15, 16, 19, 20, 22, 23, 24, 29, 31, 38, 41, 44, 45, 46, 47; 
46: 21, 22, 23, 24, 26, 29, 38, 40). Several electric utility firms 
noted that ``[s]ome equipment can be considered to be personal tools, 
or it may be used for convenience or cleanliness versus protection from 
hazards * * *'' (See, e.g., Exs. 12: 107, 114, 150, 201, 206). Dow was 
concerned that the rule could be interpreted to mean that employers 
would be required to pay for ``[e]ven the most basic work clothes, 
hats, ear muffs, sunglasses, long sleeve shirts, pants, socks, etc.'' 
(Ex. 12: 129).
    Under the final rule, employers are not required to pay for items 
that are not PPE. This includes some of the items identified by 
commenters above. Uniforms, caps, or other clothing worn solely to 
identify a person as an employee would not be considered to be PPE 
because such items are not being worn for protection from a workplace 
hazard. Similarly, items worn to keep employees clean for purposes 
unrelated to safety or health are not considered to be PPE. Thus, items 
such as denim coveralls, aprons or other apparel, when worn solely to 
prevent clothing and/or skin from becoming soiled (unrelated to safety 
or health), are not considered to be PPE and employer payment is not 
required by this rule.
    The same is true for items worn for product or consumer safety or 
patient safety and health rather than employee safety and health. 
Several hearing participants in the food industry mentioned use of hair 
nets and beard nets in their discussion of PPE worn in food processing 
plants (Tr. 186-187, 190). To the extent that these items are not used 
to comply with machine guarding requirements, but are worn solely to 
protect the food product from contamination, this rule does not require 
employer payment. Similarly, plastic or rubber gloves worn by food 
service employees solely to prevent food contamination during meal 
preparation, and surgical masks worn by healthcare personnel solely to 
prevent transmitting organisms to patients are not covered by this 
rule. Of course, cut-proof gloves used to prevent lacerations will be 
covered by the rule, and employer payment is required.
    Ordinary hand tools are also not PPE. While some specific and 
specialized tools have protective characteristics, such as electrically 
insulated ``hot sticks'' used by electric utility employees to handle 
live power lines, these tools are not considered to be PPE. They are 
more properly viewed as engineering controls that isolate the employee 
from the hazard--similar to safe medical devices (e.g., self-sheathing 
needles) required under OSHA's Bloodborne Pathogens (BBP) standard--and 
thus would not be covered by this final rule. (As an engineering 
control method, however, employers must pay for this equipment.)
    Numerous commenters noted that many types of equipment or clothing 
could be considered PPE and that the

[[Page 64347]]

proposed rule might then require employers to pay for those items. More 
specifically, Organization Resource Counselors, Inc. (ORC) stated:

    Many companies have long-standing general safety rules or 
policies requiring workers to wear types of work clothing or use 
items which are not specifically regulated by other OSHA standards, 
but which may help workers to avoid workplace injury. Examples are 
long sleeved shirts, long-legged pants, and simple work gloves 
(fabric or leather). All of these will help prevent abrasions to 
skin, but are not specified in any OSHA standard, are not currently 
viewed as PPE * * * Similarly, coats, hats, and gloves worn by 
employees working outdoors have an employee health enhancement 
aspect in that they protect against exposure to the elements * * * 
(Ex. 12: 222).

    In a similar discussion, Bell Atlantic commented: ``Bell Atlantic 
requires its technicians to wear long sleeve shirts and long pants when 
climbing utility poles; this PPE protects the employee's skin from 
abrasion, irritation, splinters, etc. This clothing is personal in 
nature and it is worn off the job; we do not specify what types of long 
sleeve shirts and long pants must be worn'' (Ex. 12: 117). The National 
Arborist Association (NAA) also was concerned that the proposed rule 
would potentially:

[y]ield absurd results such as shifting to employers the cost of 
purely personal clothing items which are required to be worn on the 
job for a protective function, but which are uniquely personal to 
the employee and are ubiquitously worn as much off the job as on the 
job--such items as required blue jeans rather than shorts to protect 
legs from being scratched from branches; tighter-fitting tee shirts 
or pants to prevent clothes from inadvertently becoming caught in a 
chain saw being used to cut a branch, or sturdy work boots required 
to be worn to provide ankle support and sole protection on rough 
terrain (Ex. 12: 10 pp. 2-3).

    In response to each of these concerns, OSHA has included language 
in the standard to explicitly exclude normal work clothing from the 
employer payment requirement. OSHA believes that this reflects the 
original intent of the proposal (See Section B below). Thus, if the 
protective equipment is used to comply with an OSHA standard, and is 
not exempted from payment by this standard, the employer must provide 
it at no cost to his or her employees. Otherwise, the employer is not 
required to pay for it. For example, hearing protectors are required to 
be provided in general industry and construction under the provisions 
Sec.  1910.95 and Sec.  1926.101, respectively. Therefore, employers 
are required to pay for hearing protection.
    On the other hand, dust masks and respirators that an employer 
allows employees to use under the voluntary use provisions of the Sec.  
1910.134 respiratory protection standard are not required to comply 
with an OSHA standard. Because of this, employer payment is not 
required.
    The NAA also raised the question of whether Section 5(a)(1) of the 
OSH Act would require the provision of PPE that would be subject to an 
employer payment requirement (Ex. 12: 10, p. 11).\2\ OSHA's PPE 
standards at Sec.  1910.132, Sec.  1915.152, Sec.  1917.95, Sec.  
1918.105, and Sec.  1926.95, already require employers to determine the 
PPE necessary for their work settings. OSHA is not aware of PPE that 
would protect against hazards subject to enforcement under the general 
duty clause that would not also be identified by such a determination. 
If there are any such hazards, then the PPE payment provisions of this 
standard would not apply since the provisions apply only to equipment 
used to comply with the Parts of OSHA's standards that this rule 
amends, not with section 5(a)(1) of the OSH Act.
---------------------------------------------------------------------------

    \2\ Section 5(a)(1) is the general duty clause of the Act, which 
requires employers to ``furnish to each of his employees employment 
and a place of employment which are free from recognized hazards 
that are causing or are likely to cause death or serious physical 
harm to his employees'' (29 U.S.C. 654).
---------------------------------------------------------------------------

    Although employer payment is not required when an item of PPE is 
not used to comply with an OSHA standard, OSHA encourages employers to 
pay for this PPE, given the safety benefits OSHA finds will accrue when 
employers are responsible for providing and paying for PPE.

B. Exceptions

1. Safety-Toe Protective Footwear and Non-Specialty Prescription Safety 
Eyewear
    The proposed rule included exemptions for safety-toe protective 
footwear, often called steel-toe shoes, and prescription safety 
eyewear. The proposal would have placed conditions on these exemptions: 
(1) The employer permits such footwear or eyewear to be worn off the 
jobsite; (2) the footwear or eyewear is not used at work in a manner 
that renders it unsafe for use off the jobsite; and (3) such footwear 
or eyewear is not designed for special use on the job (64 FR 15415). 
The final rule contains a similar condition; employers are not required 
to pay for these items when they are permitted to be worn off the 
jobsite.
    In the proposed rule, the Agency reasoned that safety-toe 
protective footwear should be exempted because it was sized to fit a 
particular employee and is not generally worn by other employees due to 
size and hygienic concerns; was often worn away from the jobsite; was 
readily available in appropriate styles; and was customarily paid for 
by employees in some industries (Id. at 15415). OSHA also noted that 
the 1994 policy memorandum exempted safety shoes from the employer 
payment requirement (Id.). The Agency proposed to exempt prescription 
safety eyewear because it also was very personal in nature, could 
generally be used by only one employee, and was commonly used away from 
work (Id.).
    Many commenters supported the proposed exceptions for safety-toe 
protective footwear and non-specialty prescription safety eyewear (See, 
e.g., Exs. 12: 4, 7, 9, 28, 111, 113, 117, 163, 184, 201). In a 
representative comment, BP-Amoco stated:

    BP-Amoco concurs with OSHA's approach to this topic in the 
proposed rule. These two items are different than other types of 
personal protective equipment in that they are individually fitted 
and the styling of these items is important to many employees. 
Therefore, eyewear and safety shoes should be excluded from a 
general requirement for employers to pay for personal protective 
equipment. We further agree that the three conditions associated 
with this exception are appropriate and should be retained without 
modification in the final rule (Ex. 12: 28).

    The Voluntary Protection Program Participants Association (VPPPA) 
added:

    As OSHA has proposed, it is reasonable for employees to pay for 
PPE that is used off the job as well as on (i.e. PPE that satisfies 
the proposed standard's 3 conditions) and it should be left to the 
employees and employer to reach an agreement for the purchase of 
this kind of PPE. Some facilities may decide it is in their best 
interest--for employee morale or other reasons--to pay for this 
equipment, but the decision should be voluntary (Ex. 12: 113).

    Other commenters strongly objected to any exceptions, and urged 
OSHA to require employers to pay for all types of PPE. Several stated 
that PPE is part of the hierarchy of controls, and while OSHA would not 
ask an employee to pay for a ventilation system, neither should it 
expect the employee to pay for any PPE (See, e.g., Exs. 12: 19, 12: 
100, 22A, 23, 25, 26A, 37, 100; Tr. 173-174, Tr. 241, Tr. 320, Tr. 366, 
Tr. 463-464).
    Some commenters expressed the opinion that the ``personal'' nature 
of certain types of PPE was not an appropriate basis for exempting the 
PPE from an employer payment requirement (Exs. 19, 23, 24A, 24B; Tr. 
278, Tr. 337, Tr. 342).
    In addition, there were a number of comments challenging the basis 
for

[[Page 64348]]

exempting safety-toe protective footwear and prescription safety 
eyewear because employees can and do use them off the job site (see, 
e.g., Exs. 22, 24B, 24C; Tr. 198-199, Tr. 264, Tr. 274, Tr. 280, Tr. 
356-358, Tr. 372-373). NIOSH, ISEA, and the United Auto Workers (UAW) 
argued that off-the-job use of PPE should not relieve employers of 
their obligation to pay for PPE and that employers should, in fact, 
encourage the use of PPE off the jobsite to promote safe behaviors of 
their employees (Exs. 12: 130, 230, 23; Tr. 72-73, Tr. 450, Tr. 598).
    After careful consideration of the comments, OSHA has decided to 
retain the exceptions for non-specialty safety-toe protective footwear 
and non-specialty prescription safety eyewear in the final PPE payment 
standard. The Agency believes that these two items have unique 
characteristics that continue to warrant exemption from employer 
payment.
    OSHA believes employers should not have to pay for non-specialty 
prescription safety eyewear for several reasons. Prescription safety 
eyewear is designed for the use of a single individual. Some of the 
employees who require such correction wear contact lenses, thus 
allowing them to wear non-prescription safety eyewear. Additionally, 
employers would rarely, if ever, be required under an OSHA standard to 
provide non-specialty prescription safety eyewear to their employees. 
The eye protection standards for each affected industry (Sec.  
1910.133, Sec.  1915.153, Sec.  1917.91, Sec.  1918.101, and Sec.  
1926.102) allow the employer the option of providing either appropriate 
prescription safety eyewear or alternate protection that can fit over 
an employee's regular prescription glasses, such as goggles or a face 
shield. Each standard specifies that the alternate protection must not 
disturb the adjustment or positioning of the spectacles. This 
requirement ensures that an employee's vision is not altered by the 
safety device, which could create an additional safety concern. While 
it is true that non-specialty prescription safety eyewear may be less 
cumbersome than items worn over eyeglasses, because non-specialty 
prescription safety eyewear is not the only PPE option for achieving 
adequate eye protection, and is designed for the use of a single 
individual, employers should not be required to pay for this 
protection. Therefore, OSHA is retaining the exemption for non-
specialty prescription safety eyewear in the final standard. 
(Prescription inserts for full-facepiece respirators and diving helmets 
are discussed later.)
    Unlike non-specialty prescription safety eyewear, the use of 
safety-toe protective footwear is clearly required by OSHA standards 
when employees are exposed to hazards that could result in foot 
injuries. However, OSHA has historically taken the position that 
safety-toe protective footwear has certain attributes that make it 
unreasonable to require employers to pay for it in all circumstances, 
as further discussed in Section XIV, ``Legal Authority''. Safety 
footwear selection is governed by a proper and comfortable fit. It 
cannot be easily transferred from one employee to the next. Unlike 
other types of safety equipment, the range of sizes of footwear needed 
to fit most employees would not normally be kept in stock by an 
employer and it would not be reasonable to expect employers to stock 
the array and variety of safety-toe footwear necessary to properly and 
comfortably fit most individuals.
    Furthermore, most employees wearing safety-toe protective footwear 
spend the majority of their time working on their feet, and thus such 
footwear is particularly difficult to sanitize and reissue to another 
employee. Other factors indicate as well that employers should not be 
required to pay for safety-toe protective footwear in all 
circumstances. Employees who work in non-specialty safety-toe 
protective footwear often wear it to and from work, just as employees 
who wear dress shoes or other non-safety-toe shoes do. In contrast, 
employees who wear specialized footwear such as boots incorporating 
metatarsal protection are likely to store this type of safety footwear 
at work, or carry it back and forth between work and home instead of 
wearing it. As explained in detail in the Legal Authority section, OSHA 
does not believe that Congress intended for employers to have to pay 
for shoes of this type.
    For all of these reasons, OSHA has decided to continue to exempt 
non-specialty safety shoes from the employer payment requirement. OSHA, 
however, also wants to make clear that this exemption applies only to 
non-specialty safety-toe shoes and boots, and not other types of 
specialty protective footwear. Any safety footwear that has additional 
protection or is more specialized, such as shoes with non-slip soles 
used when stripping floors, or steel-toe rubber boots, is subject to 
the employer payment requirements of this standard. Put simply, the 
exempted footwear provides the protection of an ordinary safety-toe 
shoe or boot, while footwear with additional safety attributes beyond 
this (e.g., shoes and boots with special soles) fall under the employer 
payment requirement. (OSHA also notes that normal work boots are 
exempted from employer payment under a different provision of the final 
rule, discussed later in this section.)
    Finally, the rule essentially retains the conditions for the 
exceptions contained in the proposal, although OSHA has tried to 
simplify them in the regulatory text. The rule states that the employer 
is not required to pay for non-specialty safety-toe protective footwear 
(including steel-toe shoes or steel-toe boots) \3\ and non-specialty 
prescription eyewear, provided that the employer permits such items to 
be worn off the jobsite. The term ``non-specialty'' is used to indicate 
that the footwear and eyewear being exempted is not of a type designed 
for special use on the job (e.g., rubber steel-toe shoes). This is 
consistent with the condition in the proposed rule that the equipment 
not be ``designed for special use on the job.'' The final rule also 
incorporates the condition from the proposed rule that requires the 
employer to pay for PPE that is not permitted to be used off the job.
---------------------------------------------------------------------------

    \3\ The parenthetical phrase ``including steel toe shoes or 
steel-toe boots'' is included since this terminology is commonly 
used in reference to non-specialty safety-toe protective footwear.
---------------------------------------------------------------------------

    The proposed regulatory text also contained an employer payment 
condition for footwear or eyewear based on whether its use at work 
renders it unsafe for use off the jobsite. The Agency is concerned that 
this condition could be construed as creating a general requirement 
that contaminated equipment remain on-site. While this is a prudent 
practice in many instances, and a requirement in some substance-
specific standards, making this a general requirement under the Parts 
amended by this rule is outside the scope of this rulemaking. OSHA also 
believes that an explicit condition for contaminated equipment is 
unnecessary. The final rule, like the proposal, requires employer 
payment if the employer does not permit the employee to take that 
equipment off the jobsite for any reason. Reasons for not permitting 
removal from the jobsite can include a requirement in an OSHA standard 
that such equipment not be taken off site because it is contaminated or 
an employer policy that contaminated equipment remain in a special area 
at the worksite. Because of this, OSHA does not believe it is necessary 
to include a separate condition related to contaminated PPE in the 
final rule.

[[Page 64349]]

2. Everyday Work Clothing and Weather-Related Items
    In the regulatory text of the final rule, OSHA is also specifically 
exempting everyday work clothing and ordinary clothing/items used 
solely for protection from the weather. OSHA did not intend to cover 
these items in the proposed rule. A number of commenters to the 
rulemaking record, however, questioned whether these items would be 
covered and requested that OSHA clarify its position (See, e.g., Exs. 
45: 28, 48; 46: 44; 12: 16, 55, 129). OSHA has determined that 
additional clarity was needed in the regulatory text regarding payment 
for everyday clothing and ordinary clothing used solely for protection 
from weather and has therefore made these exceptions explicit in the 
final regulatory text.
    As explained in the Legal Authority section, OSHA does not believe 
that Congress intended for employers to have to pay for everyday 
clothing and ordinary clothing used solely for protection from the 
weather. While serving a protective function in certain circumstances, 
employees must wear such clothing to work regardless of the hazards 
found. OSHA is exercising its discretion through this rulemaking to 
exempt jeans, long sleeve shirts, winter coats, etc., from the employer 
payment requirement. As stated, this is consistent with OSHA's intent 
in the proposal and is also supported by the rulemaking record. A 
number of commenters stated that OSHA should exempt these items from 
the employer payment requirement (See, e.g., Exs. 12: 10, 16, 28, 55, 
117, 129, 210, 222).
    Thus, OSHA is not requiring employers to pay for everyday clothing 
even though they may require their employees to use such everyday 
clothing items such as long pants or long-sleeve shirts, and even 
though they may have some protective value. Similarly, employees who 
work outdoors (e.g., construction work) will normally have weather-
related gear to protect themselves from the elements. This gear is also 
exempt from the employer payment requirement.
3. Logging Boots and Items in Other OSHA Standards
    Under the final rule, the employer would not have to pay for 
logging boots required in 29 CFR 1910.266(d)(1)(v) (61 FR 15403). In 
the final logging standard, OSHA concluded that logging boots should be 
exempt from an employer payment. The final standard recognizes this 
exemption, as did the proposed rule. While some commenters suggested 
the exception should be eliminated, citing the same reasons given above 
for eliminating the exception for non-specialty safety-toe protective 
footwear, the submitted information has not convinced the Agency that 
employer payment for logging boots is necessary. This is particularly 
true given the extensive rulemaking record developed in support of the 
exemption during the rulemaking for the logging standard.
    In addition to the provisions of the final rule clarifying the PPE 
that is not subject to the employer payment requirement, OSHA has added 
a regulatory note to each of the affected standards to make it clear 
that when the provisions of another OSHA standard specify whether or 
not the employer must pay for specific equipment, the payment 
provisions of that standard shall prevail. This approach provides for 
Agency determinations in future rulemakings that certain PPE should be 
specifically included or excluded from the PPE payment rule.
    Table V-1 provides examples of PPE and other items that an employer 
is not required to pay for under the specific exceptions included in 
the standard. This table is intended to assist in identifying items 
exempt from the employer payment requirement. However, it should not be 
construed to be an all-inclusive list.

 Table V-1.--Examples of PPE and Other Items Exempted From the Employer
                          Payment Requirements
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Non-specialty safety-toe protective footwear (e.g., steel-toe shoes/
 boots).
Non-specialty prescription safety eyewear.
Sunglasses/sunscreen.
Sturdy work shoes.
Lineman's boots.
Ordinary cold weather gear (coats, parkas, cold weather gloves, winter
 boots).
Logging boots required under Sec.   1910.266(d)(1)(v).
Ordinary rain gear.
Back belts.
Long sleeve shirts.
Long pants.
Dust mask/respirators used under the voluntary use provisions in Sec.
 1910.134.
------------------------------------------------------------------------

C. Other Items Raised in the Rulemaking Record

    If a particular item of PPE is used to comply with OSHA standards, 
and does not fall under the PPE standard's exceptions, then this PPE 
standard requires the employer to provide the item to his or her 
employees at no cost to the employees. OSHA solicited comment on 
several items in the preamble to the proposed standard, and commenters 
raised issues with several other items. The following discussion deals 
with each of these items, including prescription eyewear inserts in 
respirators, uniquely personalized components of personal protective 
equipment, welding PPE, metatarsal foot protection, equipment used by 
electric utility employees, and fabric or leather work gloves.
1. Prescription Eyewear Inserts in Respirators
    Issue eight of the preamble to the proposed PPE payment standard 
asked for comment on specialized respirator inserts, as follows:

    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? (64 FR 15416).

    OSHA received no substantive adverse comment on employer payment 
for this equipment. Commenters offered a number of observations and 
recommendations, however, including that the employer should pay for 
all components needed to ensure the effectiveness of the PPE (Ex. 12: 
134, 190, 218), the eyewear is part of the respirator (12: 134, 218), 
and the employer should pay for lenses and hardware, but the employee 
should pay for the doctor's exam (Ex. 12: 51). The ISEA noted that 
full-facepiece respirator inserts:

[s]hould be supplied and paid for by the employer * * * A full-
facepiece respirator insert costs roughly $50-$100, depending on the 
prescription (single, bifocal, etc.), the material (polycarbonate, 
etc.), and the fitting-delivery system used (Ex. 12: 230).

    Additional comment on respirator inserts was provided by the ASSE, 
which stated that: ``[m]ost prescription safety eyewear will fit into a 
full-face respirator with the appropriate mounts. We are aware of some 
circumstances when an additional specific frame had to be ordered to 
work with such a facemask. Most of our members commented that from 
their experience, most employers would pay for the additional product 
in such a situation'' (Ex. 12: 110). Blais Consulting offered a 
somewhat different view, stating that:


[[Page 64350]]


    Full face respirators do present a problem with spectacles as 
the temples frequently will break the face-to-face piece seal and 
greatly reduce the protection afforded by the respirator. * * * I 
concur with OSHA that it is appropriate for the employer to provide 
and pay for the special-use prescription glasses to use inside the 
respirator face piece as the spectacle must be worn to fulfill the 
requirements for the 29 CFR 1910.134 Respiratory Protection Standard 
and is not of a street-wear type spectacle (Ex. 12: 233).

    Dow noted that:

[w]here full face respirators are required to be worn on the job, it 
is reasonable for the employer to pay for prescription glasses to be 
worn. OSHA allows the use of contact lenses when a full face 
respirator is worn. Dow does not believe that this regulation should 
be construed to require the employer provide contact lenses for 
employees who also happen to wear respirators on the job (Ex. 12: 
129).

    Corrective eyewear is necessary for the employee to see clearly in 
order to safely perform his or her job, yet not all employees who 
require vision correction and use full facepiece respirators wear 
contact lenses. A major concern with a full facepiece respirator is 
that the seal between the employee's face and the respirator must not 
leak. If it does, then the respirator will not provide the intended 
protection. Therefore, items that pass under the seal, such as the 
temple pieces of prescription glasses, break the face to facepiece 
seal. If the employee's prescription glasses cannot be fitted into the 
respirator without compromising the seal, then there is no alternative. 
Special lenses will be needed to protect the employee, and they must be 
provided at no cost to that employee. OSHA has determined that when 
special-use prescription lenses must be used or mounted inside the 
respirator facepiece, employers must pay for the lenses / inserts.

2. Components of Personal Protective Equipment

    Issue ten of the preamble to the proposed PPE payment standard 
asked for comment on PPE components, such as shoe inserts, head 
coverings used under welding helmets and custom prescription lens 
inserts worn under a welding helmet or a diving helmet (64 FR 15416).
    A number of commenters supported employer payment for components in 
some circumstances. Various commenters suggested that employers should 
pay because the only function of the component is to protect the 
employee from workplace hazards (See, e.g., Exs. 12: 190, 218). The 
ISEA remarked that:

[e]mployers have an obligation to properly protect employees from 
all occupational hazards. If uniquely personalized components of PPE 
are protective in nature-such as winter liners for hardhats-then 
employers should pay for them. Employers should pay for custom 
prescription lens inserts used under a welding helmet because safety 
glasses should be worn when welding. It is not functional to wear 
street prescription glasses, a protective goggle and a welding 
helmet. All equipment necessary for employees to adequately perform 
their jobs should be paid for by the employer (Ex. 12: 230).
    The UFCW raised the issue of shoe inserts, remarking that:
    Shoe inserts, as personal protective equipment, are a control 
method for alleviating the hazard of standing for prolonged periods 
of time on hard surfaces. The United Auto Workers, through workplace 
surveys, has recently documented the need for shoe inserts for their 
members who work in the ``big three'' auto plants and stand all day. 
In fact, collective bargaining agreement language requires that the 
employer provide inserts, free of charge, to workers who need them.
    Anti-fatigue mats are common in retail food stores, and in some 
manufacturing plants. These are provided by the employer to address 
this hazard, an acknowledgment on the part of the employer that this 
hazard does exist. As anti-fatigue mats are provided at no cost to 
provide some support and relief of the lower extremities and lower 
back, so should shoe inserts. In fact, shoe inserts can be used 
where anti-fatigue mats cannot, such as in locations in meat and 
poultry plants where they are impractical or a sanitation problem. 
Shoe inserts are also more practical for jobs which may require some 
walking or moving from one location to another, as the mats are 
stationary and do not move with the worker (Ex. 41).

    Others stated that the employer should pay up to the basic cost of 
the minimum PPE (See, e.g., Ex. 12: 228); the employer should pay if it 
is PPE (See, e.g., Ex. 12: 32); and the employer should pay ``[i]f it 
cannot stand on its own use'' (Ex. 12: 52).
    Still other commenters raised items or situations where they 
believed the employee, not the employer, should pay for the equipment. 
The reasons behind these comments include: The employee should pay if 
the item is personal in nature, such as shoe inserts (Ex. 12: 3); the 
employee should pay because this equipment is too personal (Ex. 12: 
19); and employers should not be required to pay for equipment that is 
personal in nature and goes beyond what is required for employee safety 
(Ex. 12: 65). Douglas Battery remarked that:

    In a related issue, employers should have the option of electing 
not to provide or reimburse employees for PPE which is personal in 
nature. An example of ancillary ``equipment'' which is personal in 
nature, but not required for safety, would include custom insoles 
for safety shoes which are not required in writing by a physician as 
a ``reasonable accommodation'' to performing the assigned job (Ex. 
12: 3).

    The question of when to require employer payment for PPE components 
and inserts is not easy to resolve due to their wide variety. However, 
the comments of ORC suggest a reasonable solution to the problem. ORC 
commented:

    The employer should be required to provide and pay for PPE that 
is adequate to protect an employee from the workplace hazards 
identified. If a personalized component is necessary in order for 
the PPE to provide adequate protection, it is not something that is 
typically worn or used off the worksite and meets the criteria 
proposed [by ORC] for exception of personal items, it should be the 
employer's responsibility to provide it and pay for it. However, if 
the protection afforded by the PPE is not compromised by not 
providing the personalized component, the employer should be under 
no obligation to pay for the personalized component (Ex. 12: 222).

    OSHA has decided to adopt the basic approach put forward by ORC. If 
the component is needed for the PPE to adequately protect the employee 
from the workplace hazard the PPE is designed to address, the employer 
must pay for it, provided the PPE does not fall within one of the 
exceptions listed in the final rule. For example, if prescription 
lenses are needed so an employee can wear a diving helmet to do his or 
her job, then the prescription lenses must be provided at no cost by 
the employer. This approach is the same as that taken in the standard 
for prescription lens inserts for full facepiece respirators.
    However, if the component is not needed for the PPE to provide 
adequate protection, then the employer would not be required to pay for 
the component. For example, employers would not be required to pay for 
shoe inserts to prevent fatigue because the inserts are not needed for 
the PPE to perform as designed. In addition, if the PPE in which the 
component is placed is otherwise exempted from the final rule, the 
employer is not required to pay for the component. Thus, employers 
would not be required to pay for cold weather inserts worn under 
raincoats, because raincoats are otherwise exempt from employer 
payment.
    OSHA also notes that if the component is needed for the PPE to fit 
the employee properly, then the employer is required to provide the 
item at no cost to the employee. The various general PPE standards 
require the employer to provide properly fitting PPE, and if it does 
not fit properly it will

[[Page 64351]]

not have the protective value it was designed to provide. Therefore, 
payment for items needed to make PPE fit properly is required.
    Finally, although it may seem self-evident, personalized components 
or add-ons that do not affect safety are not covered by the final 
standard. For example, items chosen for aesthetic features (e.g., 
logos, color, style) that have no additional safety purpose do not fall 
under the employer payment requirements.
3. Metatarsal Protection
    While the non-specialized safety-toe protective footwear that is 
exempted from the PPE payment requirements contains a protective device 
for the toes, metatarsal protection is designed to protect the top of 
the foot from the toes to the ankle over the instep of the foot. This 
protection is required by the OSHA standards when there is a potential 
for injury to that part of the foot from impact or compression hazards 
that could occur, for example, from handling heavy pipes, or similar 
activities where loads could drop on or roll over an employee's feet. 
Metatarsal protection is available both as an integrated part of the 
footwear, and as a guard that can be attached to a shoe or boot to 
provide protection.
    OSHA did not exempt metatarsal protection from the employer payment 
requirement in the proposed rule. In its introductory remarks at the 
informal public hearing, OSHA explained that ``* * * 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 reissue metatarsal 
guards and cut-resistant footwear to subsequent employees'' (Tr. 19-
20).
    A number of commenters suggested that metatarsal shoes should be 
exempted from the employer payment requirement (See, e.g., Exs. 12: 66, 
149, 155, 222, 235). Caterpillar, Inc. offered several reasons why 
metatarsal shoes should be exempted, stating:

    Virtually all metatarsal shoes with integral guards are personal 
in nature and belong to an individual employee. * * * OSHA states a 
belief that there is little statutory justification for requiring 
employers to pay for personal protective equipment if it is used 
away from the workplace and if three proposed conditions are met. 
The third condition contains an assumption that if `the footwear has 
built-in metatarsal guards as well as safety-toes, it could not be 
worn off-site', which is not a valid assumption. Employees do wear 
their metatarsal shoes off-site (Ex. 12: 66).

    The Specialty Steel Industry of North America (SSINA) remarked:

    SSINA member companies are committed to employee safety and 
health, and provide and pay for all types of personal protective 
equipment (``PPE''). Although SSINA supports the proposed rule in 
general, the association is concerned about the absence of a 
provision allowing payment terms for metatarsal shoes to be 
negotiated through collective bargaining agreements. Because of the 
importance of these shoes to specialty steel workers, the payment 
terms for this type of protective footwear are generally specified 
in collective bargaining agreements negotiated with labor unions. 
SSINA believes that the proposed PPE rule prohibits this process 
(12: 1498).

    Consolidated Edison Company of New York, Inc. asked OSHA to clarify 
in the final rule that employers are not required to pay for shoes with 
metatarsal protection if the employer offers, free of charge, foot 
guards to be worn over regular safety footwear (Ex. 12: 155).
    In the final standard, OSHA has decided not to exempt metatarsal 
protection from the PPE payment provisions. OSHA disagrees with those 
commenters who suggested that metatarsal protection is ubiquitous and 
is frequently worn by employees away from the worksite. Several hearing 
participants testified that this footwear is not normally worn off site 
(Tr. 203; 349; 390-391). Specifically, Jacqueline Nowell of the UFCW 
referenced a court decision requiring the employer to pay for 
metatarsal support boots. The judge based his finding on testimony that 
``99 percent of the employees use their boots exclusively for work'' 
(Tr. 203). When asked about his experiences with employees wearing 
shoes with metatarsal guards off site, William Kojola of the AFL-CIO 
testified, ``I'm not aware of any, in my own experience aware of any 
circumstance where a worker would actually use that piece of equipment 
offsite'' (Tr. 349). Mr. Kajola continued that this was his experience 
regardless of whether the guard was built into the footwear or put on 
as a separate piece. After considering the comments, OSHA remains 
convinced that metatarsal protection is a specialized form of foot 
protection. In addition, OSHA has historically not exempted metatarsal 
protection from an employer payment requirement.
    In the final standard, however, OSHA is making clear that employers 
may provide metatarsal guards to their employees to protect against 
hazards and are not required to provide metatarsal protection that is 
integrated in the shoe. The United Steelworkers Union recommended that 
removable metatarsal guards be banned, asserting that ``The removable 
metatarsal guard does not provide the needed protection that is 
provided by the built-in metatarsal guard that was designed for the 
specific shoe that it was attached to.'' (Tr. 378-379).
    While OSHA appreciates the comment from the USWU, this rulemaking 
is limited to issues of PPE payment, and not the adequacy of certain 
types of PPE. OSHA's long-standing policy is that when conditions at 
the workplace require metatarsal protection, adequate protection can be 
achieved through the proper use of metatarsal guards. If the employer 
requires employees to wear metatarsal shoes or boots, the employer is 
required to pay for them. However, the final standard stipulates that 
when the employer provides metatarsal guards and allows the employee, 
at his or her request, to use shoes or boots with built-in metatarsal 
protection, the employer is not required to pay for the metatarsal 
shoes or boots. In this circumstance, the final standard does not 
prohibit employers from contributing to the cost of metatarsal shoes or 
boots should they choose to do so. Some employers currently offer their 
employees a choice between using a metatarsal guard provided and paid 
for by the employer or a metatarsal shoe or boot with some portion of 
the cost of the shoe or boot paid for by the employer, essentially 
establishing an allowance system. This practice is not prohibited by 
the rule, as described in the Acceptable Methods of Payment section 
below.
4. Welding Leathers
    Issue six of the preamble to the proposed PPE payment standard 
requested comment on PPE employers provide to welders to protect them 
from welding hazards, such as molten metal. Specifically, the Agency 
asked: ``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?'' (64 FR 15416).
    A number of commenters, many from the shipyard industry, 
recommended that OSHA exempt welding PPE from the employer payment 
requirement (See, e.g., Exs. 7, 29, 32, 39, 65, 112, 228; 45: 52; 46: 
32) indicating that it has been customary for welders in some 
industries to provide their own PPE. For example, a representative from 
the Shipbuilders Council of America (SCA) stated that:

    Tools of the trade for welding operations, such as face shields/
goggles, fire resistant

[[Page 64352]]

shirts/jackets, sleeves and leather gloves have predominantly been 
provided by the employee because of the equipment's personal nature. 
The industry considers these to be tools of the trade because it is 
neither feasible for a different employee to wear the welders' 
gloves and leathers each day for hygienic reasons, nor is it 
feasible that upon resigning from the position that an employee will 
leave the leathers behind to be worn by another individual (Ex. 46: 
32).

    Other commenters stated that an exception for welding PPE was not 
needed (Ex. 12: 9, 17, 32, 134, 172, 190, 191, 218, 233; 45: 27). Shell 
Offshore, Inc. stated that ``* * * [a] problem could result if 
employees were expected to pay for welding PPE. The problem being that 
by requiring employees to pay for PPE may discourage use of PPE, or 
result in use of ineffective PPE'' (Ex. 12: 9). The International Union 
of Operating Engineers (IUOE) remarked that they ``* * * do not believe 
that there are unique problems relating to welding PPE. Workers do not 
generally pay for welding PPE. All welding PPE should be supplied by 
employers'' (12: 134). The National Association of Home Builders (NAHB) 
stated that ``Employers customarily pay for the PPE that is required 
for welding, including gloves, aprons, and face shields'' (Ex. 12: 
212). Testimony of members of the Maritime Advisory Committee for 
Occupational Safety and Health (MACOSH) also indicated that other 
maritime employers provide and pay for welding PPE; consequently, 
MACOSH declined to make a recommendation to OSHA on whether such PPE 
should be exempted from a payment requirement (69 FR 41223).
    OSHA has decided not to exempt welding equipment from the employer 
payment provisions of the final standard. All of the equipment 
mentioned is clearly PPE, and the comments are inconsistent as to 
whether or not this equipment has any special qualities that would 
warrant an exception. The most common concern is that welders in some 
industries have customarily supplied their own personal protective 
equipment. OSHA has determined that this is not an adequate basis to 
exempt PPE. To the extent that these individuals are independent 
contractors and not employees covered by the OSH Act, the standard does 
not apply to them. Further, as noted in the employee-owned PPE section 
of this preamble, employers may allow employees to bring PPE they 
already own to work, and are not required to reimburse the employee for 
that PPE. Thus, if a welder voluntarily brings his or her own PPE to 
the worksite, and the employer ensures that it is appropriate for the 
work to be performed, then the employer is not required to provide the 
PPE at no cost to that employee.
5. Non-Specialty Fabric or Leather Work Gloves
    Many commenters stated that non-specialty fabric or leather work 
gloves should be excepted from the employer payment requirement (See, 
e.g., Exs. 12: 6, 7, 17, 19, 29, 55, 68, 91, 109, 111, 112, 129, 163, 
171, 172, 183, 217, 221, 222). Southwestern Bell (Ex. 12: 6) agreed 
that more specialized gloves should be provided and paid for by the 
employer, but stated that ``[w]e feel that everyday work gloves made of 
fabric and/or leather do meet those conditions because they can be worn 
off the job; they are not used in a manner that renders them unsafe for 
work off the job; and they are not designed for special use. Thus, we 
consider them to be personal in nature'' (Ex. 12: 6). The NAHB added 
that ``Many types of gloves can be used for personal use. Unless it's a 
very special glove, such as welding or wire-mesh gloves, these should 
be considered as an exception'' (Ex. 12: 212).
    The Stevedoring Services of America (SSA) and the National Maritime 
Safety Association (NMSA) remarked that regular work gloves meet the 
intent of the proposed exemptions because they are purchased by size, 
are available in a variety of styles and are frequently worn off the 
job (Exs. 12: 17, 172). They also commented that most regular work 
gloves cannot be cleaned and sterilized and therefore cannot be worn by 
more than one employee (Id.). Specifically they stated that ``[r]egular 
work gloves, like safety shoes, certainly meet the intent of the 
Secretary's interpretation'' and continued with the reasoning that:

    1. Regular work gloves are purchased by size.
    2. Regular work gloves are available in a variety of styles.
    3. Regular work gloves are frequently worn off the job.
    4. It is not feasible that each day an employee wears regular 
work gloves that have been worn by another employee.
    5. It is not feasible that upon resigning from a position that 
an employee leave regular work gloves behind for another employee to 
wear.
    6. It is almost impossible to clean and sterilize most regular 
work gloves that have been previously worn.
    7. The cost of issuing regular work gloves on a daily basis to 
thousands of dock workers nationwide would be extremely expensive to 
the employer (Id.).

    The American Trucking Association recommended that OSHA exempt from 
employer payment non-specialty gloves that meet the same three 
conditions as those proposed for safety-toe shoes. The recommendation 
is based on the fact that such PPE is also often allowed to be used 
off-site by employees (Ex. 12: 171).
    In the final standard, OSHA is requiring employer payment for work 
gloves when they are used for protection against workplace hazards. 
Thus, when used as PPE--to protect employees from such hazards as 
lacerations, abrasions, and chemicals--employers must provide them at 
no cost. This is consistent with the position OSHA has taken in the 
past with this important form of protection.
    Furthermore, OSHA does not believe that gloves are similar to the 
other exempted items in the standard. Gloves may be distinguished from 
general work shoes and boots. Gloves are normally manufactured in only 
a few sizes. While gloves worn for a long period by one employee may 
become soiled, abraded, and so forth, they generally are not considered 
to be as highly personal in nature or in the same manner as footwear. 
Wear patterns of footwear differ between individuals resulting in a fit 
that may not conform to another individual's foot or gait. Gloves, 
however, can normally be worn by another employee. Finally, as opposed 
to work boots and shoes, many forms of gloves can be laundered and 
sanitized and used by more than one employee.
6. Electrical PPE
    Table 1 of the preamble to the proposal listed a number of PPE 
items required by OSHA standards, including flame resistant jackets and 
pants (64 FR 15408). As a result, several comments were received 
regarding the issue of prohibited clothing in OSHA's power generation 
and transmission standard at Sec.  1910.269(l)(6). That standard 
specifically requires the employer to ensure that each employee who is 
exposed to the hazards of flames or electric arcs does not wear 
clothing that, when exposed to flames or electric arcs, could increase 
the extent of injury that would be sustained by the employee. It 
further notes that clothing made from acetate, nylon, polyester, or 
rayon is prohibited unless the employer can demonstrate that the fabric 
has been treated to withstand the conditions that may be encountered or 
that the clothing is worn in a manner that eliminates the hazard. One 
method of meeting the requirements of Sec.  1910.269, but not the only 
method, is for employers to require their employees to wear flame 
resistant clothing (FR clothing). This clothing is specifically 
designed to protect employees exposed to various levels of

[[Page 64353]]

heat energy from sustaining severe burn injuries in areas covered by 
the clothing.
    A number of comments were received from electric utility employers, 
who stated that FR clothing is not PPE (See, e.g., Exs. 12: 107, 114, 
133, 150, 183, 201, 206, 221), that OSHA should exclude FR clothing 
from employer payment requirements (See, e.g., Exs. 12: 16, 133), and 
that requiring employers to pay for FR clothing would conflict with 
previous interpretations by OSHA (See, e.g., Exs. 12: 114, 133, 150, 
206, 221). In a representative comment, the Edison Electric Institute 
(EEI) remarked:

    EEI is also concerned that compliance officers may inadvertently 
classify the apparel/clothing requirement under Sec.  1910.269(l)(6) 
of the Electric Power Generation, Transmission and Distribution 
standard as personal protective equipment. Classification of 
apparel/clothing as PPE would be inconsistent with OSHA's current 
position stated in two interpretation letters. * * * In both of 
these interpretation letters it is stated that the apparel standard 
is not a PPE requirement. * * * EEI requests that OSHA state in the 
preamble of the final standard that the apparel/clothing required 
under Sec.  1910.269(l)(6) of the Electric Power Generation, 
Transmission and Distribution standard is not personal protective 
equipment. This statement would avoid disagreements of 
interpretations after the rule is finalized (Ex. 12: 150).

Duke Energy suggested that OSHA ``[c]learly specify that flame 
retardant apparel is not considered personal protective equipment'' 
(Ex. 12: 133).

    OSHA's existing clothing requirement in Sec.  1910.269 does not 
require employers to protect employees from electric arcs through the 
use of flame-resistant clothing. It simply requires that an employee's 
clothing do no greater harm. The use of certain heavy-weight natural 
fiber materials, such as cotton, is allowed where the employer can 
assure that the clothing will not contribute to injury to the employee. 
Thus, the clothing requirement in Sec.  1910.269 does not mandate 
employers provide any particular type of PPE to their employees and the 
payment requirement in this final rule would not apply to clothing 
permitted by Sec.  1910.269.
    It should be noted that the issue of whether FR clothing should be 
required by Sec.  1910.269 is currently being considered by the Agency 
in a separate rulemaking to revise the electric power generation, 
transmission and distribution standard (70 FR 34822-34980, June 15, 
2005). The preamble discussion for the proposed Sec.  1910.269 revision 
included a full discussion of FR clothing in the electric utility 
industry and asked for specific public comment on this issue (70 FR 
34866-34870). If OSHA determines in that rulemaking that FR clothing is 
required, it will then become subject to the PPE payment provisions of 
this rule, unless the final Sec.  1910.269 and Part 1926 Subpart V 
standards specifically exempt FR clothing from employer payment.
    Several electrical contracting and power companies also recommended 
exemptions for certain pole climbing equipment (See, e.g., 12: 16, 38, 
144, 161, 183, 206, 221; 46: 49). For example, the National Electrical 
Contractors Association (NECA) commented that

[b]ody belts and straps for climbing poles and towers, climbing 
hooks, flame resistant clothing, and personal apparel of all 
description and usages should also be exempted from the final rule 
for the contracting electric power industry. These vary in design 
and material, have always been very much subject to personal 
preference and are not universally transferable from employee to 
employee'' (Ex. 12: 16).

    In response to OSHA's request for comment on how a general 
requirement for employer payment for PPE should address the types of 
PPE that are typically supplied by the employee, taken from job site to 
job site or from employer to employer, (69 FR 41221 (July 8, 2004)), a 
number of electrical contractors submitted identical comments 
suggesting that several types of electrical safety equipment should be 
exempted from employer payment (See, e.g., Exs. 45: 6, 7, 8, 9, 10, 11, 
12, 14, 15, 16, 19, 20, 22, 23, 24, 29, 31, 37, 38, 41, 44, 45, 46, 47; 
46: 21, 22, 23, 24, 25, 26, 27, 28, 29). They remarked that employers 
in general should pay for PPE used by their employees, but recommended 
OSHA provide exemptions for the following items:

    1. Protective clothing as listed in NFPA 70E Table 130.7 (C)(10) 
for all Hazard/Risk Categories 2 and lower.
    2. Protective equipment as listed in NFPA 70E Table 130.7 C (10) 
for all Hazard/Risk Categories 2 and lower. (Except for the 
equipment listed in FR Protective equipment subpart ``e'').
    3. Voltage rated gloves required for work in NFPA 70E Hazard/
Risk Categories 2 and lower.
    4. Tools the employee is required to purchase, by an agreement 
between the employer and the employee, that are required by NFPA 
70E, Hazard/Risk Categories 2 and lower, to be voltage 
rated.

    This particular equipment was included in a table in the National 
Fire Protection Association (NFPA) 70E Electrical Safety Code. Table 
130.7(C)(9)(a) of the Electrical Safety Code lists equipment that is to 
be used when working on various types of electrical systems, which are 
classified into four hazard/risk classes. OSHA wants to make clear that 
this equipment would only be covered by the final rule in those 
instances where it is required by OSHA standards.
    The first item noted by these commenters is fire retardant 
clothing, as discussed above. The second item includes a variety of 
PPE, including hard hats, safety glasses or goggles, arc-rated face 
shields, hearing protection, leather gloves, and leather work shoes. 
Within the second item, except for leather work shoes, these items are 
required by Sec.  1910.335 and other OSHA standards (depending on the 
exposures encountered) and are subject to the PPE payment provisions. 
Item three includes voltage rated gloves used to handle electrically 
charged lines. This is clearly a specialized item that employees are 
not required to purchase. As required by Sec.  1910.137, employers must 
inspect and test the gloves at regular intervals to ensure their 
continued integrity, and they are so critical to the protection of 
employees performing this work that leather gloves are worn over them 
to prevent abrasions and holes that could compromise their integrity. 
Therefore, employers are required to provide them at no cost to their 
employees. The fourth item includes insulated hand tools such as 
pliers, screwdrivers, diagonal cutters and wire strippers. As discussed 
previously, the Agency has concluded that electrically insulated tools, 
while not considered to be PPE for the purpose of this standard, are a 
protective control measure and the employer must pay for them.
    Table V-2 provides examples of PPE items that an employer is 
required to provide at no cost to employees under the final PPE payment 
standard. As with Table V-1, this table is not an exhaustive list of 
PPE that employers must provide to their employees at no cost.

   Table V-2.--Examples of PPE for Which Employer Payment Is Required
                [If used to comply with an OSHA standard]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Metatarsal foot protection.
Special boots for longshoremen working logs.
Rubber boots with steel toes.
Shoe covers--toe caps and metatarsal guards.
Non-prescription eye protection.
Prescription eyewear inserts/lenses for full face respirators.
Prescription eyewear inserts/lenses for welding and diving helmets.
Goggles.
Face shields.
Laser safety goggles.
Fire fighting PPE (helmet, gloves, boots, proximity suits, full gear).

[[Page 64354]]

 
Hard hat.
Hearing protection.
Welding PPE.
Items used in medical/laboratory settings to protect from exposure to
 infectious agents (Aprons, lab coats, goggles, disposable gloves, shoe
 covers, etc).
Non-specialty gloves:
   Payment is required if they are PPE, i.e. for protection from
   dermatitis, severe cuts/abrasions.
   Payment is not required if they are only for keeping clean or
   for cold weather (with no safety or health consideration).
Rubber sleeves.
Aluminized gloves.
Chemical resistant gloves/aprons/clothing.
Barrier creams (unless used solely for weather-related protection).
Rubber insulating gloves.
Mesh cut proof gloves, mesh or leather aprons.
SCBA, atmosphere-supplying respirators (escape only).
Respiratory protection.
Fall protection.
Ladder safety device belts.
Climbing ensembles used by linemen (e.g., belts and climbing hooks).
Window cleaners safety straps.
Personal flotation devices (life jacket).
Encapsulating chemical protective suits.
Reflective work vests.
Bump caps.
------------------------------------------------------------------------

D. Replacement PPE

    Replacing PPE that is no longer functional is crucial to employee 
safety and health. OSHA finds that timely replacement of PPE is more 
likely to occur when the employer is responsible for bearing the cost. 
OSHA is requiring employers to not only pay for the initial issuance of 
PPE, but also its replacement, except when the employee has lost or 
intentionally damaged the PPE.
    In the proposed rule, OSHA did not include language in the 
regulatory text setting forth an employer's obligation to pay for 
replacement PPE. However, in the preamble to the proposal OSHA stated:

    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 (64 
FR 15414).

OSHA also noted that if an employee misuses or damages the PPE, the 
employer may ask the employee to pay for replacement:

    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 (64 FR 15415).

In these discussions, OSHA attempted to set the parameters for when the 
employer would be responsible for paying for replacement PPE (e.g., 
when the PPE wears out from ``normal wear and tear,'' ``occasional 
loss,'' etc.) and when the employer may request that the employee pay 
for the replacement (e.g., ``[r]egularly and with unreasonable 
frequency loses or damages the PPE''). This position was also 
consistent with the past positions OSHA has taken on the issue of 
employer payment for replacement PPE. For example, OSHA determined that 
the employer must bear the cost of replacing worn out hearing 
protectors required under the occupational noise exposure standard, 29 
CFR 1910.95, but stated its belief that employers should not have to 
pay for an unlimited supply of protectors or bear the expense in cases 
where an employee has been irresponsible (46 FR 4078, 4153-4154 (Jan. 
16, 1981)).
    While many commenters supported a general requirement that 
employers pay for replacement PPE (See, e.g., Exs. 12: 9, 51, 110, 113, 
116, 134, 141, 152, 188, 190, 222, 230, 233; Tr. 326, 376, 600, 631), 
there were two major issues raised by commenters regarding OSHA's 
position in the proposal. First, a substantial number of comments in 
the rulemaking record suggested that the proposed rule did not clearly 
set forth an employer's obligation to pay for replacement PPE. Many 
commenters urged the Agency to more clearly define those instances 
where an employer must pay for replacement PPE and those instances 
where it would be appropriate for employees to pay for the PPE. Several 
commenters suggested OSHA include specific regulatory language to 
address replacement PPE to clarify these issues, rather than simply 
dealing with the issue in the preamble (See, e.g., Exs. 12: 3, 58, 188, 
212; 46: 43). Second, commenters were concerned that OSHA's rule would 
prevent them from enforcing legitimate workplace rules regarding 
employee misuse and damage to PPE. OSHA addresses these issues below. 
OSHA also addresses comments in the record questioning acceptable 
replacement schedules and allowances.
1. Clarity
    Several commenters raised issues about the clarity of OSHA's 
position in the proposed rule on replacement PPE. The majority of the 
comments on the issue of employer payment for replacement PPE asked 
OSHA to clarify its statements in the proposal as to when employers 
would and would not be required to pay for replacement PPE. The 
comments received included a number from employers who expressed 
concern that they would be paying for an endless stream of PPE. These 
commenters noted the uncertainty of determining the meaning of ``normal 
wear and tear'' and ``occasional loss'' in the context of the wide 
variety of PPE that is required and used in various industries.
    A number of commenters suggested that OSHA should strictly define 
``regular loss'' or ``occasional loss'' that were used in the preamble 
to the proposal, in the final rule by specifying it as two, three, or 
four occurrences (See, e.g., Exs. 12: 14, 17, 41, 62, 87, 121, 143, 
167, 168, 212, 242). BP-Amoco recommended that ``The particulars of any 
case of occasional loss or damage are going to be unique to each case, 
and the resolution of who should be responsible to pay is best left up 
to the contractual agreement or grievance procedures in place between 
the employer and employee group. For OSHA to attempt to regulate this 
issue would require OSHA to define what is occasional loss and when 
employee conduct becomes negligent--something that is not possible or 
desirable'' (Ex. 12: 28).
    The Screenprinting & Graphic Imaging Association International 
(SGIA) also questioned the meaning of the term ``lost'':

    For example, an employee is wearing a pair of gloves while out 
on the loading dock as a shipment of ink is delivered. As the 
employee reaches for the load coming from the truck, one glove is 
pulled from the employee's hand, falls to ground and is blown away 
by the wind and cannot be found. In this instance, the PPE was not 
damaged, did not show normal wear and tear, yet requires 
replacement. The employee was not negligent, but the PPE is lost, 
and the employer should be responsible to pay for the replacement. 
If the same employee, however, were to have placed the gloves down 
on a table, walked off, then came back to find them missing, this 
can be seen as neglect and the employee pays for the replacement. 
Although these two examples are open for discussion, it shows that 
each worksite needs to make specific policies for what will 
constitute a lost item, and how to safe guard against abuse and 
negligence (Ex. 12-116, p. 2).


[[Page 64355]]


    Other commenters expressed concern about the proposed language 
addressing the duty to replace PPE that has been lost or damaged beyond 
``normal wear and tear.'' For example, ORC, Inc. recommended that:

    How an employer deals with replacement of PPE that is lost or 
damaged by employees beyond what would be expected through normal 
wear and tear, should be left to the employer's discretion'' (Ex. 
12: 222).

    In a comment that was echoed by approximately 60 associations of 
home builders, the Ohio Home Builders Association stated that:

    The proposed revision to the PPE standard does not allow 
employers much flexibility in how they manage safety and health on 
their jobsites. OSHA would require each employer to pay for all PPE 
used by employees with very few exceptions. 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. How are we to define ``regularly'' in these scenarios? (Ex. 12-
34).

    Furthermore, a large number of commenters recommended OSHA include 
regulatory language in the final rule to clearly articulate when an 
employer could require the employee to replace the PPE at his or her 
own cost (See, e.g., Exs. 12: 3, 21, 51, 58, 68, 79, 99, 101, 217; 46: 
43).
    OSHA has carefully considered these comments and has made changes 
to the approach in the proposed rule. First, OSHA has added new 
regulatory text to address specifically an employer's obligation to pay 
for replacement PPE. OSHA believes that because the issue of 
replacement PPE was not included in the regulatory text of the proposed 
rule, there was confusion amongst employers as to their precise 
obligations. By including replacement language in the regulatory text, 
OSHA believes that the rule will be clearer for employers and 
employees.
    Second, in formulating the regulatory text, OSHA determined that 
using ``normal wear and tear'' as a benchmark was unhelpful, given the 
wide variety of PPE covered by the rule and the wide variety of uses 
for the PPE. OSHA was concerned that relying on ``normal wear and 
tear'' could result in employers not providing required replacement PPE 
at no cost to employees. Furthermore, OSHA determined that the term 
``occasional loss'' was vague and could be subject to varying 
interpretations. OSHA thus determined that the rule would not rely on 
these terms, but would specify when employers are not required to bear 
the cost of replacement PPE. Thus, the rule requires employers to pay 
for replacement PPE, following the criteria in OSHA's existing 
standards governing when PPE must be replaced, except when the employee 
loses or intentionally damages the PPE.
    By excepting employer payment for all ``lost'' PPE, OSHA hopes to 
avoid the confusion caused by using the terms ``occasional loss'' in 
the proposal. ``Occasional loss'' lacks reasonable precision given the 
universe of circumstances in which a wide variety of PPE may be lost 
either at work or off of the worksite. For these reasons, this rule 
does not require employers to bear the cost of replacing PPE that the 
employee has lost, even if it is a single instance. In addition, the 
PPE may be considered ``lost'' if the employee comes to work without 
the PPE that has been issued to him or her.
    The employer is free to develop and implement workplace rules to 
ensure that employees have and use the PPE the employer has provided at 
no cost. For example, an employer may require employees to keep their 
PPE in a secured locker, or turn in the PPE at the end of the shift. 
Alternatively, employers may enter an agreement with the employee 
allowing the employee to take the PPE that the employer has provided at 
no cost to the employee off of the job site to use at home or for other 
employers. The agreement may stipulate that the employee is responsible 
for any loss of the PPE while it is off of the job site. The rule does 
not prohibit an employer from exercising his or her discretion to 
charge an employee for replacement PPE when the employee fails to bring 
the PPE back to the workplace.
    Furthermore, by setting forth in the regulatory text that employers 
can ask employees to pay for replacement PPE needed as a result of an 
employee intentionally damaging PPE, OSHA is addressing the concerns of 
many commenters that the proposed rule would have required employers to 
pay for replacement PPE damaged due to employee misconduct (See, e.g., 
Exs. 12: 21, 44, 58, 68, 79, 101, 152, 154, 165, 172, 182, 203, 210, 
212, 228; Tr. 154, 549; 46: 23). OSHA wants to make clear, however, 
that the exception only applies when the damage was intentional. 
Accidental damage of the PPE by the employee does not qualify for the 
exception.
    Finally, OSHA emphasizes that the final rule only requires the 
employer to pay for PPE that is used to comply with the Parts that the 
rule amends. Employers are not required to pay to replace PPE that is 
not used to comply with those Parts. Therefore, if the employer is not 
required to pay for the initial issue of PPE, the employer is not 
required to pay for the replacement of that PPE. However, if the 
working conditions have changed such that the PPE the employee had 
provided at his or her cost is now required under OSHA requirements, 
then the employer is required to pay for the replacement PPE it will 
have its employees use to comply with those requirements. When the PPE 
the employee already owns is adequate in these circumstances, the 
employee volunteers to use the PPE, and the employer allows the 
employee to use it in place of the PPE the employer must now provide, 
then the employer is not required to reimburse the employee. This is 
the same exception provided in the regulatory provision addressing 
employee-owned PPE. Similarly, as far as PPE that an employee has 
provided at his or her own cost, once that PPE is no longer adequate, 
the employer must pay for PPE that is required to comply with the rule, 
unless the employee voluntarily decides to provide and pay for his or 
her own replacement PPE (which may occur if the employee wants 
personalized or upgraded PPE). As with PPE owned by a newly hired 
employee, the employer is prohibited from requiring employees to 
provide their own PPE. The same replacement issues may arise if an 
employee no longer volunteers his or her own PPE for workplace use, and 
the same policies apply.
2. Disciplinary Policies
    Commenters were also concerned that OSHA's rule would prevent them 
from effectuating their reasonable disciplinary policies and infringe 
upon legitimate management practices to enforce safety and health rules 
at the worksite. Some commenters argued that without employer 
disciplinary programs, abuse would occur (See, e.g., Ex 12: 49), and 
stated that there were no provisions that would allow employers to 
enforce employee accountability (See, e.g., Exs. 12: 31, 34, 68, 95, 
167, 172, 212). As ORC, Inc. stated:

    How the employer chooses to deal with situations where an 
employee has lost or caused damage to required PPE should remain the 
decision of the employer. The situation is analogous to that 
confronting an employer when an employee fails to follow other 
safety and health requirements. There are a number of ways to deal 
with the problem, depending on the particular workplace, 
circumstances surrounding the particular incident, and the 
particular employee involved. It is up to the employer to determine 
what works best in his or her establishment (Ex. 12:222).

    OSHA does not believe this rule would have that effect and 
certainly did

[[Page 64356]]

not intend this rule to have that effect. Therefore, OSHA wishes to 
emphasize that the rule does not prohibit employers from fairly and 
uniformly enforcing work rules within the context of a system of 
reasonable and appropriate disciplinary measures to ensure compliance 
with this rule. OSHA recommends that employers use employee 
disciplinary programs as part of their overall effort to comply with 
OSHA standards and establish effective workplace safety and health 
programs. This is therefore also the case when employers are providing 
PPE to their employees to protect them from workplace injury and 
illness. As the Society of Human Resource Management (SHRM) stated: 
``An employer has both the right and the obligation (under the OSH Act) 
to use disciplinary procedures to ensure compliance with safety and 
health requirements'' (Ex. 46: 43, p. 9).
    One aspect of ``reasonable and appropriate'' disciplinary measures 
is whether they are proportionate to the employee offense. For example, 
docking an employee's pay $100 for losing a $10 reflective vest would 
not be allowed as, the penalty is unreasonably disproportionate to the 
cost of the PPE. Likewise, requiring an employee to repay the full cost 
of a lost PPE item within days of its expected replacement date is not 
a fair policy and would not be allowed. Disciplinary systems must be 
implemented consistently for all employees, regardless of rank or role. 
Disciplinary systems that circumvent the PPE payment requirements and 
shift payment to employees when the PPE is not lost or intentionally 
damaged will be considered a violation of the standard. Finally, 
employers must take precautions to assure that disciplinary systems are 
not administered in a manner that infringes upon an employee's rights 
under the OSH Act.
    The use of disciplinary systems is also recognized by employees as 
a valid means for dealing with PPE loss and abuse issues. In discussing 
situations where employers require that employees pay for lost 
equipment, Jacqueline Nowell, representing the UFCW, stated that 
management has full run of the plant and is permitted and capable of 
coming up with disciplinary policies (Tr. 216). Similarly, George 
Macaluso of the Laborer's Health and Safety Fund stated ``If an 
employer has a problem with a particular worker repeatedly losing or 
damaging equipment, that's a management or disciplinary issue, not a 
matter under OSHA's jurisdiction'' (Tr. 274). Further, Robert Krul of 
the Building Construction Trade Department's (BCTD) Safety and Health 
Committee, in discussing equipment abuse by employees, stated that 
management ``[e]ven has the right under our collective bargaining 
agreements in the management's rights clause to instill reasonable and 
fair rules, regulations, and disciplines on a job site that govern use 
of such equipment.'' Mr. Krul related an incident involving the blatant 
abuse of fall protection equipment:

    Now there is the odd case of, you know, somebody used as it was 
in the case of Roberts Roofing where an employee was seen using a 
safety harness to tow a pick up truck. Well, good Lord. I mean, 
you're the owner of the company and you see somebody abusing a piece 
of safety equipment like that. I'd either fire the guy or make sure 
he got his first notice of disciplinary action. What difference does 
it make if it's PPE or if it's one of his expensive tools on the 
job? If it's abuse of company property, it's abuse of company 
property. And that goes to the heart of reasonable, fair discipline, 
rules and regulations (Tr. 315-316).

    OSHA has always encouraged employers to exercise control over the 
conditions at their workplace. OSHA also notes, as discussed in the 
preamble to the bloodborne pathogens standard, that disciplinary 
programs are not the only alternative employers can use to encourage 
employees to follow their PPE policies. Positive reinforcement 
approaches, the individual employee's performance evaluation, or 
increased education efforts, can also be used by employers to improve 
compliance and reduce employee misconduct (56 FR 64129).
    OSHA sets forth much of its policy for evaluating the effectiveness 
of employers' safety and health programs in its Voluntary Protection 
Programs, or VPP. In 1989, OSHA issued voluntary guidelines for safety 
and health programs. In several sections of the Federal Register notice 
(54 FR 3904-3916) announcing the guidelines, OSHA stressed the need for 
effective, fair disciplinary programs. For example, OSHA stated that:

    When safe work procedures are the means of protection, ensuring 
that they are followed becomes critical. Ensuring safe work 
practices involves discipline in both a positive sense and a 
corrective sense. Every component of effective safety and health 
management is designed to create a disciplined environment in which 
all personnel act on the basis that worker safety and health 
protection is a fundamental value of the organization. Such an 
environment depends on the credibility of management's involvement 
in safety and health matters, inclusion of employees in decisions 
which affect their safety and health, rigorous worksite analysis to 
identify hazards and potential hazards, stringent prevention and 
control measures, and thorough training. In such an environment, all 
personnel will understand the hazards to which they are exposed, why 
the hazards pose a threat, and how to protect themselves and others 
from the hazards. Training for the purpose is reinforced by 
encouragement of attempts to work safely and by positive recognition 
of safe behavior.
    If, in such a context, an employee, supervisor, or manager fails 
to follow a safe procedure, it is advisable not only to stop the 
unsafe action but also to determine whether some condition of the 
work has made it difficult to follow the procedure or whether some 
management system has failed to communicate the danger of the action 
and the means for avoiding it. If the unsafe action was not based on 
an external condition or a lack of understanding, or if, after such 
external condition or lack of understanding has been corrected, the 
person repeats the action, it is essential that corrective 
discipline be applied. To allow an unsafe action to continue not 
only continues to endanger the actor and perhaps others; it also 
undermines the positive discipline of the entire safety and health 
program. To be effective, corrective discipline must be applied 
consistently to all, regardless of role or rank; but it must be 
applied.

    In 2000, OSHA issued revisions to the Voluntary Protection Programs 
(64 FR 45649-45663), which included the following element of an 
effective safety and health program:

    c. Hazard Prevention and Control. Site hazards identified during 
the hazard analysis process must be eliminated or controlled by 
developing and implementing the systems discussed at (2) below and 
by using the hierarchy provided at (3) below.
    (1) The hazard controls a site chooses to use must be:
    (a) Understood and followed by all affected parties;
    (b) Appropriate to the hazards of the site;
    (c) Equitably enforced through a clearly communicated written 
disciplinary system that includes procedures for disciplinary action 
or reorientation of managers, supervisors, and non-supervisory 
employees who break or disregard safety rules, safe work practices, 
proper materials handling, or emergency procedures * * * [sections 
(2) and (3) include information on hazard control systems and the 
hierarchy of controls].

Further, the VPP policies and procedures manual (CSP 03-01-002 03/25/
2003) advises the OSHA team reviewing a VPP applicant's safety and 
health program that:

    A documented disciplinary system must be in place. The system 
must include enforcement of appropriate action for violations of the 
safety and health policies, procedures, and rules. The disciplinary 
policy must be clearly communicated and equitably enforced to 
employees and management. The disciplinary system for safety and 
health can be a sub-part of an all-encompassing disciplinary system.

Thus, employers that do not have reasonable and appropriate safety and

[[Page 64357]]

health disciplinary systems are denied entry into the VPP program. As 
these longstanding policies display, OSHA not only allows employers to 
have disciplinary programs, the Agency encourages employers to have 
such programs and to manage them in a manner that supports occupational 
safety and health objectives.

    OSHA has emphasized through its enforcement policies that employers 
must exercise control over the working conditions at their workplace. 
OSHA's Field Inspection Reference Manual (FIRM) CPL 2.103 (Sept. 26, 
1994) is OSHA's primary reference document identifying the Agency's 
field office inspection responsibilities. It provides OSHA's field 
staff, including Compliance Safety and Health Officers (CSHOs) with 
direction on the Agency's inspection procedures, documentation 
requirements, citation policies, abatement verification procedures, and 
other procedures and policies needed to implement an effective and 
consistent national enforcement policy while providing needed latitude 
for local conditions.
    The FIRM specifically recognizes the role of disciplinary programs 
that employers use to ensure that their employees follow adequate 
workplace safety and health rules. These programs may be used to 
establish the unpreventable employee misconduct defense to a citation 
issued against the employer for conditions violative of the OSH Act 
(CPL 2.103 section 7 ch. III C.8.c.1.).
    The Firm explains that ``unpreventable employee misconduct'' is an 
``affirmative defense,'' which is defined as ``any matter which, if 
established by the employer, will excuse the employer from a violation 
which has otherwise been proved by the CSHO.'' In other words, if the 
employer can prove each and every element of an affirmative defense to 
OSHA, the Agency may decide that a citation is not warranted. The 
elements of this defense, as set forth by the Review Commission and the 
courts, are that the condition that violated an OSHA standard was also 
a violation of the employer's own work rule, that the violation would 
not have occurred if the employee had obeyed the employer's work rule, 
that the employer's work rule was effectively communicated to the 
employee, and the employer's work rule was uniformly enforced by the 
employer. OSHA believes that an important aspect of exercising control 
over the workplace is the effective training and supervision of 
employees.
3. Replacement Schedules and Allowances
    Several commenters raised issues related to regular replacement 
schedules and allowances used to replace PPE (See, e.g., Exs. 12: 153, 
188; 46: 43). The SHRM recommended that employers be allowed to set a 
pre-determined service life for PPE, and limit replacement of PPE to 
situations that involve normal wear and tear through a pre-determined 
length of time, stating that:

    Employers that provide PPE should be able to develop rules that 
take into account the service life of the PPE. Employers should not 
be required to pay for PPE and all replacements, regardless of 
whether service life has been met. Misuse and neglect will greatly 
shorten the service life of any PPE. Employers often pay for PPE and 
HR [human resources] professionals should be allowed to require 
employees to pay for their own replacement if such a replacement is 
needed prior to expiration of the equipment's service life. The 
purpose of such an approach would be to provide an incentive for 
employees to take better care of their equipment (Ex. 46: 43, p. 
10).

    In a similar comment, the Sheet Metal and Air Conditioning 
Contractors National Association suggested inserting language requiring 
employees to pay for replacement PPE if it has been lost or damaged 
``[b]efore it has been used for its minimum anticipated use period, as 
determined by the employer and/or manufacturer * * *'' (Tr. 92-93). The 
ISEA stated that:

    It is important that any item of PPE be replaced immediately 
when an inspection reveals that it is damaged or no longer meets its 
intended use. Manufacturers provide guidelines to assist in making 
this determination. Employers should pay for these replacements 
under the same terms as they provide initial issue of PPE. Some 
companies provide an annual PPE benefit to employees based on 
expected use of PPE under normal conditions. If this amount is 
exceeded, employees would have to pay for replacement only if it is 
their fault for it being lost or damaged. The employer can, of 
course, pay more than this annual amount when circumstances warrant. 
Such a system would eliminate abuse of the program (Ex. 12: 230).

    OSHA does not object to allowances as a means of paying for PPE, as 
long as the allowance policy assures that employees receive replacement 
PPE at no cost as required by the final rule. As several commenters 
noted, this is a common practice, and it appears that in many cases it 
is an effective and convenient method for providing PPE at no cost to 
employees.
    Allowance systems are based on the expected service life of the 
PPE. The Screenprinting and Graphics Imaging Association (SGIA) noted 
several factors involved in service life estimation, stating that:

    Each worksite and employer would need to include in their PPE 
assessment, when and how PPE will be replaced. The employer needs to 
find what factors are and/or will be present at the worksite to 
cause the normal wear and tear and/or immediate damage to the PPE 
specified. Anything outside the guidelines of the established 
factors should require the employee to incur the replacement costs. 
However, a periodic evaluation of the PPE specified, the PPE 
assessment, and the factors regarding replacement, need to be 
performed in order to ensure that a reasonable and appropriate 
system is always in place (Ex. 11: 116).

    OSHA believes that the expected service life for any PPE depends on 
several factors, and the manufacturer's recommendation is only one 
factor. OSHA believes other factors, such as the working conditions 
under which the PPE is used, the probability of workplace incidents 
damaging the PPE or making it otherwise unable to protect the employee, 
misuse, and any other conditions relevant to the worksite and the use 
of the PPE are highly relevant. OSHA does not object to employers 
considering expected service life in an allowance system. However, such 
systems must ensure that replacement PPE is provided at no cost to 
employees. In addition, these employers must have systems in place to 
deal with situations where PPE is damaged at work (e.g., accidents) or 
lasts for a period shorter than the expected service life due to 
conditions other than loss or intentional damage.
    Additionally, the Agency wants to be clear that the rule would not 
require that the employer provide and pay for replacement PPE whenever 
requested by an employee, as was the concern of one commenter (Ex. 46: 
43, p. 8). If an employee requests replacement PPE, the employer should 
evaluate the PPE in question to determine if, in its present condition, 
the PPE provides the protection it was designed to provide. Employees 
can be charged for replacement PPE, but only when the PPE is lost or 
intentionally damaged by the employee.
    OSHA notes that some employers currently convey ownership of PPE to 
employees, thus allowing employees to control the use of the PPE both 
on and off the job. OSHA's PPE rules require employers to ``provide'' 
PPE to their employees. OSHA does not require employers to transfer 
ownership and control over PPE to employees. Employers are free to 
choose that option and others if they so desire. For example, as 
pointed out by various commenters, the employer is free to

[[Page 64358]]

prohibit employees from taking employer-owned PPE away from the 
workplace and can elect to keep the PPE in question at the 
establishment with the use of lockers or other storage mechanisms (Tr. 
203, 274, 312-313, 337). The employer may also retain ownership of the 
PPE and still allow employees to remove it from the workplace.
    In summary, OSHA is requiring employers to pay for the initial 
issuance of PPE, as well as its replacement, except when the employee 
has lost or intentionally damaged the PPE. Adding regulatory text 
addressing the issue of payment for replacement PPE makes an employer's 
obligations clear. The rule does not prohibit the employer from using 
policies, such as allowances, to fulfill their obligations under the 
rule, so long as the policies assure that employees receive replacement 
PPE at no cost as required by the final rule. Neither does the rule 
prevent employers from fairly and uniformly enforcing work rules to 
ensure compliance with this rule. OSHA emphasizes the need for 
effective, fair disciplinary programs, as seen in its Voluntary 
Protection Programs. OSHA also believes that the rule is consistent 
with the duty that employers have with regard to working conditions 
because it reserves to them the right to control the use and 
maintenance of the PPE that is used at their workplace.

VI. Employee-Owned PPE

    The final PPE rule addresses employee-owned PPE in the workplace 
and states that, where an employee provides adequate protective 
equipment he or she owns, the employer may allow the employee to use it 
and is not required to reimburse the employee for it. This is included 
in the regulatory text at Sec.  1910.132(h)(6) for general industry, 
Sec.  1915.152(f)(6) for shipyard employment, Sec.  1917.96(f) for 
longshoring, Sec.  1918.106(f) for marine terminals, and Sec.  
1926.95(d)(6) for construction. The final rule also makes clear that 
employers shall not require employees to provide or pay for their own 
PPE, unless specifically excepted by the other provisions of the rule. 
This will prevent employers from avoiding their obligations under the 
standard by requiring their employees to purchase PPE as a condition of 
employment or placement.
    This provision was not specifically included in the proposed rule. 
However, OSHA never intended in the proposed rule to prevent employees 
from voluntarily using PPE they own, so long as the PPE is adequate to 
protect them from hazards. Furthermore, OSHA did not intend for 
employers to have to reimburse employees for equipment that they 
voluntarily bring to the worksite and wish to use. A number of 
commenters to the proposal questioned OSHA's position regarding 
equipment owned by employees. This addition to the final rule is a 
reaction to these comments and clearly sets forth an employer's 
obligations with respect to employee-owned PPE. OSHA explains this 
provision and addresses relevant comments below.

A. Employer Responsibility To Ensure ``Adequate Protective Equipment''

    It is important at the outset to set forth an employer's existing 
obligations under OSHA standards with respect to employee-owned PPE. 
OSHA's current general industry standard states, ``[w]here employees 
provide their own protective equipment, the employer shall be 
responsible to assure its adequacy, including proper maintenance, and 
sanitation of such equipment'' (29 CFR Sec.  1910.132(b)). The 
construction standards contain similar language in Sec.  1926.95(b). 
These provisions ensure that all PPE used by employees has been 
evaluated and is adequate to protect the employee from hazards in the 
workplace. OSHA will not allow employers to escape their ongoing 
responsibility to assure that PPE used at their workplace is adequate 
simply because an employee may own the protective equipment. If that 
were permitted, employees would receive less effective PPE protection.
    To recognize an employer's fundamental obligation to ensure that 
PPE used is adequate to protect affected employees, the final PPE 
payment rule refers to the employee providing his or her own ``adequate 
protective equipment.'' OSHA has included this phrase to ensure that 
employee-owned PPE is used only where the PPE is adequate to protect 
the employee from hazards in the particular workplace where it is being 
used. Furthermore, references to Sec. Sec.  1910.132(b) and 1926.95(b) 
remain in the general industry and construction standards to ensure 
that when employers allow employees to use personally-owned PPE at 
work, the employer evaluates the PPE to make sure that it is adequate 
to protect employees, that it is properly maintained, and that it is 
kept in sanitary condition.\4\ While the maritime standards in Parts 
1915, 1917, and 1918 do not contain explicit language concerning 
employee-owned PPE as in Sec. Sec.  1910.132(b) and 1926.95(b), the 
final PPE payment rule contains the phrase ``adequate protective 
equipment'' as a pre-requisite to use of the employee-owned PPE in the 
affected maritime workplaces. It is the Agency's position that when 
allowing the use of employee-owned PPE in the maritime setting, the 
employer is still obligated to ensure that the PPE used is appropriate 
and adequately protective of employees. These obligations are inherent 
in the requirement that the employer ``provide'' PPE. Several of the 
PPE provisions in the maritime standards also specifically require that 
employers ensure the use of ``appropriate'' PPE. (See, e.g., 29 CFR 
1915.152(a) (``The employer shall provide and shall ensure that each 
affected employee uses the appropriate personal protective equipment * 
* *.''))
---------------------------------------------------------------------------

    \4\ Use of the word ``sanitary'' does not indicate that the 
Agency expects PPE to be maintained at a level approaching 
``hospital clean.'' ``Sanitary condition'' simply means that the PPE 
must be kept at a level of cleanliness such that it does not present 
a health hazard to the employee who is using it.
---------------------------------------------------------------------------

B. Employees Who Already Own PPE

    The most common situation where employers may encounter employee-
owned PPE is when newly hired employees report to the worksite with 
their own PPE. The employee may have been given the PPE by a former 
employer, may have purchased the PPE for a prior job or because of a 
personal preference for certain features or aesthetics, may have 
obtained the PPE from a friend or relative who no longer needed it, may 
have obtained PPE while in an educational program, or from some other 
source. This occurs in many industries but seems to be found more 
frequently in workplaces that use short-term labor.
    OSHA recognizes that employees who change employers frequently may 
want to carry their PPE from job to job. Underlying reasons for this 
can include that the employee will be familiar with the PPE, will have 
``broken it in,'' and especially if the employee purchased the PPE, 
will have the equipment that he or she prefers and finds the most 
comfortable and aesthetically pleasing. This practice is common in the 
construction, marine terminal, and shipyard industries, as well as 
workplaces employing individuals from temporary help services. 
(Application of the standard in these industries is addressed in more 
detail in the following section.)
    As discussed previously and noted by many commenters, in some 
trades, industries, and/or geographic locations, PPE for employees who 
frequently change jobs can take on some of the qualities of a ``tool of 
the trade.'' In other words, the PPE is an item that the employee 
traditionally keeps with his or

[[Page 64359]]

her tool box. This may be because the PPE is used while performing some 
type of specialized work, such as welding or electrical work, or 
because it is a tradition in the industry, such as in home building. 
OSHA has not included an exception to the payment requirement for tools 
of the trade because, among other things, of the difficulty of 
defining, with adequate precision, when an item of PPE is or is not a 
tool of the trade. However, because the rule does not require employers 
to reimburse employees for PPE they already own, it recognizes that 
some employees may wish to own their tools of the trade and bring that 
equipment to the worksite.
    OSHA has further emphasized in the regulatory text that employees 
are under no obligation to provide their own PPE by stating that the 
employer shall not require an employee to provide or pay for his or her 
own PPE, unless the PPE is specifically excepted in the final rule. 
These provisions address the concern that employers not circumvent 
their obligations to pay for PPE by making employee ownership of the 
equipment a condition of employment or continuing employment or a 
condition for placement in a job. OSHA recognizes that in certain 
emergency situations, such as response to a natural disaster, where 
immediate action is required, it may be necessary for employers to hire 
or select employees already in possession of the appropriate PPE. As a 
general matter, however, employers must not engage in this practice. 
Taking PPE-ownership into consideration during hiring or selection 
circumvents the intent of the PPE standard and constitutes a violation 
of the standard.

C. Employer Ownership and Control Over PPE

    When employers purchase PPE, they often retain ownership. In this 
situation, they ``provide'' the PPE to the employee without conveying 
ownership to the employee. This is similar to ``providing'' an employee 
a tool to use, a lift truck to drive, or a company automobile.
    In some workplaces that follow this approach, the PPE is kept in 
on-site lockers or other storage facilities to prevent employees from 
using the PPE off the job, to avoid loss or damage to the PPE, to 
prevent contaminants from leaving the workplace on or in equipment, or 
simply as a convenience. In other workplaces, the employer purchases 
the PPE, retains ownership of the equipment, but allows (or even 
requires) the employee to remove the PPE from the worksite and return 
with it when it is next needed to protect against a hazard. In either 
case, when the employer retains ownership of the PPE, the employer has 
the right to control the use of the PPE, just as he or she would 
control any other equipment, tools, parts, or facilities that he or she 
owns.
    Some commenters to the rulemaking questioned whether employers had 
the right to recover PPE once the employee no longer works for the 
providing employer. The NAHB asserted that ``[i]f an employer issues 
equipment that they have paid for, then they should expect to get it 
back; if not, the employer must be permitted to charge for the 
equipment'' (Ex 12: 68). A number of commenters asked if they could 
require employees to provide a deposit that would be returned when the 
employee returned the PPE (See, e.g., Exs. 12: 12, 44, 68, 140, 153, 
154, 165, 203). The Associated Building and Contractors, Inc. (ABC) 
stated that:

[t]here are cases of the short-term employee, i.e., the person who 
is hired, given $150.00 plus in safety apparel, then decides 
construction is not for him or her and leaves the next day. For this 
reason, the employer should be allowed to require a deposit from 
short-term and temporary employees, to be refunded when the 
equipment is returned in satisfactory condition (Ex. 12: 153).

William McGill of the International Brotherhood of Electrical Workers 
described one such deposit system during his testimony. His bargaining 
unit reached an agreement with the company in which the employees put 
down a security deposit for their hard hats, and when they leave the 
company, the deposit is refunded when the hard hat is returned (Tr. 
588-590).

    After considering these comments, OSHA recognizes the concern of 
employers and addresses it as follows. If the employer retains 
ownership of the PPE, then the employer may require the employee to 
return the PPE upon termination of employment. If the employee does not 
return the employer's equipment, nothing in the final rule prevents the 
employer from requiring the employee to pay for it or take reasonable 
steps to retrieve the PPE, in a manner that does not conflict with 
federal, state or local laws concerning such actions. In these 
situations, OSHA notes that the employer is not allowed to charge the 
employee for wear and tear to the equipment that is related to the work 
performed or workplace conditions. As suggested by National Tank Truck 
Carriers, Inc., a written agreement, for example, between the employer 
and employee on the matter may be an effective method of ensuring that 
the employer's expectations of the employee are clear and unambiguous 
(Ex. 12: 12). Another acceptable alternative is a deposit system that 
provides an incentive for employees to return the equipment. However, 
the Agency cautions that the deposit system must not be administered in 
a fashion that circumvents the rule and results in an employee 
involuntarily paying for his or her PPE.
    In some situations, an employer may prohibit an employee from using 
PPE that the employer has paid for while working for another employer 
or for personal purposes. Conversely, an employer may allow an employee 
to use employer-owned PPE while working for another employer or for 
personal purposes. Since the employer has retained ownership of the 
PPE, he or she can stipulate where it is used. OSHA does not object to 
either of the aforementioned practices.
    The VPPPA noted that their member firms promote off-the-job safety 
by encouraging employees to use PPE while performing personal tasks, 
when the PPE is suitable for such use and the employer has given 
permission (Ex. 12: 113). OSHA recognizes the benefit of the policy 
articulated by VPPPA. If employees utilize PPE consistently at work and 
at home, its use is likely to become more natural, or ``second nature'' 
to the employee, and PPE compliance at work may be improved. Another 
means of improving compliance is for employers to develop clear 
policies for PPE, i.e., specific procedures for use, maintenance, 
storage, and so forth. The employer should communicate these policies 
clearly to employees, ensuring that they are understood and followed. A 
reasonable approach to conveying this information would be to include 
training material covering these topics when conducting the mandatory 
PPE training.
    While OSHA anticipates that most PPE will be purchased by and 
remain the property of the employer, OSHA foresees some employers 
conveying ownership of the PPE to their employees. Many commenters 
argued that employees take better care of PPE that they actually own 
(See, e.g., Exs. 12: 112, 154, Tr. 547, 679). While employers are 
required to pay for PPE, OSHA does not object to employers transferring 
ownership of the equipment to employees.

D. Upgraded and Personalized PPE

    In some workplaces, an employer may allow an employee to 
``upgrade'' or personalize their PPE, thereby obtaining PPE beyond what 
the employer is required to purchase. Issue seven of the proposal 
addressed this situation, i.e.,

[[Page 64360]]

an employee who prefers more costly PPE than that provided by the 
employer. The proposal asked, ``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?'' (64 FR 
15416).
    OSHA received many comments on this issue. Several commenters 
stated that if an employee wants more expensive equipment, they should 
pay for the difference in costs (See, e.g., Exs. 12: 17, 50, 52, 68, 
99, 107, 145, 152, 172, 188, 201, 217, 228, 230). Some commenters 
argued that if employees want more costly PPE than that which the 
employer is providing, they should be responsible for the entire cost 
of the PPE (See, e.g., Exs. 12: 65, 79, 107, 110, 114, 150). Other 
commenters argued that employers should pay for PPE which the employee 
prefers, so employees will have PPE that fits better, is more 
comfortable, and is more likely to be used (See, e.g., Ex. 12: 134, 
218). Some thought that the purchase of upgraded or more costly PPE 
should be at the discretion of the employer (See, e.g., Exs. 12: 3, 
114, 183), or alternatively that employees may upgrade their PPE, but 
the employer need not allow the use of that PPE at the workplace (Ex. 
12: 183). Some argued that individual preference does not justify an 
OSHA rulemaking effort but is better left to employer and employee 
mutual agreement (See, e.g., Exs. 12: 144, 190). The International 
Brotherhood of Teamsters (IBT) suggested that:

    A worker's request for more expensive PPE, to replace an ill-
fitting PPE or one made of material that a worker may be allergic 
to, should be judged on safety and health grounds, not on an 
aesthetic basis. To the extent that an employee's preference is 
consistent with these OSHA requirements, the employer should 
accommodate any added cost. Outside this domain, the matter of 
payment for more costly PPE of employee's choice should rest on 
union agreements (Ex. 12: 190).

The American Association of Airport Executives recommended that ``[a]n 
employer should not be responsible for the additional cost resulting 
from an employee's preference for a costly, but no more effective PPE 
product. If employees want more expensive PPE, they should either pay 
for it or obtain it through collective bargaining'' (Ex. 12: 217).

    OSHA agrees that it needs to clearly set forth an employer's 
obligation with respect to upgraded or personalized PPE. First, the 
language that OSHA has included in the final standard to address PPE 
owned by employees applies equally to upgraded or personalized PPE 
purchased by employees. When an employee owns a certain type of 
upgraded PPE and wishes to use it on the jobsite rather than using the 
PPE provided by the employer, the employer is not required to reimburse 
the employee for that PPE, pursuant to the employee-owned exception 
discussed above.
    Second, OSHA clarifies that an employer is not required to pay for 
upgraded or personalized PPE requested by an employee, provided the 
employer provides adequate ``basic'' PPE to the employee. Under the 
current standards, employers must provide PPE that protects against 
hazards in the workplace. Allowing the use of other PPE that the 
employee may prefer or that provides features beyond those necessary 
for employee protection from workplace hazards remains at the 
discretion of the employer. If an employee requests some specialized 
PPE in place of the PPE provided by the employer,\5\ the employer may 
allow the employee to acquire and use the PPE, but the employer is not 
required to pay for it. If the employer allows upgrades or personalized 
PPE, he or she is still required to evaluate the PPE to make sure that 
it is adequate to protect the employees from the hazards in the 
particular workplace, is properly maintained, and is kept in a sanitary 
condition. As stated by the SGIA:
---------------------------------------------------------------------------

    \5\ OSHA does not require employers to keep records of 
employees' requests to use their own PPE. OSHA believes that if 
information about such requests is needed by the Agency, its 
inspectors can gather such information through interviews and other 
standard investigative procedures.

    Allowing employees to provide their own PPE can be an acceptable 
practice as long as the employees are provided the PPE assessment 
for their workplace and the minimum guidelines for the selection of 
the PPE * * * A potential problem arises when no standards are set 
and no system is in place accounting for employee vs. employer PPE, 
in that reimbursement claims for PPE often lead to disputes between 
---------------------------------------------------------------------------
employee and employer (Ex. 12: 116).

SGIA's comment raises an important point about setting standards. 
Employers are encouraged to set specific policies for PPE upgrades and 
employee-preferred PPE and to communicate these policies clearly to 
employees, in order to minimize disputes.

    Third, if an employer uses an allowance system to provide and pay 
for PPE, he or she is only required to provide to the employee the 
amount of money required to purchase ``basic'' PPE that protects 
against hazards in the workplace. If the employer allows employees to 
take the allowance and use it toward the purchase of acceptable, but 
upgraded or personalized PPE, that is permissible under the final rule. 
In this instance, OSHA stresses that the employer is only responsible 
for the cost of the ``basic'' PPE.
    Another issue related to upgrading and personalizing PPE is 
allowing employees to choose PPE from an array of equipment. The VPPPA 
suggested that OSHA require employers to provide an adequate selection 
of appropriate PPE, so each employee will find equipment that is 
comfortable, functional, and sized appropriately (Ex. 12: 113). While 
ORC agreed that the arrangements for paying for more expensive PPE 
should remain the decision of the employer, they also noted that 
``[e]xperienced employers are * * * aware that, where possible, it is 
desirable to offer employees an opportunity to select from an array of 
equally-effective PPE types. This not only helps to ensure that an 
employee is issued PPE that is both effective and comfortable, but 
encourages acceptance and use of the PPE by that employee'' (Ex. 12: 
222). Corrado & Sons, Inc. noted that they have a safety committee 
which allows the employees to select PPE that is the safest and most 
comfortable to use (Ex. 12: 48).
    OSHA agrees that providing a selection of PPE is a good practice 
which may improve employee acceptance and use of the equipment. 
Employers are encouraged to consider offering a selection of PPE to 
their employees as a ``best practice'' that will help to improve the 
effectiveness of their safety and health programs. In fact, OSHA's 
respirator and noise standards require employers to provide a selection 
of equipment from which employees may choose (See Sec.  1910.95(i)(3) 
and Sec.  1910.134(d)(1)(iv)). Most of OSHA's standards, however, do 
not contain this type of requirement. Instead, most OSHA standards 
generally require that the PPE fit the employee properly (See, e.g., 
Sec.  1910.132(d)(iii), Sec.  1915.152(b)(3), and Sec.  
1926.102(a)(6)(iii)).
    OSHA is not requiring employers to provide a selection of PPE from 
which employees may choose their equipment beyond the existing 
requirements in the respirator and noise standards, because that action 
is beyond the scope of this rulemaking. Where an employer is not 
required to offer a selection of equipment, the PPE provided must 
nonetheless be properly suited to protect against the hazards of the 
workplace and must fit the employee.

[[Page 64361]]

Ill-fitting PPE may not serve its intended purpose and could put the 
employee at risk of injury, illness, or death. Accordingly, employers 
are urged to review the PPE manufacturer's instructions, which often 
provide additional information regarding appropriate selection and fit 
of PPE.
    Some commenters noted that they were not aware of any problems with 
substandard PPE or safety problems from individualized PPE (See, e.g., 
Exs. 12: 9, 17, 52, 68, 233). Other commenters worried that allowing 
employees to select their own upgraded or personalized PPE could cause 
problems (See, e.g., Exs. 12: 32, 113, 116; Tr. 593, Tr. 178, Tr. 371). 
The AAOHN observed that:

    Allowing individual preference for PPE could create safety 
problems if the minimal requirements for PPE are not clearly stated. 
One [AAOHN] member reported a situation where a manufacturing 
facility allowed individual preference for safety eyewear and found 
that 70 percent of the female employees wore glasses without safety 
lenses. At a very minimum any PPE to be used must be approved by the 
employer. More significantly, allowing individual preference for PPE 
may pose administrative and enforcement problems for employers. 
Allowing individual preference for PPE may make training and 
compliance more complicated for employers (Ex. 12: 32).

    Similarly, the VPPPA noted that employee-owned equipment can be 
less protective, noting that ``PPE selection can be a very technical 
task. Safety and health staff often review extensive data and varieties 
of equipment options before making their selection. In certain cases, 
employees may waive functionality in lieu of cost, comfort and style. 
PPE selection must begin with the hazard assessment and the resulting 
data used to identify the PPE best designed for worker protection'' 
(Ex. 12: 113).
    It is the Agency's position that upgraded and personalized PPE will 
not provide less protection as long as employers meet their obligation 
to perform a hazard assessment and ensure the PPE's adequacy, including 
proper maintenance, and sanitation of such equipment. To facilitate the 
selection of appropriate PPE, employers are encouraged to set clear 
guidelines and policies regarding PPE and to communicate these 
standards to employees.

VII. Industries and Employees Affected by the Standard

    The final rule incorporates PPE payment provisions into the OSHA 
standards applicable to general industry (29 CFR part 1910), 
construction (29 CFR part 1926), shipyards (29 CFR part 1915), 
longshoring (29 CFR part 1917), and marine terminals (29 CFR part 
1918).\6\
---------------------------------------------------------------------------

    \6\ Some employees in agriculture are covered by two general 
industry standards, the logging standard (29 CFR 1910.226) and the 
cadmium standare (29 CFR 1910.1027), which specifically require 
employers to pay for required PPE. (the Logging boots specified in 
Sec.  1910.266(d) (l)(v), are exempted from the requirements of this 
standard). The PPE requirements in these two standards will continue 
to apply in agriculture.
---------------------------------------------------------------------------

    OSHA's proposal included specific questions about how to apply the 
PPE payment standards in these industries (61 FR 15416). Many 
commenters raised additional questions about how the standard would 
apply to independent contractors, subcontractors, and employees 
obtained through temporary help services. Caterpillar Inc. commented 
that ``Employment relationships are becoming more complex, and OSHA 
must recognize the variety of relationships which are now common in 
industry'' (Ex. 12: 66, p. 4). ORC commented:

``[e]mployers are more likely to provide protective equipment, 
including personal protective equipment, for any employee with whom 
they have a traditional employment relationship. The issue of 
responsibility for payment becomes more problematic, however, when 
contract work, temporary employees, and clothing that is subject to 
both work and personal use are involved (Ex. 12: 222, p. 2).

    OSHA agrees with commenters that a number of nontraditional 
employment relationships exist in today's workplaces. This section will 
address these relationships and the more common employment scenarios 
raised by commenters. However, OSHA wishes to emphasize the fundamental 
application of the final rule: It applies in the industries above to 
any employer with an employee regardless of whether the employee is 
full-time, part-time, temporary, short-term, or working under any other 
type of arrangement that results in an employer-employee relationship 
under the OSH Act.

A. OSH Act Definition of Employee

    Implementing the PPE payment requirements, as with any of OSHA's 
regulations and standards, begins with the identification of an 
employer and an employee as defined by the OSH Act.\7\ Whether an 
employer-employee relationship exists under the Act is determined in 
accordance with established common law principles of agency. It is 
important to note that the employer-employee relationship for purposes 
of complying with this final rule is to be analyzed no differently than 
it is for any other OSHA standard.
---------------------------------------------------------------------------

    \7\ The statute defines ``employee'' as ``an employee of an 
employer who is employed in a business of his employer which affects 
interstate commerce'' (29 U.S.C. 652(6)). The term ``employer'' 
means ``a person engaged in a business affecting interstate commerce 
who has employees'' (29 U.S.C. 652(5)). The term ``person'' includes 
``one or more individuals, partnerships, associations, corporations, 
business trusts, legal representatives, or any organized group of 
persons'' (29 U.S.C. 652 (4)).
---------------------------------------------------------------------------

    The criteria for determining the existence of an employer-employee 
relationship in common law are discussed in Nationwide Mutual Insurance 
Company v. Darden, 503 U.S. 318, 112 S. Ct. 1344, 117 L. Ed. 2d 581 
(1992) and Community for Creative Non-Violence v. Reid, 490 U.S. 730, 
109 S. Ct. 2166 (1989). The cases held that the following criteria are 
to be considered in determining whether there is an employer-employee 
relationship.
    1. The right to control the manner and means by which work is 
accomplished.
    2. The level of skill required to perform effectively.
    3. Source of required instruments and tools.
    4. Location of work.
    5. Duration of relationship between parties.
    6. The right of the employer to assign new projects to the 
individual.
    7. The extent of the individual's control over when and how long to 
work.
    8. Method of payment.
    9. The individual's role in hiring and paying assistants.
    10. Whether work is the regular business of the employer.
    11. Whether the employer is in business.
    12. The provision of employee benefits.
    13. The tax treatment of the individual.
    The nature and degree of control asserted by the hiring party over 
the means and methods of how the work is to be performed remains a 
principal guidepost. Clackamas Gastroenterology Assocs. P.C. v. Wells, 
123 S. Ct. 1673, 1679 (2003). OSHA instructs its safety and health 
inspectors ``Whether or not exposed persons are employees of an 
employer depends on several factors, the most important of which is who 
controls the manner in which the employees perform their assigned work. 
The question of who pays these employees may not be the determining 
factor.'' (OSHA Field Inspection Reference Manual CPL 2.103, Section 
7--Chapter III. Inspection Documentation).\8\
---------------------------------------------------------------------------

    \8\ The preamble to the 29 CFR Part 1904 injury and illness 
recording and reporting regulation issued in 2001 addressed a number 
of these issues (66 FR 5916 6135). To ensure accurate recording and 
reporting, OSHA directed, that the employer record on the OSHA 300 
Log the recordable injuries and illnesses of all employees on their 
payroll, whether they are hourly, salary, part-time, seasonal or 
migrant employees. OSHA also directed the employer to record the 
recordable injuries and illnesses that occur to employees who are 
not on their payroll if the employer supervises these employees on a 
day-to-day basis. Thus if an employer obtains employees from a 
temporary help service, employee leasing service, or personnel 
supply service, the employer must record these injuries and 
illnesses if the employer supervises these employees on a day-to-day 
basis.

---------------------------------------------------------------------------

[[Page 64362]]

    Thus, employers must examine whether the employment relationships 
they have make them ``employers'' of ``employees'' under the Act. If 
they are, they must ensure that PPE is provided to their employees at 
no cost, unless specifically excepted in the final rule.

B. Self-Employed Independent Contractors

    A truly self-employed ``independent contractor,'' is not an 
``employee'' under the OSH Act and is not provided the protections of 
the OSH Act, and is not covered by the OSHA standards. Therefore, an 
employer who has contracted with that individual for services is not 
required to pay for that individual's PPE. Other individuals, who are 
not considered to be employees under the OSH Act are unpaid volunteers, 
sole proprietors, partners, family members of farm employers, and 
domestic employees in a residential setting. (See 29 CFR 1975.4(b)(2) 
and Sec.  1975.6 for a discussion of the latter two categories.) As is 
the case with independent contractors, no employment relationship 
exists between these individuals and the hiring party, and 
consequently, no PPE payment obligation arises.
    However, a self-employed independent contractor may become an 
employee of the hiring party, even if only temporarily. The label 
assigned to an employee is immaterial if it does not reflect the 
realities of the relationship. For example, an employment contract that 
labels a hired employee as an independent contractor will not 
necessarily control if in fact the hiring employer exercises day-to-day 
supervision over that employee, including directing the worker as to 
the manner in which the details of the work are to be performed, when 
it is to be performed, and so forth. Thus, depending on the nature and 
degree of control asserted over the means and methods of how the work 
is to be performed, the hiring employer may be responsible for 
compliance with OSHA standards, including providing PPE to that 
individual at no cost.

C. Temporary Help Services and Subcontractors

    Several commenters asked OSHA to clarify application of the PPE 
payment requirements to temporary help services (See, e.g., Exs. 12: 
66, 104, 145, 164) and subcontractors (See, e.g., Exs. 12: 3, 9, 15, 
28, 58, 66, 129, 222).
    With respect to temporary help services, some commenters stated 
that ``using firms'' should not pay for required PPE. Caterpillar, Inc. 
stated that:

    [T]emporary workers, who are supervised by Caterpillar 
supervisors, often perform production, maintenance and service 
operations. The fact that we supervise these temporary employees 
makes them Caterpillar employees by OSHA definitions and enforcement 
policy. We expect temporary employees to provide their own common 
forms of PPE. We may also expect temporary employees to provide 
specialized equipment unique to an unusual job. Caterpillar may 
occasionally provide specialized PPE for specific tasks and any 
specialized PPE we provide would be recovered when the temporary 
employees move to another job. Complicating this issue is the fact 
that temporary employees often have employment relationships with 
two or more entities. Our temporary employees often have a 
relationship with their employment agency or parent firm which may 
provide insurance coverage, workers compensation benefits, training, 
and basic personal protective equipment. * * * OSHA must exclude 
temporary employees from the coverage of the proposed standard, or 
require that their current employer only assure that PPE is utilized 
and allow industry practice to determine who purchases PPE (Ex. 12: 
66).
    Those entities that provide temporary employees, however, such as 
the National Association of Temporary and Staffing Services (NATSS), 
argued that the firm obtaining employees from a temporary help service 
(the utilizing employer) should pay for PPE, stating that:

    Although temporary staffing firms are employers of the workers 
that they send on assignment to a customer's worksite, under long-
standing OSHA policy the primary responsibility for providing and 
paying for PPE for such workers falls on the entity that directs and 
controls the workers on the worksite on a daily basis. In most 
cases, it is the customer that utilizes the workers and directs and 
supervises them on a day-to-day basis. Accordingly, in most 
temporary help arrangements, the responsibility for providing and 
paying for PPE for the temporary workers should rest with the 
staffing firm's customer. Requiring the ``utilizing employer'' to 
pay for PPE for the workers over whom it exercises day-to-day 
control is both in accordance with long-standing OSHA policy and 
makes sense from a practical, administrative perspective (Ex. 12: 
104).

NATSS also pointed out that the utilizing employer principle is 
recognized as state law in California and North Carolina, that OSHA's 
injury and illness recordkeeping regulations require the employer 
exercising day-to-day supervision over employees to record their 
injuries and illnesses, and that OSHA issued a letter of interpretation 
in 1985 that made the utilizing employer generally responsible for PPE. 
The NATSS further argued that the utilizing employer is in the best 
position to know what hazards are present at the worksite and what 
safety equipment is needed (Ex. 12: 104).
    The process used to determine which entity is the employer of the 
employee is similar to the process used to determine if an individual 
is an employee or an independent contractor. If the utilizing employer 
(the employer that hires the temporary help service) controls the 
manner in which the employees perform their assigned work, then he or 
she will usually be responsible under the standard for providing PPE at 
no cost. Conversely, if the employer providing the labor controls the 
work of the employee, independent of the utilizing employer, that 
entity will likely be the employer responsible for providing PPE at no 
cost. It may even be possible that both employers will be the 
``employers'' of the employees, and that both will have a shared 
responsibility for providing PPE at no cost. This principle is seen in 
the context of the OSHA bloodborne pathogens standard with respect to 
which a host employer and an employer supplying employees to the host 
employer can have shared responsibilities (See CPL 2-2.69 (Nov. 27, 
2001) at X1.B). Even when this is the case, each employer must ensure 
that employee protection does not ``slip through the cracks''.
    The labor-providing firm and the utilizing firm are free to agree 
how to coordinate the provision of PPE at no cost through private 
arrangements, for example, by contract. However, employers may not 
escape their ultimate responsibilities under the Act by requiring 
another party to perform them. If they do so and those duties are 
neglected, ultimately the responsibility remains with the employer of 
the employees. In other words, employers must ensure that their 
employees are provided PPE at no cost, whether they provide it 
themselves or have another entity do so. When the employers accomplish 
this goal and ensure the employees receive the PPE at no cost, there is 
no violation of the standard.
    With respect to subcontractors, many commenters requested OSHA to 
make clear that host employers/general contractors on multi-employer 
worksites

[[Page 64363]]

are not responsible for the payment of PPE for the employees of 
subcontractors. In its submission, the Society of the Plastics Industry 
recommended that:

    OSHA should clarify that contractors are responsible for the 
initial purchase and necessary replacement of their own employees' 
equipment. For example, if the employee of a contractor arrives at 
the host employer's site without the required PPE or is not using 
appropriate PPE for the current task, the rule should specify that 
the host employer is not responsible for providing and paying for 
the contractor employee's PPE and therefore cannot be cited for 
failing to do so. The final rule or preamble to the final rule 
should clarify this allocation of responsibilities (Ex. 12: 58).

    The Dow Chemical Company added that ``[t]he issue of who provides 
and pays for such equipment should remain a contractual issue between 
the host and contract employer. OSHA should have no role in those 
negotiations'' (Ex. 12: 129). ORC noted that:

    Host employers have responsibility for ensuring that contractors 
are informed of hazards present at the worksite and for making a 
determination that the contractors they hire are aware of the 
applicable safety and health requirements (including the use of 
appropriate PPE) for the work they are to perform. A host employer 
has an obligation not to contract with companies or individuals who 
clearly do not understand or intend to comply with safety 
requirements. And a host employer has an obligation to halt a 
contractor's work if the host employer is aware that it is not being 
performed in a safe manner (Ex. 12: 222, pp. 3, 4).

    OSHA appreciates these comments and is making it clear that, as a 
general matter, host employers/general contractors are not responsible 
for payment of PPE for the employees of subcontractors at multi-
employer worksites.

    OSHA recognizes that under its multi-employer enforcement policy, 
certain employers on multi-employer worksites have obligations to 
protect the employees of others (See OSHA Directive No. CPL 2-00.124 
(Dec. 10, 1999)). This has been a longstanding OSHA enforcement policy, 
which flows directly from the OSH Act's requirements that employers are 
responsible for creating safe and healthful places of employment. 
Notwithstanding this, OSHA finds here that, a host employer/general 
contractor is not required to pay for the PPE of a subcontractor's 
employees. However, when a host employer/general contractor establishes 
an employment relationship with an employee, the host employer/general 
contractor must provide the PPE to the employee at no cost. The 
obligation to pay for PPE is dependent on the employer/employee 
relationship, as described above.
    Finally, OSHA stresses effective communication and coordination 
between the utilizing, or host firm, and the contractor or temporary 
help service. Many employers already share information about these 
matters to help each other with their own respective safety and health 
responsibilities. Caroline Sherman of Arrow Temporary Services, Inc., 
testified that training responsibility was often shared--her company 
would provide general safety and health training (e.g, proper use of 
safety equipment) and the utilizing employer would provide site 
specific training (Tr. 558-559).
    In this final rule, OSHA is not specifying how employers should 
coordinate their obligations under the rule. However, the Agency 
encourages employing entities, including host employers, contractors, 
and temporary help services to communicate and coordinate their 
workplace safety and health activities.

D. Part-Time and Short-Term Employees

    Many commenters raised concerns related to part-time and short-term 
employees (See, e.g., Exs. 12: 3, 18, 46: 6, 11, 16, 26, 32, 44; 46: 
21, 25, 29, 37, 38, 50; 47: 1; Tr. 687-688). Short-term employees were 
characterized as temporary employees, piece workers, seasonal 
employees, hiring hall employees, labor pool employees, and transient 
employees. In a representative comment, SHRM stated that:

    Even in those cases where an ``employer pays'' approach is shown 
to be appropriate for full-time employees, SHRM does not believe 
that would be a reasonable mandate to extend to part-time employees, 
temporary employees and temporary workers provided by a staffing 
service. * * * HR professionals need greater flexibility to set and 
administer their PPE payment policies as to part-time employees and 
temporary workers. Part-time employees are more likely to work at 
several different worksites in a given week, and temporary employees 
are more likely to work at several different worksites within a 
given month or year. The proposed rule would impose an unfair burden 
upon one employer to pay for PPE that an employee may be using at 
other employers' worksites at different times within the week or 
year. SHRM therefore proposes that required PPE, which is personal 
in nature and used by temporary or otherwise non-permanent 
employees, should be exempt from the PPE employer pay rule (46: 43).

    The Shipyard Council of America (SCA) noted that ``[w]orkers in the 
shipyard industry are transient and turnover rates are exceptionally 
high. Often employees fail to return the employer's equipment upon 
leaving and take the equipment to another worksite, thereby placing an 
undue economic burden on shipyard employers'' (Ex. 46: 32). In a 
combined comment, the United States Maritime Alliance Limited (USMX) 
and the Carriers Container Council, Inc. (CCC) stated that ``In the 
marine cargo handling industry [marine terminals and longshoring], 
labor pools are often utilized to assign labor to a certain workplace. 
It is not uncommon for a single employee to work at a different 
employer's facility from day to day or even shift to shift. As such, 
the proposed rule raises significant questions concerning compliance 
and enforcement within the marine cargo handling industry.'' The NAHB 
remarked that:

    It is common knowledge that the residential construction 
industry, and in fact the construction industry as a whole, is 
facing an increasing shortage of qualified labor. To alleviate such 
shortages some areas in the country utilize ``piece workers'' to 
fill the gap. In the areas where piece workers are used, how will 
this rule be enforced? * * * Such companies typically process 15-50 
workers in a single week and many of these quit or are terminated 
after a short time. It is not uncommon for some workers to be 
terminated in a matter of hours (Ex. 12: 68).

    The PPE payment provisions apply to all employers under the Act, 
including those with short-term employees, whether referred to as 
temporary employees, piece workers, seasonal employees, hiring hall 
employees, labor pool employees, or transient employees.\9\ As 
discussed above, if an employer-employee relationship is established, 
then the employer must provide PPE to the employee at no cost. As 
discussed earlier, if the individual is not an employee and is actually 
a self-employed independent contractor, then the OSH Act does not 
apply, and the PPE payment rule also does not apply.
---------------------------------------------------------------------------

    \9\ For example, OSHA's injury and illness recordkeeping 
regulation makes clear that ``All individuals who are `employees' 
under the OSH Act are counted in the total; the count includes all 
full time, part-time, temporary, and seasonal employees'' (66 FR 
5938).
---------------------------------------------------------------------------

    An issue relevant to part-time and short-term employment is the 
issue of employee-owned PPE. The final rule provides that where an 
employee provides appropriate protective equipment he or she owns, the 
employer may allow the employee to use it and is not required to 
reimburse the employee for it. This provision is included in the 
regulatory text at Sec.  1910.132(h)(6) for general industry, Sec.  
1915.152(f)(6) for shipyard employment, Sec.  1917.96(e) for 
longshoring, Sec.  1918.106(e) for marine

[[Page 64364]]

terminals, and Sec.  1926.95(d)(6) for construction. The final rule 
also makes clear that employers shall not require employees to provide 
or pay for their own PPE, unless specifically exempted. Employers 
cannot avoid their obligations under the standard by requiring their 
employees to purchase PPE as a condition of employment or placement. 
OSHA never intended in the proposed rule to prevent employees from 
voluntarily using PPE they already own, however, so long as the PPE was 
adequate to protect them from hazards. Furthermore, OSHA did not intend 
for employers to have to reimburse employees for equipment that they 
voluntarily bring to the worksite and wish to use. OSHA believes that 
allowing employees to use equipment they own, as OSHA has always 
intended, will alleviate some of the concerns raised by commenters 
regarding part-time and short-term employment. Employers who employ 
short-term and part-time employees may also require employees to return 
employer-owned PPE at the end of the day or when they terminate 
employment, and may use a deposit system or other mechanism to help 
ensure that their employees return the PPE.

E. Longshoring and Marine Terminals

    Longshoring and marine terminal employers and employees are covered 
by the OSHA standards at 29 CFR Parts 1917 and 1918. These two 
standards work together to regulate safety and health conditions 
applying to a single industry--the loading and unloading of ships at 
the Nation's ports. The marine terminal standards at Part 1917 apply to 
onshore working conditions and the longshoring standards at Part 1918 
apply to working conditions onboard vessels such as container ships or 
barges.
    The proposal noted that the nature of the industry creates 
employer-employee relationships unique to each port. At some ports, 
employees are hired for one job through a labor pool. At another port, 
one employee may work for five different employers in the same week. 
The specific questions OSHA asked were: ``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?'' (64 FR 15416).
    A number of longshoring and marine terminal interests commented on 
the proposed standard (See, e.g., Exs. 12: 14, 17, 172, 173; 13: 7; 45: 
35, 40; 46: 4). The most common concern among the marine terminal 
commenters was that the use of labor pools and union hiring halls in 
the longshoring industry creates special circumstances that would make 
the PPE payment standard unworkable (Ex. 12: 14, 172, 173; 13: 7). The 
Pacific Maritime Association (PMA) noted that marine cargo handling 
employers hire labor on a daily, as needed, basis, through one or more 
union locals or dispatch halls operated jointly by PMA and the ILWU 
(International Longshore and Warehouse Union). As a result, much of an 
employer's workforce changes from shift to shift. The PMA pointed out 
that the proposed rule could require an employer to provide and pay for 
PPE for each employee on its dock. The PMA also noted the 
administrative difficulties in determining whether an employee or 
another employer paid for the PPE. The PMA also noted that the role of 
an employer association in providing PPE was unclear (Ex. 12: 173).
    The South Carolina Stevedores Association remarked that ``Employers 
in the Port of Charleston would be forced to maintain equipment 
inventories and administer recordkeeping programs on a daily basis to 
comply with this proposed rule for a workforce of over one thousand 
employees'' (Ex. 12: 14). The NMSA added:

    A literal reading of the proposed rule would indicate that the 
current employer must be the one who paid for the PPE. Thus, if on 
Monday an employee works for employer A, and on Tuesday the employee 
works for employer B, employer B must have paid for the PPE the 
employee is using on Tuesday. If the employee shows up at workplace 
B with PPE paid for by employer A, employer B would be in violation 
of federal law. This makes absolutely no sense and is simply 
unenforceable. In other words, it is not feasible (Ex. 12: 172, p. 
9).

    As an initial matter, OSHA notes that the marine cargo handling 
industry is not unique in its use of union hiring halls and labor 
pools, and that other industries also use these methods to hire 
employees, including construction and shipyards. The fact that 
employees are obtained from a hiring hall does not change an employer's 
obligations under the OSH Act.\10\ Like many others, commenters in the 
longshoring industry assumed that the rule would have banned employee-
owned PPE. As explained in the section on employee-owned PPE, an 
employer can allow the use of PPE that the employee provides when he or 
she arrives at work. Thus, if a port association purchases and provides 
the PPE to employees, OSHA does not object. Of course, the employer 
must ensure that the type of and condition of the PPE is adequate to 
protect the employee against the hazards present in the workplace. The 
point of this PPE payment standard is to ensure that the PPE used to 
comply with OSHA standards is provided by the employer at no cost to 
employees.
---------------------------------------------------------------------------

    \10\ For example, OSHA's compliance directive CPL 02-01-028--CPL 
2-1.28A--Compliance Assistance for the Powered Industrial Truck 
Operator Training Standards explains that ``Each employer for whom 
an employee works is responsible for ensuring that the employee has 
been trained in accordance with the standard. In hiring hall 
situations, the training under Sec.  1910.178(l)(3)(i), truck-
related topics, may be conducted by a labor union, joint labor/
management training organization, an association of employers, or 
another third-party trainer as long as the person(s) conducting the 
training have the knowledge, training, and experience to properly 
conduct the training''.
---------------------------------------------------------------------------

    As the International Union of Operating Engineers (IOUE) noted:

    Workers in these industries should have no less protection 
because of the nature of the employer-employee relationship in the 
ports. It is the IUOE's experience that its members have no desire 
to collect closets full of safety-toe footwear and dresser drawers 
full of protective prescription eyewear. Employers may inquire if 
workers already have suitable steel toe footwear and prescription 
eyewear. If so, most workers will gladly use it as they change 
employers. If the worker does not have the PPE, then the employer 
should pay for it. Over time the cost of paying for PPE should even 
out for port employers (Ex. 12: 134).

    OSHA has included marine terminal and longshore employers and 
employees in the final PPE payment standard. OSHA is confident that the 
industry will solve the hiring hall employment problem with this OSHA 
standard, just as it has for all other OSHA standards that apply to the 
industry. For example, the employers in the industry may work with 
their port associations and the hiring halls that provide labor to 
coordinate the provision of PPE. OSHA notes that it already has 
standards that require employer payment for certain types of PPE. There 
is no evidence in the record that employers in the marine cargo 
handling industry, or other hiring hall industries, have difficulty 
applying these standards to their employment situation.
    USMX and the CCC argued that OSHA should have consulted with the 
Agency's Maritime Advisory Committee for Occupational Safety and Health 
(MACOSH) before issuing the proposed rule (Ex. 13: 7). OSHA notes that 
under section 107 of the Contract Work Hours and Safety Standards Act 
(40 U.S.C. 333, of 1973, commonly known as the Construction Safety Act) 
and OSHA's own regulations at 29 CFR Part 1912,

[[Page 64365]]

the Agency is required to consult with the Advisory Committee on 
Construction Safety and Health (ACCSH) regarding the setting of 
construction standards. However, unlike ACCSH, there is no requirement 
for OSHA to consult with MACOSH prior to issuing a proposed regulation 
or standard affecting the maritime sectors. While the Agency may seek 
the advice of MACOSH on a rulemaking during the pre-proposal stage, and 
often does so, there is no requirement to that effect. Furthermore, 
maritime interests had numerous opportunities to comment on the rule 
during the extensive rulemaking process used by the Agency.
    USMX and CCC also argued that longshore employees are well 
compensated and can afford their own PPE. The relative pay of longshore 
employees compared to employees in other sectors is immaterial to the 
OSHA regulations and standards. Each employee is entitled to the 
protections afforded under the Act, including by this standard. It is 
therefore the duty of the employer to provide PPE at no cost to their 
employees regardless of the employees' pay level or employment 
benefits.

F. Shipyards

    Shipyard employers and employees are covered by the OSHA standards 
at 29 CFR Part 1915. Shipyards engage in several industrial activities, 
including ship building, ship repair, barge cleaning, and ship 
breaking. To the extent that the Part 1915 standards do not cover a 
specific safety or health hazard, the Part 1910 general industry 
standards apply. (See CPL 02-00-142, Shipyard Employment ``Tool Bag'' 
Directive for further details.) In the preamble to a 1996 rulemaking 
revising the Shipyard PPE standards, OSHA reiterated the 1994 policy 
requiring payment for PPE unless it was personal in nature and used off 
the job (61 FR26327). The Agency subsequently included the shipyard 
standards in the 1999 proposal to revise its PPE standards for all 
industries (64 FR15402). Several shipyard interests commented on the 
proposed PPE payment standard (See, e.g., Exs. 7; 12: 29, 65, 112, 210; 
13: 6, 21; 35).
    Despite the 1996 preamble discussion, the PPE payment practices 
reported by these commenters varied widely. For example, Newport News 
Shipyard reported that it pays for all PPE required by the final 
standard, and asked only for clarification of items for which employer 
payment is not required (Ex. 12: 210). (See Section V for a discussion 
the PPE for which employer payment is required.). Other shipyards 
reported a variety of PPE payment practices. Avondale Shipyards 
Division reported that they pay for most PPE but require employees to 
pay for certain welding PPE, safety-toe shoes, and safety glasses (Ex. 
12: 112). Ingalls Shipbuilding had the same policy, but also required 
employees to pay for their own hard hats (Ex. 12: 29). The Shipbuilders 
Council of America (SCA) polled 50 shipyard companies and reported a 
variety of payment practices for 13 types of PPE. Employer payment 
practices ranged from 5 percent for safety shoes to 100 percent for 
fall protection and chemical protective equipment. These employers also 
reported various policies that required their employees to pay for some 
equipment and share costs with the employer for other types of PPE (Ex. 
12: 65).
    Many of these shipyard commenters believed employees should pay for 
their own welding PPE, and especially welding leathers. This issue is 
discussed in more detail in section V ``PPE for which employer payment 
is required''. Others argued the shipyard workforce has frequent 
employee turnover and that PPE carried from job to job should be 
exempted. As noted earlier, the Agency sees no reason to provide less 
protection for short-term employees. The shipyard industry's turnover 
rates do not appear to be significantly higher than the rates for 
construction and marine terminals (See the economic analysis for a 
comparison of turnover rates). Furthermore, the Agency has not received 
any comments that would warrant an exception for an entire industry. 
After careful consideration, OSHA has promulgated the same final rule 
for shipyards that it is issuing for other industries.

G. Construction

    Construction employers are covered by the OSHA standards at 29 CFR 
Part 1926. The 1999 proposal covered the construction industry, just as 
it covered other industries. In fact, OSHA noted in the proposal that:

    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? (64 FR 15416).

    In response to the proposal, OSHA received more comments from the 
construction industry than any other industry sector. Construction 
interests accounted for nearly half of the 350 comments received by the 
Agency.\11\ The commenters noted that ``The issue of who pays for PPE 
has long been a contentious one in the construction industry'' and 
noted five major reasons for their opposition to the rulemaking, 
several of which were also articulated by commenters outside of the 
construction industry. First, these commenters asserted that the 
proposed rule is beyond OSHA's statutory authority. The Legal Authority 
section of this preamble explains that OSHA is well within its 
statutory mandate to issue this rule.
---------------------------------------------------------------------------

    \11\ More than 125 companies engaged in residential home 
building and associated subcontractors submitted nearly identical 
letters, which will be referenced as ``Form Letter A'' (See, e.g., 
Exs. 12-22; 23, 24, 25, 26, 27, 30, 33, 34, 35, 36, 37, 39, 40, 41, 
46, 47, 54, 56, 57, 59, 60, 61, 62, 63, 64, 67, 68, 69, 70, 71, 72, 
73, 74, 75, 76, 77, 78, 80, 81, 82, 83, 84, 85, 86, 87, 88, 90, 92, 
93, 94, 96, 97, 98, 103, 115, 118, 119, 120, 121, 122, 123, 124, 
125, 126, 127, 128, 132, 136, 137, 138, 139, 140, 142, 143, 147, 
148, 156, 157, 158, 159, 160, 162, 166, 168, 170, 174, 175, 176, 
177, 178, 179, 180, 185, 186, 192, 193, 194, 195, 196, 197, 198, 
199, 200, 202, 205, 208, 212, 213, 215, 216, 219, 223, 224, 225, 
226, 227, 231, 232, 234, 236, 237, 238, 239, 240, 241, 242).
---------------------------------------------------------------------------

    Second, the commenters argued that the proposed rule would limit 
employers' flexibility in managing safety and health at their 
workplaces. The standard does not limit employers in implementing and 
managing their safety and health programs, an activity OSHA encourages. 
Commenting employers in OSHA's Voluntary Protection Programs (VPP), all 
of whom have implemented OSHA-approved safety and health management 
systems, unanimously supported employer payment for PPE, and did not 
suggest any negative effects on their safety and health management 
systems (See, e.g., Exs. 12: 113, 210).
    Third, the commenters argued that the proposed rule would give 
employees the freedom to be irresponsible with company-owned PPE, and 
urged OSHA to specify when an employer can charge an employee for lost 
PPE. Employers have a number of means available to address 
circumstances where employees do not follow company rules or are 
irresponsible with company equipment. Two such means are increased 
education efforts and disciplinary systems. With respect to the latter, 
OSHA expects employers to fairly enforce reasonable and appropriate 
disciplinary systems as part of their

[[Page 64366]]

overall effort to comply with OSHA standards and establish effective 
workplace safety and health programs. Nothing in this rule prevents 
employers from implementing these disciplinary systems. The Replacement 
PPE section of this preamble provides a discussion of this topic.
    Fourth, these commenters, along with many others, (See. e.g., Exs. 
12: 18, Form letter B \12\) argued that employee payment for PPE will 
ensure that the PPE is maintained in good working order. Commenters 
also noted that employers would be inclined to purchase PPE that is 
less expensive (and perhaps less safe) than that purchased by 
employees, or that employees would be inclined to purchase less 
expensive PPE that would not meet the minimum PPE standards established 
by the American National Standards Institute (ANSI) (Ex. 12: 134, 218). 
The Agency addresses this issue in Section XIV, Legal Authority.
---------------------------------------------------------------------------

    \12\ Approximately 30 electrical contractors submitted identical 
comments, which will be referenced as ``Form Letter B'' (See, e.g., 
Exs. 45: 6 7, 8, 9, 10, 11, 12, 14, 15, 16, 19, 20, 22, 23, 24, 29, 
31, 38, 41, 44, 45, 46, 47; 46: 21, 22, 23, 24, 25, 29, 38; 47: 1).
---------------------------------------------------------------------------

    Fifth, and last, the commenters asserted that employers would need 
to keep receipts to prove payment to an OSHA inspector or Compliance 
Safety and Health Officer (CSHO). Employers in all industries, 
including construction, typically keep receipts and other transaction 
records as part of their accounting systems to comply with standard 
accounting practices and various business regulations. For example, 
such receipts could be needed to prepare the employer's income tax 
forms. Notwithstanding this usual practice, nothing in the final rule 
requires employers to keep receipts to prove that they paid for PPE. 
Generally, PPE payment practices can be determined through management 
and employee interviews.
    Similar to the home builders, a group of about 30 electrical 
contractors submitted nearly identical comments (Form Letter B). These 
contractors, which included the National Electrical Contractors 
Association (NECA), urged the Agency to exempt certain items of 
electrical PPE from the payment requirements because they viewed them 
as tools of the electrical trade. After considering the comments 
provided, OSHA has rejected the ``tools of the trade'' concept and 
employers will generally be required to provide most of these items at 
no cost to employees. These comments are discussed in Section V, ``PPE 
for which payment is required,'' and Section VII, ``Other alternatives 
considered during the rulemaking process.''
    Similar to comments from the maritime and longshoring sectors, a 
number of construction-related commenters noted the transient nature of 
construction work and the high turnover rates in the industry. Many of 
them argued that the short-term employment nature of the industry 
should influence OSHA's decisions in the final standard (See, e.g., 
Exs. 12: 102, 153, 207, 229; 45: 28; form letter A; form letter B). The 
Betco Scaffold Company remarked that:

    The services provided by the scaffolding industry in support of 
both industry and construction is of short job duration and for the 
greatest extent provided by temporary employees who travel from job 
to job. There is a high turnover rate and employees systematically 
walk off jobs abruptly and without notice, taking with them their 
tools and any and all PPE. There is seldom a tool room or 
construction shack on site due to the short duration of the jobs. 
Equipment losses and non-recovery of employer furnished PPE will 
amount to an economic burden that cannot be recovered (Ex. 12: 18).

    Other commenters argued that the transient nature of the industry 
should not result in reduced protection (See, e.g., Exs. 12: 234, 218) 
or that OSHA should make the rule fair for all employees (See, e.g., 
Exs. 12: 134, 190). In a typical comment, the IUOE remarked that:

    [w]orker turnover should not be a consideration in determining 
whether a construction employer should be required to pay for PPE. 
Construction workers should not receive less protection than other 
industries where turnover may be less. If all construction employers 
are required to pay for all PPE, contractors may pass on the costs 
to construction owners in their contract price. This will level the 
playing field for bidders on construction work (Ex. 12: 234).

    There is no logical basis for providing different protections for 
different classes of employees, as described by these commenters, and 
any such differentiation is not supported by the OSH Act or case law. 
Consequently, the Agency does not consider employee turnover as a 
reasonable basis for excluding the construction industry (or any other 
industry) from the PPE payment standard.
    Several commenters noted that employers may be compelled to incur 
the cost of purchasing specific brands or styles of PPE due to employee 
preference, even though such PPE does not provide additional protection 
(Ex. 12: 21, 79, 99). OSHA emphasizes that employers are not required 
to purchase all of the PPE requested by their employees but rather are 
responsible for ensuring that adequate PPE is used to comply with OSHA 
standards, and that the PPE used to comply with OSHA standards is 
provided at no cost to their employees. Section VI ``Employee-owned 
PPE'' addresses employee-upgraded PPE.
    Finally, OSHA notes that several construction commenters supported 
the PPE payment proposal (See, e.g., Exs. 12: 99, 134, 153, 190). For 
example, Associated Builders and Contractors, Inc., a national 
association representing 24,000 construction and construction-related 
firms in 79 chapters across the United States primarily performing work 
in industrial and commercial construction initially opposed the 
proposed standard (Ex. 12: 153). However, in an August 23, 2004 
comment, the trade association noted that ``ABC, with the guidance of 
its Safety, Environmental, and Health Committee, has decided to support 
the requirement that employers pay for PPE with some exceptions'' (Ex. 
46: 41). Those exceptions were that safety-toe protective footwear and 
prescription safety eyewear should be the responsibility of employees, 
that employers should not have to replace PPE damaged due to employee 
misconduct, and that employers should be compensated by employees for 
PPE removed from the jobsite without the employer's permission. These 
issues are discussed in the preamble section dealing with PPE for which 
payment is required, and the replacement PPE section.

VIII. Acceptable Methods of Payment

    Under the final rule, an employer may utilize any method of 
payment, as long as it results in PPE being provided to that employer's 
employees at no cost. Many methods are available, and employers are 
free to choose a single payment method for all types of PPE, or 
different payment methods for different types of PPE. From its review 
of the comments, OSHA has identified four methods that employers 
currently use to provide PPE at no cost to their employees: (1) 
Employer purchase and distribution, (2) allowances, (3) vouchers, and 
(4) employer reimbursement to employees. As explained below, in general 
these methods are acceptable, and employers may choose these options or 
develop other methods. At bottom, however, OSHA believes that PPE use 
and effectiveness improves when employers exercise greater control over 
the purchasing process.

A. Employer Purchase and Distribution

    On this record, the method that appears to be the most effective 
way for

[[Page 64367]]

employers to provide PPE to their employees is for employers to 
purchase the PPE themselves, keep a ready supply of PPE, and distribute 
the PPE directly to their employees. This method ensures that the PPE 
meets the specifications the employer has set through the hazard 
assessment/PPE selection process. It also provides the simplest means 
of ensuring the quality of the equipment and minimizes the need to 
individually assess each employee's choice of PPE.
    There are many additional advantages to be gained through this 
approach. By maintaining a PPE inventory, the employer can provide 
immediate replacements for PPE that may become deficient due to wear 
and tear or accidental damage. OSHA's standards require the employee to 
be protected when exposed to a hazard. If replacement PPE is not 
readily available to replace deficient PPE, the employee may not be 
able to complete his or her shift, resulting in lost productivity for 
the employer. The employer may also purchase the equipment in bulk. 
This would produce a cost savings to the employer through bulk purchase 
discounts as well as standardized equipment that would be easier to 
repair and maintain.

B. Allowances

    A number of commenters raised the issue of using employee 
allowances to procure PPE (See, e.g., Exs. 12: 153, 188; 46: 43). In an 
allowance system, an employer gives an employee a certain amount of 
money to use to purchase specific PPE. OSHA does not object to 
allowances as a means of paying for PPE, as long as the allowance 
policy ensures that employees receive appropriate PPE at no cost.
    As several commenters noted, an allowance system is a common 
practice and it appears that in many cases it is an effective and 
convenient method for providing PPE to employees at no cost. On the 
other hand, an allowance system may create the need for the employer to 
put in place a more rigorous method to ensure that the PPE is adequate 
for the job. While the employer can take several steps to guide 
employees in their purchase, such as giving employees a list of 
approved vendors or PPE specifications, the employer may need to follow 
up with employees and inspect the PPE.

C. Vouchers

    Another system employers currently use to purchase PPE is a voucher 
system. In this system, an employer typically has an arrangement with a 
local retailer or distributor of PPE whereby the retailer or 
distributor will accept a voucher from the employer for a particular 
type of PPE in lieu of direct payment. The retailer or distributor then 
directly bills the employer for the PPE after processing the voucher. 
Some employers find this system administratively convenient; it also 
avoids having to pay money to an employee before the purchase is made 
in the form of an allowance.

D. Employee Purchase With Employer Reimbursement

    Some employers may decide to use an employee reimbursement method 
for providing PPE. Under this type of system, the employer requires the 
employee to purchase the PPE and then reimburses the employee for the 
cost of the purchase. This method has most of the same advantages and 
disadvantages as allowances and vouchers. The difference is that the 
employee is provided the funds after the PPE is purchased, instead of 
before.
    Some commenters raised an issue that applies to allowances, 
vouchers, and reimbursement. These commenters asked whether or not an 
employer would be required to reimburse an employee for time and travel 
expenses to shop for PPE to ensure that PPE was provided at no cost. 
The SHRM remarked:

    SHRM's understanding is that OSHA never contemplated that the 
employer payment obligation would extend beyond the purchase price 
of the PPE to include the time the employee would spend acquiring 
the PPE. * * * For example, it would be fairly common for an 
employee to travel to an employer-designated shoe store where the 
employer has an account. The employee would have the ability to 
review available shoe models, select the model and size that best 
meets the employee's needs (up to a specified allowance with the 
employee paying for any amount in excess of the allowance), and 
possibly get some personalized fitting. * * * Payment of 
compensation for the time spent shoe shopping would be an 
unreasonable burden, would likely exceed the cost of the PPE, and 
would be fraught with the potential for abuse and make it difficult 
to administer (Ex. 46: 43).

    OSHA does not intend the rule to cover time and travel expenses an 
employee might incur while shopping for PPE during non-work hours. OSHA 
recognizes that this position differs from the position the Agency has 
consistently taken with respect to employee time and travel expenses 
for medical services in several other standards (See, e.g., lead 
standard at Sec.  1910.1025(j)(1)(iii) and bloodborne pathogens 
standard at Sec.  1910.1030(f)(1)(ii)). These standards also use the 
terms ``at no cost'' and OSHA has interpreted them as requiring 
employer payment for the time and travel costs an employee incurs for 
receiving required medical services during non-work hours. See Phelps 
Dodge Corp. v. Occupational Safety and Health Review Comm., 725 F.2d 
1237 (9th Cir. 1984). The underlying reason for OSHA's position was 
that the time and travel needed to obtain the required medical services 
could be so great that if employees were not compensated for it, they 
would delay visiting a health care provider (HCP), resulting in delayed 
diagnosis and treatment. Even worse, they might opt not to participate 
in the employer's medical surveillance program at all. As described 
below, OSHA believes that time and travel required to purchase PPE is 
much less than that required for medical services. Because of this, 
OSHA does not believe that requiring employees to shop for PPE on their 
own outside of work would serve as a disincentive to acquiring the PPE.
    First, the amount of time required to visit an HCP, wait to see the 
HCP, get any required tests taken, and consult the HCP about the 
results is much longer than the time needed to purchase PPE. OSHA has 
found with respect to medical screening and surveillance that the 
amount of time required to obtain services is quite long in certain 
circumstances and if employers did not pay for the time and travel 
involved, employees might forego the examinations. See e.g., Phelps 
Dodge, 725 F.2d at 1238 (actual time required for medical examinations, 
including transportation and waiting was ``an hour or more''). 
Furthermore, employees on occasion need to make multiple trips to an 
HCP. While employers are often required to offer medical surveillance 
to employees, employee participation in medical surveillance programs 
is sometimes not required by OSHA standards, and employees may decline 
to participate. As such, the time spent to participate may act as a 
disincentive to employees if they were not compensated for time and 
travel. These considerations do not apply to shopping for PPE.
    Second, unlike medical services where the employee would almost 
certainly have to travel in person to the HCP, there are many options 
available for employees to acquire PPE on their own and some of these 
involve no travel. There are many retail locations that sell PPE, and 
in many cases the employee may already be going to the retail location 
for personal shopping. In addition, there are numerous catalogue and 
internet retailers available for employees to shop for equipment.

[[Page 64368]]

OSHA does not believe that the extra time needed to acquire PPE outside 
of work hours would serve as a significant disincentive to employees 
getting the PPE.
    For these reasons, employers are not required to reimburse 
employees for time spent shopping for PPE or for travel expenses 
related to PPE shopping.

IX. Effective Dates

    Each of the PPE payment standards includes an effective date 
paragraph to establish the dates when employers will be fully 
responsible for meeting the PPE payment requirements. (See Sec.  
1910.132(h)(7), Sec.  1915.152(f)(7), Sec.  1917.96(f), Sec.  
1918.106(f), and Sec.  1926.95(d)(7)) Each affected standard will 
become effective on February 13, 2008. This date is 90 days from the 
date of publication in the Federal Register. The Agency sets the 
effective date to allow sufficient time for employers to obtain the 
standard, read and understand its requirements, and undertake the 
necessary planning and preparation for compliance. The 90-day effective 
date has been established to comply with section 6(b)(4) of the OSH 
Act, which provides that the effective date for a standard may be 
delayed for up to 90 days from the date of publication in the Federal 
Register.
    Despite the 90-day effective date, OSHA is extending the compliance 
deadlines for the final standard so employers will be given six months 
to fully comply with the new requirements. By extending the deadline to 
comply with the PPE payment provisions, OSHA will minimize the impact 
of the rule on existing collective bargaining agreements, and give 
businesses (including small businesses) needed time to implement the 
requirements.
    A number of commenters remarked that existing collective bargaining 
agreements containing PPE provisions would be affected by the final 
standard (See, e.g., Exs. 12: 14, 16, 17, 21, 43, 65, 66, 79, 117, 172, 
173, 183, 188, 189). Several argued that the final rule would have a 
negative effect on employers that have existing collective bargaining 
agreements (See, e.g., Exs. 12: 14, 16, 17, 65, 79, 173, 183, 188, 
189). The Association of Electric Cooperatives noted that,

    OSHA should keep in mind that payment arrangements for PPE are 
frequently part of the employers' negotiations with the labor union. 
As such, when stating the effective date of the rule, consideration 
should be made to current union contracts. The Association 
recommends that the effective date of the rule allow for current 
labor contracts to run their course. Employer's payment of PPE, in 
most cases, will take effect at the signing of the next contract 
(Ex. 12: 183).

    OSHA has not implemented a compliance deadline that would allow all 
collective bargaining agreements to expire and be renegotiated before 
the rule takes effect. This would take several years and would result 
in undue delay of the safety and health benefits that the Agency 
expects will result from the rule. The six-month compliance deadline 
will allow sufficient time for some collective bargaining agreements to 
expire and will provide a reasonable interval for employers and unions 
to work out the specific methods by which PPE will be provided to 
employees at no cost.
    The six-month compliance date will also give businesses time to 
establish systems for effectuating employer payment. As discussed 
above, employers may utilize a number of different methods to ensure 
that PPE is provided at no cost to employees. Allowing a six-month 
compliance deadline will give employers time to determine what method 
is best for their business and implement the method before the rule 
takes effect.
    The six-month compliance deadline will also help minimize the 
burden on small businesses. Some commenters urged OSHA to consider the 
special needs of small business entities when considering the effective 
date of the standard (See, e.g., Exs. 12: 3, 68, 145). Douglas Battery 
suggested the ``[e]stablishment of a size threshold (or other measure) 
at which the cost of providing PPE becomes a shared responsibility 
between employers and employees for some specified period'' (Ex. 12: 
3).
    OSHA has not implemented a phased-in approach as recommended by 
Douglas Battery because doing so would be overly complex, cumbersome, 
and delay the benefits of the final rule. However, the Agency believes 
that the six-month compliance deadline will give the large number of 
small businesses covered by the standard sufficient time to work with 
PPE suppliers to obtain needed equipment and negotiate bulk discount 
prices. In some cases, very small employers may choose to join together 
and coordinate their PPE acquisition efforts through a local trade 
association or co-op to obtain bulk discounts on equipment. The 
extended compliance deadline will provide time to set up such 
arrangements.

X. Effect on Existing Union Contracts

    Many collective bargaining agreements contain language specifying 
that employers will provide certain PPE to employees at no cost and 
some specify certain PPE that employees will be responsible for 
providing (and paying for) themselves. The final standard could have an 
impact on these agreements. OSHA has carefully considered the impact of 
the final rule on collective bargaining agreements and has determined 
that workplaces with collective bargaining agreements should be treated 
no differently in the final rule than workplaces without collective 
bargaining agreements. However, to reduce impacts on existing 
collective bargaining agreements, OSHA is establishing a six-month 
compliance deadline for the final rule. This will allow some existing 
collective bargaining agreements to expire or provide employers and 
employees time to renegotiate agreements to conform to the final rule.
    Many stakeholders commented on the extent to which an employer 
payment for PPE rule would impact existing collective bargaining 
agreements. Some union commenters stated that an employer payment rule 
would affect collective bargaining agreements in the same way as other 
OSHA safety and health standards and that OSHA should not make any 
exceptions from the rule for workplaces governed by collective 
bargaining agreements (See, e.g., Exs. 12: 14, 16, 17, 21, 65, 79, 99, 
167, 173, 183, 188, 189).
    One commenter noted that most collective bargaining agreements 
contain language requiring employers to pay for all required PPE (Ex. 
12: 105). Some commenters supported the rule on the basis that it would 
create a level playing field for union and non-union employees (Ex. 12: 
110) by ensuring that in both cases employees are provided PPE ``at no 
cost'' and ensure that more employees, including non-union employees, 
would be afforded the same protections (Ex. 12: 113).
    Some commenters, on the other hand, asserted that the rule 
inappropriately interferes with existing collective bargaining 
agreements because PPE payment is a traditional and mandatory subject 
of collective bargaining under federal law, and thus violates the 
policies of federal labor legislation governing employer and employee 
negotiation over workplace conditions (See e.g., 12: 43, 173, 189). 
Caterpillar, Inc., remarked that ``Payment sharing procedures that have 
been developed through years of collective bargaining will be unjustly 
modified by this proposal'' (12: 66).
    OSHA finds that the final rule does not inappropriately interfere 
with collective bargaining agreements. The

[[Page 64369]]

impact of OSHA standards on collective bargaining has been discussed by 
OSHA in past rules. OSHA has consistently stated that the duty to 
bargain with unions over safety and health matters does not excuse 
employers from complying with OSHA standards. This principle has been 
upheld by the courts (See, e.g., Forging Industries at 1451-1452). In 
United Steelworkers of America v. Marshall, 647 F.2d 1189, 1236 
(D.C.Cir.1980) the court observed:

    In passing a massive worker health and safety statute, Congress 
certainly knew it was laying a basis for agency regulations that 
would replace or obviate worker safety provisions of many collective 
bargaining agreements. Congress may well have viewed collective 
bargaining agreements along with state worker's compensation laws as 
part of the status quo that had failed to provide workers sufficient 
protection (Id. at 1236).

    OSHA sees no distinction between this rule and other OSHA standards 
placing obligations on employers. In fact, in numerous past rulemakings 
OSHA has required employers to provide PPE ``at no cost''; none of 
these rules has been overturned because they inappropriately interfered 
with collective bargaining. Compliance with the rule does not conflict 
with employers'' obligations to bargain over mandatory subjects of 
bargaining under the National Labor Relations Act (NLRA).
    Additionally, the rule does not foreclose bargaining about 
discretionary aspects of the standard such as the means by which the 
employer will provide the PPE to employees so that it results in no 
cost to the employees, payment arrangements for equipment that is not 
covered by the final rule, and so forth. As courts have found, to the 
extent the employer has discretion in the means by which it achieves 
compliance, and the means involve a mandatory subject of bargaining, 
the employer is not only free to bargain but would be required to 
bargain with the union regarding the means of compliance. United 
Steelworkers, 647 F.2d at 1236 (``[w]hen an issue related to earnings 
protection not wholly covered by OSHA regulation arises between labor 
and management, it will remain a mandatory subject of collective 
bargaining''); see Watsonville Newspapers, LLC, 327 N.L.R.B. No. 160, 
slip op. 2-3 (Mar. 24, 1999); Dickerson-Chapman, Inc., 313 N.L.R.B. 
907, 942 (1994) (although employer must comply with OSH Act standard 
requiring daily inspections of open excavations by a ``competent 
person,'' employer must bargain with union about who would be so 
designated); Hanes Corp., 260 N.L.R.B. 557, 561-562 & n.12 (1982) 
(where OSHA standard required use of respirators but gave employer 
discretion with respect to choice of respirator, employer could require 
use of respirator without bargaining, but could not unilaterally 
determine which approved respirator would be used).
    OSHA has repeatedly emphasized the importance of involving employee 
representatives in all aspects of workplace safety and health. The 
Agency believes that employers and unions have been able to meet both 
their responsibilities under OSHA's standards and their duty to bargain 
under the NLRA. This has been the case with other OSHA rules, and the 
Agency believes that employers and employees will be able to do the 
same under the PPE payment standards.
    One commenter remarked that ``[t]here is no evidence that the 
collective bargaining process is broken'' (12: 189) while another 
observed that relying on collective bargaining for the payment of PPE 
is an ``inadequate solution'' (Ex. 12: 100). OSHA notes that many 
employees are not represented by unions, so relying on collective 
bargaining as an alternative to the final rule would not be effective. 
It also would be impractical to create an exception for workplaces 
covered by collective bargaining agreements, because doing so would 
result in unequal protection for employees depending on whether a 
collective bargaining agreement is in place or not. An exception would 
also be a cumbersome and unduly complex provision to enforce.
    While OSHA does not believe there is a need or sound rationale for 
providing an exception to employers whose employees are represented 
under a collective bargaining agreement, the Agency does not want to 
cause undue disruption to existing collective bargaining agreements. 
Therefore, as explained in the Effective Dates section of this 
preamble, the Agency has extended the compliance deadline for the 
standard by six months. This will allow some collective bargaining 
agreements to expire. In these cases employers and unions can 
renegotiate the contract to reflect the new realities imposed by the 
rule. In other cases, the six-month compliance deadline allows 
employers, employees, and employee representatives to either conduct 
mid-term bargaining or otherwise come to an agreement concerning their 
methods for implementing the final rule.

XI. Effect on Other OSHA Standards

    As noted above, many of OSHA's existing standards specify whether 
or not the employer is required to provide required PPE at no cost to 
employees. Other standards are silent on the issue of payment. OSHA is 
setting forth clearly in a note to the final rule that when an employer 
payment provision in another OSHA standard specifies whether or not the 
employer must pay for specific equipment, the payment provision of the 
other standard shall prevail over the provision in this final rule.
    This rule is meant to apply to all OSHA standards requiring PPE. 
This includes the general employer payment requirement included in the 
final rule, in addition to the exceptions given. For other standards 
that already require employers to provide a certain type of PPE at no 
cost, this final rule ``amends'' those standards to include the 
exceptions for employee-owned PPE, replacement PPE, etc. Thus, this 
final rule must be read in concert with the other standards that 
require employer payment for PPE. It is only in those instances where 
another standard specifically addresses an aspect of PPE payment that 
is also specifically addressed in this final rule, that the provisions 
of the other standard govern.
    For example, if an OSHA health standard states only that employers 
must provide PPE ``at no cost'' to employees, and includes no 
exceptions to that requirement, the exceptions in this final rule would 
apply to employers and employees performing work covered by that 
standard. Conversely, if another OSHA standard includes ``at no cost'' 
language and specifically requires employers to pay for all replacement 
PPE--regardless of whether the PPE was lost or intentionally damaged--
that other OSHA standard would govern an employer's obligation with 
respect to replacement PPE, as opposed to this final rule.
    A question naturally arises regarding future rulemakings and how 
PPE payment will be addressed when a rulemaking has PPE requirements. 
Generally, OSHA intends that future rules with PPE requirements will 
require employers to provide the PPE at no cost to employees (with 
exceptions) in accord with its findings in this rule. However, it is 
difficult, if not impossible, to predict all the PPE issues and 
arguments that may arise in future rulemakings, and the specific PPE 
payment requirements that may be appropriate for those rules. It is 
entirely possible that some item for which payment is required under 
Sec.  1910.132(h) would be determined as exempted from payment, and 
similarly, an item exempted from payment under Sec.  1910.132(h) could 
be subject to

[[Page 64370]]

employer payment under some future standard.
    By adding a note in the regulatory text of the various standards, 
however, if OSHA decides to take a different position on PPE payment in 
a future rulemaking, it will not need to make a parallel change to the 
regulatory language of the relevant PPE payment standard (general 
industry, construction, shipyard, marine terminals, or longshore) set 
forth in this final rule. OSHA believes that this approach is more 
flexible and will be clearer to the regulated public.
    In the preamble to the proposed rule, OSHA listed many of the OSHA 
standards that include provisions requiring the use of PPE. For ease, 
OSHA is providing a similar list below. Some of these standards 
specifically include ``at no cost'' language and some do not. Employers 
need to carefully review their obligations under the standards that 
apply to them.

              Table XI-1.--OSHA Standards that Require PPE
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                      29 CFR 1910, General Industry
------------------------------------------------------------------------
1910.28......................  Safety requirements for scaffolds.
1910.66......................  Powered platforms for building
                                maintenance.
1910.67......................  Vehicle-mounted elevating and rotating
                                work platforms.
1910.94......................  Ventilation.
1910.95......................  Occupational noise exposure.
1910.119.....................  Process safety management of highly
                                hazardous chemicals.
1910.120.....................  Hazardous waste operations and emergency
                                response.
1910.132.....................  General requirements (personal protective
                                equipment).
1910.133.....................  Eye and face protection.
1910.134.....................  Respiratory protection.
1910.135.....................  Occupational Head protection.
1910.136.....................  Occupational foot protection.
1910.137.....................  Electrical protective equipment.
1910.138.....................  Hand protection.
1910.146.....................  Permit-required confined spaces.
1910.156.....................  Fire brigades.
1910.157.....................  Portable fire extinguishers.
1910.160.....................  Fixed extinguishing systems, general.
1910.183.....................  Helicopters.
1910.218.....................  Forging machines.
1910.242.....................  Hand and portable powered tools and
                                equipment, general.
1910.243.....................  Guarding of portable power tools.
1910.252.....................  General requirements (welding, cutting
                                and brazing).
1910.261.....................  Pulp, paper, and paperboard mills.
1910.262.....................  Textiles.
1910.265.....................  Sawmills.
1910.266.....................  Logging operations.
1910.268.....................  Telecommunications.
1910.269.....................  Electric power generation, transmission
                                and distribution.
1910.272.....................  Grain handling facilities.
1910.333.....................  Selection and use of work practices.
1910.335.....................  Safeguards for personnel protection.
1910.1000....................  Air contaminants.
1910.1001....................  Asbestos.
1910.1003....................  13 carcinogens, etc.
1910.1017....................  Vinyl chloride.
1910.1018....................  Inorganic Arsenic.
1910.1025....................  Lead.
1910.1026....................  Chromium (VI).
1910.1027....................  Cadmium.
1910.1028....................  Benzene.
1910.1029....................  Coke oven emissions.
1910.1030....................  Bloodborne pathogens.
1910.1043....................  Cotton dust.
1910.1044....................  1,2-dibromo-3-chloropropane.
1910.1045....................  Acrylonitrile.
1910.1047....................  Ethylene oxide.
1910.1048....................  Formaldehyde.
1910.1050....................  Methylenedianiline.
1910.1051....................  1,3-Butadiene.
1910.1052....................  Methylene chloride.
1910.1096....................  Ionizing radiation.
1910.1450....................  Occupational exposure to chemicals in
                                laboratories.
------------------------------------------------------------------------
                         29 CFR 1915, Shipyards
------------------------------------------------------------------------
1915.12......................  Precautions and the order of testing
                                before entering confined and enclosed
                                spaces and other dangerous atmospheres.
1915.13......................  Cleaning and other cold work.
1915.32......................  Toxic cleaning solvents.
1915.33......................  Chemical paint and preservative removers.
1915.34......................  Mechanical paint removers.

[[Page 64371]]

 
1915.35......................  Painting.
1915.51......................  Ventilation and protection in welding,
                                cutting and heating.
1915.53......................  Welding, cutting and heating in way of
                                preservative coatings.
1915.73......................  Guarding of deck openings and edges.
1915.77......................  Working surfaces.
1915.135.....................  Powder actuated fastening tools.
1915.153.....................  Eye and face protection.
1915.152.....................  General requirements.
1915.154.....................  Respiratory Protection.
1915.155.....................  Head protection.
1915.156.....................  Foot protection.
1915.157.....................  Hand and body protection.
1915.158.....................  Lifesaving equipment.
1915.159.....................  Personal fall arrest systems (PFAS).
1915.160.....................  Positioning device systems.
1915.504.....................  Fire watches.
1915.505.....................  Fire response.
1915.1001....................  Asbestos.
1915.1026....................  Chromium (VI).
------------------------------------------------------------------------
                      29 CFR 1917, Marine Terminals
------------------------------------------------------------------------
1917.22......................  Hazardous cargo.
1917.23......................  Hazardous atmospheres and substances.
1917.25......................  Fumigants, pesticides, insecticides and
                                hazardous waste.
1917.26......................  First aid and lifesaving facilities.
1917.49......................  Spouts, chutes, hoppers, bins, and
                                associated equipment.
1917.73......................  Terminal facilities handling menhaden and
                                similar species of fish.
1917.91......................  Eye and face protection.
1917.92......................  Respiratory protection.
1917.93......................  Head protection.
1917.94......................  Foot protection.
1917.95......................  Other protective measures.
1917.118.....................  Fixed ladders.
1917.126.....................  River banks.
1917.152.....................  Welding, cutting and heating (hot work).
1917.154.....................  Compressed air.
------------------------------------------------------------------------
       29 CFR 1918, Safety and Health Regulations for Longshoring
------------------------------------------------------------------------
1918.85......................  Containerized cargo operations.
1918.88......................  Log operations.
1918.93......................  Hazardous atmospheres and substances.
1918.94......................  Ventilation and atmospheric conditions.
1918.101.....................  Eye and face protection.
1918.102.....................  Respiratory protection.
1918.103.....................  Head protection.
1918.104.....................  Foot protection.
1918.105.....................  Other protective measures.
------------------------------------------------------------------------
       29 CFR 1926, Safety and Health Regulations for Construction
------------------------------------------------------------------------
1926.28......................  Personal protective equipment.
1926.52......................  Occupational noise exposure.
1926.55......................  Gases, vapors, fumes, dusts, and mists.
1926.57......................  Ventilation.
1926.60......................  Methylenedianiline.
1926.62......................  Lead.
1926.64......................  Process safety management of highly
                                hazardous chemicals.
1926.65......................  Hazardous waste operations and emergency
                                response.
1926.95......................  Criteria for personal protective
                                equipment.
1926.96......................  Occupational foot protection.
1926.100.....................  Head protection.
1926.101.....................  Hearing protection.
1926.102.....................  Eye and face protection.
1926.103.....................  Respiratory protection.
1926.104.....................  Safety belts, lifelines and lanyards.
1926.105.....................  Safety nets.
1926.106.....................  Working over or near water.
1926.250.....................  General requirements for storage.
1926.300.....................  General requirements (Hand and power
                                tools).
1926.302.....................  Power-operated hand tools.
1926.304.....................  Woodworking tools.
1926.353.....................  Ventilation and protection in welding,
                                cutting and heating.
1926.354.....................  Welding, cutting and heating in way of
                                preservative coatings.

[[Page 64372]]

 
1926.416.....................  General requirements (Electrical).
1926.451.....................  General requirements (Scaffolds).
1926.453.....................  Aerial lifts.
1926.501.....................  Duty to have fall protection.
1926.502.....................  Fall protection systems criteria and
                                practices.
1926.550.....................  Cranes and derricks.
1926.551.....................  Helicopters.
1926.605.....................  Marine operations and equipment.
1926.701.....................  General requirements (Concrete and
                                masonry construction).
1926.760.....................  Fall protection (Steel erection).
1926.800.....................  Underground construction.
1926.951.....................  Tools and protective equipment.
1926.955.....................  Overhead lines.
1926.959.....................  Lineman's body belts, safety straps, and
                                lanyards.
1926.1053....................  Ladders.
1926.1101....................  Asbestos.
1926.1126....................  Chrome (IV).
1926.1127....................  Cadmium.
------------------------------------------------------------------------

XII. Miscellaneous Issues

    The vast majority of the comments received from various parties 
during the rulemaking process have been answered in other sections of 
the preamble relating to the specific PPE payment issues raised. 
However, some commenters raised a number of issues that do not deal 
directly with PPE payment, but rather with aspects of rulemaking 
procedure, OSHA's underlying analysis supporting the rulemaking, or 
other issues related to PPE use. OSHA addresses those comments below.

A. Procedural Issues

    In developing this final rule, OSHA compiled an extensive 
rulemaking record. It received hundreds of comments on the proposal 
published in 1999, conducted four days of hearings, and gave interested 
parties four months to file post-hearing comments and briefs. 
Subsequently, on July 8, 2004, OSHA published a notice to re-open the 
record. The Agency solicited comment on how the final rule should 
address PPE that is customarily provided by employees (69 FR 41221). 
OSHA received over 100 comments on this issue. OSHA carefully reviewed 
and analyzed the comments and information provided in developing the 
final rule.
    Despite this, some commenters questioned a few aspects of the 
procedures OSHA used in developing the proposed rule, as well as the 
quality of the information and data relied on by the Agency. OSHA 
addresses these comments below.
1. Expert Panel
    In 1998, OSHA sponsored an expert panel of representatives from 
industry, labor, insurance companies, and safety equipment 
manufacturers and distributors to gather information about patterns of 
PPE use and payment. Based on the information provided by the panel and 
OSHA's enforcement experience, the Agency provided quantitative 
estimates of the difference in PPE usage when employers purchase the 
PPE versus when employees purchase.
    A few commenters raised concerns about OSHA's reliance on the 
information provided by the panel of experts (See Exs. 12: 173, 188, 
189). The Pacific Maritime Association (PMA) and United Parcel Service 
(UPS) both argued that the panel's activities were conducted in 
violation of the Federal Advisory Committee Act (``FACA''), 5 U.S.C. 
app. section 1 et seq. (Ex. 12: 173, 189). These comments stated that 
the panel ``[p]rovided information and discussed employer payment of 
personal-PE, which * * * falls within FACA's coverage of a `[p]anel * * 
* established or utilized by one or more agencies, in the interest of 
obtaining advice or recommendations * * *' '' (Ex. 12: 173, 189). 
Pursuant to FACA, notice of advisory committee meetings is to be 
published in the Federal Register, and such meetings are to be made 
open to the public (5 U.S.C. app. section 10(a)).
    These commenters misunderstand the scope of FACA's coverage and the 
role played by the expert panel in the rulemaking process. FACA does 
not apply to the expert panel described above. As explained in the 
regulations issued by the General Services Administration (GSA) to 
administer FACA, the statute does not apply to ``[a]ny group that meets 
with a Federal official(s) where advice is sought from the attendees on 
an individual basis and not from the group as a whole'' (41 CFR 102-
3.40(e). Also excluded from FACA is ``[a]ny group that meets with a 
Federal official(s) for the purpose of exchanging facts or 
information'' (41 CFR 102.3.40(f)).
    In Public Citizen v. U.S. Dept. of Justice, the Supreme Court 
examined the reach of FACA and concluded that the statute's definition 
of ``advisory committee'' ``[a]ppears too sweeping to be read without 
qualification'' (Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 
465 (1989). The Court further emphasized that ``[w]here the literal 
reading of a statutory term would `compel an odd result,' * * *we must 
search for other evidence * * * to lend the term its proper scope'' 
(Public Citizen, 491 U.S. at 454). The Court of Appeals for the DC 
Circuit provided additional guidance for determining whether a panel 
constitutes a FACA advisory committee.

    The point, it seems to us, is that a group is a FACA advisory 
committee when it is asked to render advice or recommendations, as a 
group, and not as a collection of individuals * * * [C]ommittees 
bestow * * *various benefits only insofar as their members act as a 
group. The whole, in other words, must be greater than the sum of 
the parts. Thus, an important factor in determining the presence of 
an advisory committee becomes the formality and structure of the 
group (Ass'n of Am. Physicians and Surgeons, Inc. v. Clinton, 997 
F.2d 898, 913-14 (DC Cir. 1993).

    OSHA assembled the expert panel for the purpose of gathering data, 
anecdotal evidence, and other information from each expert, which the 
Agency considered in drafting this rule. The panel was comprised of 
representatives from labor unions, employer associations, safety 
equipment distributors and manufacturers, and insurance companies. OSHA 
provided a questionnaire to the panel members so the Agency could learn 
each expert's opinions on various issues related to

[[Page 64373]]

PPE usage.\13\ OSHA did not seek a consensus answer to each question 
but rather assessed each expert's individual response to the questions. 
The Agency was interested in the range of experiences the different 
sectors had had with PPE. Furthermore, OSHA did not seek policy advice 
or recommendations from the panel but simply information to be used in 
developing the PPE payment rule.
---------------------------------------------------------------------------

    \13\ The responses are summarized in the main text of the 
Patterns of PPE Provision Final Report, and the complete set of 
responses from each expert is provided in Appendix A of the Report 
(Ex. 1).
---------------------------------------------------------------------------

    As indicated by the Court of Appeals for the DC Circuit, it is also 
important to consider the formality and structure of the panel when 
determining whether or not the panel is a FACA advisory committee 
(Ass'n of Am. Physicians and Surgeons, Inc., 997 F.2d at 913-14). Here, 
the members of the expert panel did not meet. To supplement the 
individual responses of the panel members, six of the eight members 
participated in one conference call with OSHA officials to discuss 
issues related to PPE usage, including the different estimates 
regarding levels of PPE provision by employers. No other meetings were 
held. Had OSHA sought advice or recommendations from the group as a 
whole, the Agency would have arranged for longer and more frequent 
discussions among panel members, enabling the panel to reach agreement 
and provide consensus-based advice. OSHA, instead, was seeking data and 
general information about PPE from the representatives of the different 
sectors, which the Agency weighed in drafting this rule.
    The same commenters raised an additional issue related to the 
transparency of the rulemaking process. The commenters stated that OSHA 
relied on information and estimates provided by one member of the 
expert panel who was not identified by name in the report on patterns 
of PPE usage (Ex. 12: 189). OSHA disagrees that it did not provide the 
public sufficient information to comment on the benefits estimates in 
the proposed rule.
    Pursuant to the request in the questionnaire submitted to the 
panelists, Dr. Jeffrey Stull provided estimates of the incidence of 
non-use or misuse of PPE under different payment schemes (See Patterns 
of PPE Provision Final Report). He estimated a 40 percent incidence 
rate of non-use or misuse of employee-purchased PPE and a 15 to 20 
percent incidence rate of non-use or misuse of employer-purchased PPE. 
As explained in the proposal, OSHA adopted these estimates because they 
were consistent with information provided by the other panelists as 
well as the Agency's own enforcement experience.
    During the public hearing held on August 10, 1999, OSHA's opening 
statement set forth the Agency's belief that the PPE Payment rule would 
prevent thousands of injuries each year that result from misuse or 
nonuse of PPE when employees must purchase the PPE for themselves (Tr. 
15). Additionally, in the statement, OSHA specifically requested 
comments on the safety advantages associated with employer-purchased 
PPE.

    We would also very much like your comments on the results of the 
PPE survey, which are in the Docket, and we would like to know 
whether you have evidence, either in qualitative or quantitative 
terms, showing that employee-owned PPE is less protective than 
employer-provided PPE. Are there, for example, particular instances 
where employees have jeopardized their safety and health to avoid 
the financial loss they would experience if they had to pay for 
their own PPE? Is there evidence to suggest that employees take 
better care of PPE that they themselves must purchase? 
Alternatively, is there evidence that employees neglect to take care 
of PPE paid for by their employers? (Tr. 23).

Following this statement, OSHA took questions from the public. During 
this questioning period, none of the attendees posed questions or 
expressed concerns about OSHA's estimates of the safety advantages of 
employer-purchased PPE.
    During this same hearing, Dr. Stull testified as OSHA's designated 
PPE expert. In accordance with the hearing procedures published in the 
Federal Register, Rescheduling of Informal Public Hearing, 64 FR 27941 
(May 24, 1999), on July 15, 1999, OSHA provided notice to the Docket 
Office of Dr. Stull's intent to appear as OSHA's expert witness along 
with his curriculum vitae (Ex. 13: 16). On July 23, 1999, the full text 
of Dr. Stull's testimony was submitted to the Docket Office for review 
by the public (Ex. 13: 16-1).
    After his prepared testimony, Dr. Stull also took questions. A 
representative of the AFL-CIO asked for specific data regarding the 
frequency of use of PPE off of the jobsite (Tr. 73). Subsequently, an 
attorney from the Office of the Solicitor asked Dr. Stull about the 
safety advantage of requiring the employer to pay for PPE (Tr. 80). 
Even though Dr. Stull was asked specifically to discuss data on PPE use 
and then to address the benefits of employer-purchased PPE, none of the 
attendees--including those commenters above that questioned OSHA's 
benefits estimate--took the opportunity to ask the witness about data 
related to the safety benefit of employer-purchased PPE.
    In short, OSHA provided ample opportunity for the public to pose 
questions to the Agency's representatives as well as the Agency's 
designated PPE expert about the specific figures used in its benefits 
analysis, but none did so. Furthermore, no commenters offered 
alternative point estimates of the safety benefits of employer payment 
for PPE. The rulemaking process and OSHA's analyses were transparent. 
The public was not deprived of the opportunity to comment or question 
the Agency's benefits analysis.
2. Data Quality
    The Society for Human Resource Management (SHRM) expressed concern 
about the quality of the data that OSHA relied on in performing the 
benefits estimate in the proposal, stating ``SHRM questions whether the 
proposed * * * rule will significantly advance workplace safety since 
it is not shown to be based upon sound scientific studies nor is it 
established that the data was gathered pursuant to the Data Quality Act 
requirements'' (46: 43).
    The Department of Labor's ``Guidelines for Ensuring and Maximizing 
the Quality, Objectivity, Utility, and Integrity of Information 
Disseminated by the Department of Labor'' (Guidelines) (Available at 
DOL.gov at http://www.dol.gov/cio/programs/InfoGuidelines/InfoQualityGuidelines.pdf) establish Departmental guidance for ensuring 
that the quality of information disseminated by the Department meets 
the standards of quality, including objectivity, utility, and 
integrity. The Guidelines also contain specific principles for agencies 
to follow when analyzing safety and health risks. While much of the 
information used in the final rule was developed prior to publication 
of the guidelines, the information was gathered using techniques that 
meet the guidelines.
    Contrary to the suggestion of SHRM, the information presented to 
support the safety benefits of the final rule fully complies with the 
Guidelines. The benefits analysis in the final rule is based on the 
best available evidence. In addition to the expert panel described 
above, in 1999, OSHA engaged Eastern Research Group (ERG) to perform a 
large-scale telephone survey to collect industry-specific data 
describing PPE usage patterns and the extent to which employers pay for 
OSHA-required PPE. The results were published in the PPE Cost Survey 
report on June 23, 1999 and made available in the Docket Office (Ex.

[[Page 64374]]

14). OSHA subsequently published a Federal Register notice asking the 
public to comment on the survey results (64 FR 33810-33813, June 24, 
1999).
    ERG obtained complete responses from 3,722 respondents. Three basic 
types of information were collected about eight categories of PPE: (1) 
If the PPE is used at the respondent's establishment; (2) how many 
employees use the PPE; and (3) who pays for the PPE (Ex. 12: 14). The 
survey data provide industry-specific estimates of the numbers of 
employees and establishments currently using each PPE type. The data 
also provide industry-specific estimates of the numbers of employees 
and establishments at which employers pay the full cost of the 
equipment, the numbers at which employees pay for the equipment, and 
the numbers at which employers and employees share the costs of PPE.
    OSHA relied heavily on this data, as well as the extensive record 
that was compiled during the rulemaking and updated Bureau of Labor 
Statistics data, to develop the final rule and to determine the costs, 
benefits, and economic impacts of the rule. This is precisely the type 
of information the Guidelines require agencies to utilize when 
evaluating risks. The Guidelines specifically require agencies to use 
``[d]ata collected by accepted methods or best available methods'' when 
analyzing safety and health risks. Accepted methods include the 
``[t]estimony of experts'' and ``relevant analyses'' of pertinent 
information or data (Guidelines, p. 16). OSHA is confident that it has 
relied on the best available information in developing this rule and 
that the information presented complies with the Guidelines.

B. Turning in Old Equipment

    A few commenters raised the issue of ``exchange systems,'' where an 
employee is required to turn in PPE that is no longer functional when 
the employer provides replacement PPE (See, e.g., Exs. 12: 65, 167, 
183). The SCA commented that:

    Many shipyards require employees to turn in their non-
serviceable PPE upon receiving new equipment. Employer review of 
used PPE has proven to reduce injury at shipyards by providing 
employers insight into how equipment is used by examining what parts 
of the equipment are worn. This practice allows employers to 
identify poor technique and institute engineering controls that can 
reduce the incidence of injury. SCA recommends that the rule protect 
the employer's right to continue this practice (Ex. 12: 65).

    OSHA does not prohibit SCA's practice and OSHA does not object to 
employers requiring employees to turn in employer-owned, worn-out PPE 
when issuing replacement PPE. Analyzing the PPE to look for wear 
patterns or other characteristics that can help implement improved 
engineering controls or obtain more suitable PPE would be a useful 
method for improving an employer's safety and health program. However, 
the Agency notes that these types of exchange programs need to be set 
up so that employees are not denied needed replacement PPE. For 
example, if an employee's PPE is damaged due to events occurring at 
work, the employer cannot deny replacement by establishing a work rule 
that turned-in equipment must be in serviceable condition. Such a 
policy would subvert the final employer payment rule and the underlying 
PPE requirements.

C. Guidance To Assist Employers With PPE Issues

    The SGIA raised the issue of employers who have questions about 
OSHA's PPE requirements, suggesting that:

    OSHA needs to provide guidance and other training aids to assist 
employers in the proper selection, care and use of PPE. The vast 
majority of printers are very small businesses. In fact 80% having 
less than 20 employees, and do not possess the resources to 
undertake a proper evaluation themselves or hire an outside 
consultant to do it for them. OSHA needs to provide basic and useful 
information on this subject (Ex. 12: 116).

    OSHA agrees that training aids are needed to help employers, and 
most especially smaller employers, with a variety of PPE issues, and 
the Agency has various resources and materials available to help 
provide PPE information. OSHA has two Internet topics pages devoted to 
PPE, one for construction and another for general industry employers 
(look for ``personal protective equipment'' under the alphabetic index 
at http://www.osha.gov). These include several resources, including the 
OSHA PPE standards, electronic aids called e-tools that will help 
employers with selection and other PPE issues, and links to other PPE 
resources on the Internet. OSHA also provides Publication 3151--
Personal Protective Equipment to employers and employees free of 
charge. The publication discusses PPE hazard assessment and selection, 
employee training, and various types of PPE that may be needed to 
protect employees. Additionally, PPE is mentioned in many of OSHA's 
hazard specific publications, such as those dealing with bloodborne 
pathogens and chemical hazards.
    While OSHA has provided the public with a variety of resources to 
help them with PPE selection, training, and use, the Agency will 
continue to look for ways to assist employers and employees with PPE 
issues. The Agency will continue to provide information on the 
Internet, and welcomes any specific suggestions on products or training 
aids that would assist employers and employees with PPE issues. 
However, the ultimate responsibility for ensuring the PPE is adequate 
rests with the employer.

D. Transmission of Disease Through Shared Equipment

    The Framing Contractors Association expressed a concern about PPE 
that is shared among various employees and the potential for 
contaminants or infectious disease to be passed from one employee to 
the next. Their specific comment was ``We are also concerned that if 
equipment is shared or reused by another person, there could be a 
potential for the transfer of some diseases or possible contagious 
infections caused by the poor hygienic conditions of sweat bands in the 
hard hats or contaminates on eye glasses'' (Ex. 12: 207).
    This is a long standing concern that occurs when PPE is used by 
more than one employee. That is why OSHA's standards require PPE to be 
kept in a sanitary condition. The standards do not prohibit the use of 
shared PPE; therefore it is critical that employers ensure that PPE is 
sanitized before it is provided to another employee.

E. Taking Home Contaminants on Clothing

    The Building and Construction Trades Department noted that an 
employee's family can be exposed to dangerous materials when an 
employee takes them home on his or her PPE, noting:

    [b]ecause employers, employees, and OSHA do not always recognize 
the inherent hazards present in construction work, construction 
workers routinely expose their families unknowingly to contaminants 
from the job. Sometimes, these contaminants cause adverse health 
effects to their families * * * If employers provide and control the 
use of PPE effectively, these hazards could be significantly reduced 
or eliminated (Ex. 12: 218).

    OSHA agrees that employees and their families can be exposed to 
hazardous substances inadvertently removed from the worksite on an 
employee's PPE and many of OSHA's substance specific standards require 
employers to prevent such contamination by controlling workplace 
clothing, providing showers, and

[[Page 64375]]

separate dressing areas. However, there is not a comprehensive 
requirement for employers to control all hazardous substances in this 
manner. The Agency recommends that employers take every effort to limit 
the spread of chemical contaminants through these and other mechanisms.

XIII. Other Alternatives Considered During the Rulemaking Process

    During the development of the final standard, OSHA considered four 
alternatives: (1) An exception for PPE that is personal in nature and 
customarily worn off the job; (2) an exception for PPE used as a tool 
of the trade; (3) requiring payment for all PPE without exception; and 
(4) exempting high-turnover industries. For the reasons discussed 
below, OSHA rejected these alternative approaches.

A. Requiring Employers To Pay for All PPE Except PPE the Employer 
Demonstrated Was Personal in Nature and Customarily Worn Off the Job

    The proposed rule specifically requested comment on alternative 
regulatory text that would have required employers to pay for all PPE 
except equipment that the employer demonstrated was personal in nature 
and customarily used off the job (64 FR 15416). A few commenters 
reacted favorably to this performance language alternative\14\. The 
National Rural Electric Cooperative Association supported the 
alternative approach, stating that ``[c]learly, any attempt to list all 
PPE available for exception on a personalized, off-the-job rationale is 
doomed to failure * * * [A]ny clarification of the general rule should 
be by way of restating clearly the general rule and the traditional 
exception available for all PPE that is personal and able to be used 
off the job'' (Ex. 12: 221). Another commenter echoed this opinion, 
stating that ``OSHA may be starting down a slippery slope by excluding 
certain items considered personal in nature and not others. There are 
numerous types of PPE including gloves, clothing, hearing protection 
devices, footwear other than safety-toe footwear, which can be 
considered personal in nature'' (Ex. 12: 134). Finally, the ASSE stated 
that ``[i]f the Agency becomes involved in trying to prescribe 
individual rules for PPE such as [for] welders, lumber industry 
workers, etc. * * * [we] foresee the agency eventually being in the 
quagmire of PPE deviations, exceptions, and directives'' (Ex. 12: 110).
---------------------------------------------------------------------------

    \14\ With a performance-oriented approach, the Agency identifies 
a goal to be achieved but does not specify the means by which it 
must be achieved, in order to provide employers flexibility. See, 
e.g., Secretary of Labor v. Pike Elec., No. O.S.H.R.C. 06-0166, 2007 
WL 962965, at *10 (O.S.H.R.C. Feb. 5, 2007) (``The Secretary 
promulgated Sec.  1910.269(n)(3) as a performance standard, in which 
she specifies the hazard to be protected against while giving the 
employer some leeway in achieving the desired result.'')
---------------------------------------------------------------------------

    A representative of the UAW testified in opposition to the 
performance oriented approach:

    The notion that certain PPE items are personal in nature and 
customarily used off the job is vague, overbroad, ambiguous, hard to 
define, and will generate major difficulties in compliance and 
enforcement. Molded earplugs, for example, are more personal than 
shoes and may also be worn to the employee's benefit off the job. * 
* * The UAW believes the alternative regulatory text on exceptions 
is worse than the proposed text. * * * However, if the agency 
insists on exceptions in the final rule, we would prefer the 
proposed language which would very specifically identify the 
excepted PPE rather than the alternative text (Tr. 242-244).

This view was shared by others as well (See, e.g., Exs. 12: 230, 24A, 
24B; Tr. 281-282, Tr. 344). In its written comments, ISEA stated that 
the proposed alternative would be ``difficult to define and 
interpret,'' and that exempting PPE that is personal in nature is 
``oxymoronic'' given that PPE must fit the individual employee in order 
to be effective against hazards (Ex. 12: 230).
    OSHA agrees with these commenters that the proposed alternative 
performance language is too vague. It provides insufficient guidance to 
employers and employees as to what PPE the employer should pay for in a 
particular circumstance. Furthermore, it would be difficult for 
compliance officers attempting to enforce the rule, since they would 
have no clear basis for evaluating the employer's determination that 
the exception was met in a given case. OSHA is concerned that the 
vagueness of the alternative text would result in less protection for 
employees. Without clearly specifying the parties'' responsibilities, 
safety precautions may not be taken.
    In contrast, the final rule sets forth clearly the PPE for which 
the employer is not required to pay. These exceptions are supported by 
the rulemaking record. Employers and employees will clearly understand 
the PPE that must be paid for by employers and the PPE for which 
employers and employees may negotiate payment. As discussed above, OSHA 
believes this clarity will result in even greater benefits for 
employers and employees.

B. Adding an Exception for PPE Meeting Criteria Reflecting Its Use as a 
Tool of the Trade

    OSHA also considered adding a specific exemption from the employer 
payment rule for PPE considered ``tools of the trade,'' where the 
employer could demonstrate that (1) the PPE could only be used by one 
employee for reasons of customized fit or hygiene, and (2) it is 
customary in the industry for employees to select and pay for the PPE. 
In response to OSHA's 1999 proposal, several commenters argued that 
employers should not be required to pay for PPE items that employees 
now customarily purchase themselves and take with them from job to job.
    After reviewing these comments, OSHA determined that more 
information was needed on the nature and extent of such customary 
practices to fully evaluate the impact of a final rule on various 
industries. OSHA reopened the rulemaking record on July 8, 2004 and 
solicited comment on whether and how a final rule should address 
situations where PPE has been customarily provided by employees (69 FR 
41221). The Agency received nearly 100 written comments in response to 
the notice to reopen the record. OSHA received a variety of opinions on 
tools of the trade, however most stakeholders considered the idea of 
exempting certain tools of the trade from an employer payment 
requirement as problematic.
    Commenters representing labor interests generally opposed providing 
an exception from the employer payment requirement for tools of the 
trade. To the extent that any particular tool of the trade is PPE, 
these commenters stated that employers should be responsible for 
providing and paying for such equipment. They also cautioned that any 
effort to classify PPE as tools of the trade was inappropriate and 
would lead to confusion (Exs. 45: 1, 18, 21, 25, 32, 53). James August 
of AFSCME wrote:

    Further discussion on the issue of tools of the trade will cloud 
rather than clarify the issues of what constitutes PPE and 
employers' duty to provide safe working conditions. The term tools 
of the trade is inappropriate for OSHA to use in the context of a 
rule requiring employers to pay for most PPE. Tools of the trade 
means equipment that is used to perform a specific job or task. 
Personal protective equipment, by contrast, is not used to 
accomplish a task, but rather to protect the worker from the hazards 
that are associated with the job (Ex. 45: 1).

ISEA expressed a similar view, stating that ``[a] tool enables a worker 
to perform a task. PPE protects the worker by using the tool'' (Ex. 46: 
31).

[[Page 64376]]

    Some employer representatives commented with similar views. These 
representatives stated that what is considered a tool of the trade 
varies greatly by industry and even within an industry. Therefore, OSHA 
would have a difficult time specifically identifying, in a single rule, 
all of the different types of PPE that fall into this category (Exs. 
45: 3, 17; 46: 1, 3, 9, 13). Many employer representatives, however, 
believed that some PPE should be excluded from an employer payment 
requirement if the PPE meets certain criteria, including some criteria 
that are typically used to describe tools of the trade. For example, 
ORC stated:

    ORC views the criteria that ``the PPE is expected to be used by 
only one employee for reasons of hygiene or personal fit'' as 
reasonable. ORC also views the concept of working for multiple 
employers as reasonable. Equipment that must be fitted to an 
individual worker or which becomes, through use, unsuitable for use 
by another worker for hygienic reasons, coupled with a worker's 
employment by, and frequent movement between, several different 
employers, are criteria which argue against the general requirement 
that each employer has an absolute responsibility to provide and pay 
for all PPE (Ex. 46: 47).

ORC recommended that OSHA include a general exemption for PPE meeting 
these criteria, but that OSHA not include an exemption based on 
customary industry practice, as that would compromise the clarity of 
the rule.
    Two other representatives described common practices in their 
industries with respect to payment for PPE. The International 
Association of Drilling Contractors stated that employees in the oil 
and gas well industry provide their own hard hats, safety boots, 
gloves, coveralls (work clothes), general-use work gloves, winter 
protection for cold weather and rain gear, including rubber boots, for 
wet weather (Ex. 46: 30). A written submission from the Tree Care 
Industry Association stated that ``[i]t is a longstanding practice for 
the employee to show up for work in boots and other work attire that he 
or she has paid for'' (Ex. 46: 44). The commenters also explained that 
employees frequently move to perform work for multiple employers.
    Two representatives of electric utilities stated that it was common 
practice for employers to require employees to provide climbing 
equipment including lineman's belts, leather work gloves, gaffs, hooks, 
and boots (Exs. 45: 37, 42). Several other general industry employers 
stated that it was customary for employees to provide certain types of 
PPE and supported an exemption from employer payment for those items 
(Exs. 45: 28, 30, 52; 46: 5, 12). A submission from a large 
telecommunications company argued that while ``personal'' items such as 
gloves, work clothes, and footwear should be exempt from a payment 
requirement, all other PPE, including climbing equipment, should be 
paid for by the employer (Ex. 45: 13).
    OSHA also received many comments from representatives of the 
construction industry who supported an exemption for PPE considered to 
be tools of the trade. However, these comments indicate that the kinds 
of PPE regarded as tools of the trade vary considerably among different 
segments of the construction industry. One contractor who builds 
concrete shells for high-rise structures stated that employees hired as 
carpenters are required to have their own 4-point harness system, 2-
legged lanyards, and positioning chains or devices (Ex. 45: 5). A 
representative from the NAHB wrote:

    There are several articles of PPE that are considered ``tools of 
the trade'' in residential construction. These include: hard hats, 
safety glasses, work boots/shoes, and general duty gloves. There are 
several reasons why these articles of PPE are thought to be tools of 
the trade and should be excluded. First, it is customary for workers 
to bring these items to the job-they are normally supplied (and paid 
for) by workers and are carried with them from job to job or from 
employer to employer. Workers are typically required to supply their 
own tools and equipment for the job they are performing and PPE is 
considered just another tool in their toolbox (Ex. 45: 26).

According to a representative of the Independent Electrical 
Contractors, Inc., practices vary among establishments engaged in 
electrical construction, with some employers paying for PPE while 
others require employees to provide hard hats, safety glasses, gloves, 
boots, and appropriate clothing (Ex. 45: 36).
    Several representatives of the maritime industry supported an 
exemption for welders'' PPE, indicating that it is customary in the 
industry for welders to provide their own PPE. A representative from 
the SCA stated:

    SCA believes that safety equipment considered to be tools of the 
trade should be excluded from the employer requirement for payment. 
SCA members consider Personal Protective Equipment (PPE) and tools 
of the trade to be two separate categories of equipment. PPE is 
safety equipment provided by the employer that generally can be 
sanitized and reissued. A tool of the trade is viewed as a piece of 
safety equipment that is highly personal in nature and generally can 
not be used by another employee * * * Tools of the trade for welding 
operations, such as face shields/goggles, fire resistant shirts/
jackets, sleeves and leather gloves have predominantly been provided 
by the employee because of the equipment's personal nature. The 
industry considers these to be tools of the trade because it is 
neither feasible for a different employee to wear the welders'' 
gloves and leathers each day for hygienic reasons, nor is it 
feasible that upon resigning from the position that an employee will 
leave the leathers behind to be worn by another individual. (Ex. 46: 
32).

A submission from Northrop Grumman Ship Systems (NGSS) reflected a 
similar view. With respect to welding leathers, welding jackets, 
welding sleeves and gloves and welding shields, NGSS stated:

    [t]his equipment presents classic examples of ``tools of the 
trade,'' which employees traditionally bring with them to the job 
and take with them when they leave it. There is good reason for this 
as these items absorb perspiration and come into direct contact with 
the employee's skin. As such, this equipment would be unsuitable for 
reissue to another employee.
    Similarly, other items such as hardhats and safety glasses are 
individual and personal in nature since they must be adjusted to 
conform to the employee's physical dimensions. They, too, must be 
sanitized and repaired prior to reissue. With approximately 20,000 
employees, NGSS would incur exorbitant expenses. Moreover, the 
traditionally high turnover rate intrinsic to shipbuilding 
aggravates this problem (Ex. 46-39).

    OSHA believes that a PPE payment rule exempting equipment meeting 
the criteria described above would fail to clearly indicate to 
employers and employees when PPE had to be paid for by employers, and 
would likely result in the Agency having to render numerous 
interpretations of the rule as it applied to specific situations. For 
example, while there was some agreement in the record that certain 
climbing gear and welding equipment were considered tools of the trade 
in some industries, the record reflects considerable disagreement as to 
the other types of PPE that are considered tools of the trade.
    The record also shows that PPE considered tools of the trade in one 
industry may not be considered tools of the trade in another industry. 
Therefore, while welding equipment may be considered tools of the trade 
in parts of the maritime industry, they may not be considered tools of 
the trade in general industry (e.g., manufacturing plants). There is 
also evidence in the record that even within the same industry, there 
is disagreement as to what is considered a tool of the trade. Employers 
would have great difficulty determining whether a particular type of 
PPE is considered a tool of the trade and whether they would be 
responsible for paying for it.

[[Page 64377]]

It would also be difficult for OSHA to verify the types of PPE that are 
customarily provided and paid for by employees in a given industry. 
These differences in the way that certain PPE is treated in specific 
industries makes this alternative impractical. Accordingly, OSHA 
believes that this alternative is too vague and would create confusion 
among employers and employees.

C. Requiring Payment for All PPE Without Exception

    OSHA considered requiring employers to pay for all PPE, without any 
exceptions. Many commenters supported this alternative (See, e.g., Exs. 
12: 100, 19, 22A, 25, 26A, 37; Tr. 173-174, Tr. 241, Tr. 320, Tr. 366, 
Tr. 463-464). They argued that PPE is part of the hierarchy of 
controls. Therefore, just as OSHA would not ask an employee to pay for 
engineering or administrative controls, the Agency should not expect 
employees to pay for any PPE. For example, the AFSCME strongly objected 
to any exceptions, stating:

    According to OSHA's own reasoning, there is no rational basis 
for distinguishing the use of PPE from other types of controls, and 
the responsibility of paying for the protection should, in each 
case, rest with the employer. Safety-toe protective footwear and 
safety eyewear are clearly forms of PPE. Therefore, employers should 
be required to pay for safety-toe footwear and safety eyewear. 
Employers should be required to pay for such protective foot and 
eyewear regardless of whether such footwear is worn off the job-site 
(Ex. 12: 100).

During the public hearing, Jackie Nowell, Director of the Occupational 
Safety and Health Department of the UFCW testified:

    OSHA standards are not ambiguous about who pays for engineering 
or administrative controls, and we don't believe they are ambiguous 
about the payment for PPE. The OSH Act requires employers to provide 
a safe and healthy workplace for American workers.
    Again, employers are mandated to control hazards through a 
hierarchy of controls, preferably engineering and administrative. 
And when those fail to abate or reduce the hazard, then the employer 
is allowed to utilize PPE, but also to pay for it (Tr. 173-174).

    In their post-hearing comments, the United Automobile, Aerospace & 
Agricultural Implement Workers of America (UAW) also urged OSHA to 
eliminate the proposed exemptions. They argued:

    The UAW believes that the employer's responsibility to pay for 
necessary and required PPE is consistent with both OSHA law, logic 
and good safety practice * * * [M]any states already interpret their 
standards to require employers to pay for PPE * * * Treating PPE 
differently from other controls is illogical and violates the 
hierarchy of controls * * * OSHA's proposal to continue the 
exemption for shoes and glasses is a lost opportunity to correct a 
previous error, and restore a logical scheme for allocating costs of 
protection against hazards (Ex. 23).

A representative of the Teamsters stated, ``[w]e believe that all PPE 
required to protect employee health and safety should be paid for by 
the employer regardless of whether they are personal in nature and/or 
customarily used off the job'' (Tr. 342).
    OSHA rejected this alternative for three main reasons. First, as 
explained in the Legal Authorities section, OSHA does not agree that 
the OSH Act can be read to require employers to pay for all PPE without 
exception. The Agency does not believe that Congress intended for 
employers to pay for the types of PPE exempted in the standard, such as 
everyday work clothing and weather-related equipment. Second, requiring 
employer payment for all PPE without exception would not be a cost 
effective means of protecting employees. The cost of requiring 
employers to pay for safety shoes, certain everyday clothing, weather-
related protective gear, sunscreen, etc. would be quite high and OSHA 
believes unnecessary given existing practices in most industries. The 
Agency estimates that requiring employers to pay for protective safety-
toe footwear would have added $220 million to the cost of the final 
rule. Finally, the PPE exempted in the final rule is the type of PPE 
OSHA has historically exempted from employer payment. OSHA sees no 
reason based on the rulemaking record here, to deviate from its 
longstanding position that certain PPE should be excluded from employer 
payment.

D. Exempting High-Turnover Industries From an Employer Payment 
Requirement

    Finally, OSHA considered exempting high-turnover industries from 
the PPE payment requirement. The record shows that one common reason 
that employers do not pay for PPE is high turnover, such as in 
situations involving day labor, or job- or situation-contingent hiring. 
OSHA received many comments expressing concern about the costs to 
employers in high-turnover industries of the payment requirement.
    According to the National Maritime Safety Association (NMSA) and 
the Pacific Maritime Association (PMA), an employer-payment requirement 
is impractical in a hiring hall industry because each employer's work 
force changes from day to day depending upon its manpower needs and the 
seniority, skills and personal preferences of available employees (Exs. 
12-172, 12-173). The NMSA stated further that it was not possible to 
devise a system in which employer-purchased PPE could be distributed to 
employees at the beginning of a work-shift, collected at the end of a 
work-shift, and sanitized and redistributed to different employees at 
the beginning of the next shift (Ex. 12: 172). The NMSA asserted that 
employers would have no choice but to issue new PPE to employees every 
day at substantial expense and with no additional safety benefit (Id.).
    The United States Maritime Alliance Limited (USMX) argued that a 
generic PPE payment requirement would be difficult for the maritime 
industry given many employees work for multiple employers:

    [I]n the marine cargo handling industry, labor pools are often 
utilized to assign labor to a certain workplace. It is not uncommon 
for a single employee to work at a different employer's facility 
from day to day or even shift to shift. As such, any standard that 
requires action, such as payment for PPE on an ``employer'' creates 
significant confusion in an industry where a single employee may 
have several employers. That is one reason why local port management 
associations are often involved in providing such equipment (Ex. 45: 
40).

    The NAHB made a similar argument on behalf of its members. The NAHB 
stated that some firms process 15 to 50 employees a week and that many 
of them quit or are terminated in a matter of hours. Providing new PPE 
to each new employee at a cost of $15 per person would be burdensome, 
the NAHB argued, and would not lead to greater use of the equipment 
(Ex. 12: 68). A representative of the oil and gas drilling industry 
reported that the industry traditionally has a high turnover rate, with 
one firm reporting an average turnover of almost 50 percent (Ex. 12: 
9). A firm in this industry maintained that the cost of providing three 
to four pairs of cotton gloves per week to its 4,300 well-servicing 
employees would cost $804,960 annually and would have a significant 
economic impact (Ex. 12: 19).
    OSHA analyzed this alternative and determined that it was not 
appropriate to deny the benefits of the final rule to certain employees 
simply because they worked in industries with ``high turnover.'' The 
OSH Act does not contemplate exempting employers from their obligations 
to protect employees for that reason alone. This is particularly true 
when there is no evidence that the final rule will create

[[Page 64378]]

feasibility problems in any of the industries affected.
    Furthermore, such an exemption would be impractical. The rulemaking 
record did not provide enough information for OSHA to specifically 
identify high turnover industries for purposes of the exemption. In 
particular, turnover depends greatly on size of employer, occupation, 
and geographic area. Thus, for some large employers in a particular 
industry, turnover may be low; however, for smaller employers in the 
same industry there may be extremely high turnover. Furthermore, in the 
same industry, there might be significant differences in turnover 
depending upon particular jobs. So, welders in the construction 
industry may experience great turnover, but crane operators may not. 
Finally, in some areas of the country, there is high turnover in a 
particular industry, but only moderate turnover in the same industry in 
another area of the country. These real differences in turnover rates 
make it difficult for OSHA to specifically exempt certain industries 
from an employer payment requirement.
    OSHA was also unable to identify a rate that it could consider 
``high turnover'' for purposes of the exemption. Turnover rates vary 
greatly; they can be as low as 5-10 percent or as high as 200 percent a 
year. The Agency was not able to identify an appropriate cut-off point 
for high turnover that could be used as a basis for exempting 
industries from an employer payment requirement. Furthermore, turnover 
rates fluctuate yearly. Thus, in one year an industry might have a 50 
percent turnover rate, but a 25 percent rate in the following year. The 
Agency was unable to devise alternative language that could account for 
these fluctuations while providing employers with sufficient notice of 
their compliance obligations. For all of these reasons, OSHA rejected 
this alternative.

XIV. Legal Authority

A. Introduction

    This rule is limited to addressing who must pay for the PPE that is 
already required by existing PPE standards. The rule does not require 
any new type of PPE to be purchased. Nor does the rule impose any new 
requirements for PPE use.
    The final rule is justified on two different bases. First, the rule 
is interpretive in that it clarifies and implements a pre-existing 
employer payment requirement implicit in the statutory scheme and the 
language of OSHA's PPE standards. Part B of this section discusses 
these implicit statutory and regulatory payment schemes. Second, the 
rule is an ancillary provision further reducing the risks addressed by 
the existing PPE standards. To be justified as an ancillary provision, 
the rule need only be reasonably related to the PPE standards' remedial 
purpose. Part C of this section discusses the final rule's health and 
safety benefits.

B. The Final Rule Codifies an Employer Payment Requirement Implicit in 
the OSH Act and the Wording of the Existing PPE Standards

1. An Employer Payment Requirement Is Derived From the Statutory 
Framework
    In the Agency's view, the final rule does no more than clarify a 
requirement legally implicit under the Act. The Act makes employers 
solely responsible for the means necessary to achieve safe and 
healthful workplaces. This includes financial responsibility. Employers 
are therefore responsible for providing at no cost to their employees 
the personal protective equipment that is required because of workplace 
hazards.
    The language of the Act and its framework are indicia of this 
requirement. At section 2(b) (29 U.S.C. 651(b)), Congress declared its 
purpose and policy to ``[a]ssure so far as possible every working man 
and woman in the Nation safe and healthful working conditions and to 
preserve our human resources.'' To that end, Congress authorized the 
Agency to issue safety and health standards and required each employer 
to comply with the standards (29 U.S.C. 654(a)(2)).
    The Act defines an occupational safety and health standard as one 
which ``[r]equires * * * 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)). Congress gave to OSHA broad discretion to set standards 
to prevent occupational injury and illness and to charge to employers 
the cost of reasonably necessary requirements. United Steelworkers v. 
Marshall, 647 F.2d 1189, 1230-31 (DC Cir. 1980), cert. denied, 453 U.S. 
913(1981) (Lead).
    In addition to the statute's requirement that employers comply with 
standards, sections 9, 10 and 17 of the Act (29 U.S.C. 658, 659, 666) 
set out a detailed scheme of enforcement solely against employers. 
Atlantic and Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 553 (3d. 
Cir. 1976). Sections 9(a) and 10(a) (29 U.S.C. 658(a), 659(a)) provide 
for the issuance of citations and notifications of proposed penalties 
only to employers. Section 10(a) (29 U.S.C. 659(a)) refers only to an 
employer's opportunity to contest a citation and notification of a 
proposed penalty. Section 17 (29 U.S.C. 666) provides for the 
assessment of civil monetary penalties only against employers. OSHA's 
enforcement authority against employers--not employees--underscores 
Congress's intent to hold employers responsible for creating safe and 
healthful working conditions.
    This statutory scheme is further supported by the OSH Act's 
variance provisions, which provide that employers--but not employees--
may apply to OSHA for a temporary or permanent variance from compliance 
with OSHA standards. Temporary variances allow employers additional 
time to come into compliance with a standard when the employer 
demonstrates that it cannot do so by the effective date due to the 
unavailability of professional or technical personnel or materials or 
because of necessary construction or alteration of facilities (29 
U.S.C. 655(b)(6)). Permanent variances provide employers with 
alternative means to protect their employees in lieu of specific OSHA 
standards, provided these alternative measures are as protective as the 
measures set forth in the relevant standards (29 U.S.C. 655(d)). These 
provisions recognize that employers are responsible for complying with, 
and paying for compliance with, OSHA standards and provide them 
flexibility in achieving this compliance.
    The Supreme Court confirmed that Congress intended employers to pay 
for compliance with safety and health standards. In reviewing OSHA's 
cotton dust standard, the 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 (American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 
490, 519-522, 101 S. Ct. 2478, 2495-96, 69 L.Ed.2d 185 (1981) (Cotton 
Dust). See also Forging Industry Ass'n. v. Secretary of Labor, 773 F.2d 
1436, 1451 (4th Cir. 1985) (Noise); Lead 647 F.2d at 1230-31).
    Several statements by members of Congress demonstrate that 
employers would be expected to bear the costs of compliance with OSHA 
standards. Senator Yarborough stated that ``[w]e know the costs [of 
complying with the Act] would be put into consumer goods but that is 
the price we should pay for the 80 million workers in America.'' (S. 
Rep. No. 91-1282, 91st Cong., 2d Sess. (1970); H.R. Rep. No. 91-1291, 
91st

[[Page 64379]]

Cong., 2d Sess. (1970), reprinted in Senate Committee on Labor and 
Public Welfare, Legislative History of the Occupational Safety and 
Health Act of 1970, (Committee Print 1971) at 444. Senator Cranston 
stated:

    (T)he vitality of the Nation's economy will be enhanced by the 
greater productivity realized through saved lives and useful years 
of labor. When one man is injured or disabled by an industrial 
accident or disease, it is he and his family who suffer the most 
immediate and personal loss. However, that tragic loss also affects 
each of us. As a result of occupational accidents and disease, over 
$1.5 billion in wages is lost each year (1970 dollars), and the 
annual loss to the gross national product is estimated to be over $8 
billion. Vast resources that could be available for productive use 
are siphoned off to pay workmen's compensation and medical expenses 
* * *. Only through a comprehensive approach can we hope to effect a 
significant reduction in these job death and casualty figures (Id. 
at 518-19).

    Senator Eagleton stated it even more clearly: ``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'' (116 Cong. Rec., at 41764, Leg. 
Hist. 1150-1151).
    Furthermore, Congress considered uniform enforcement against 
employers crucial because it would reduce or eliminate the disadvantage 
that a conscientious employer might experience where inter-industry or 
intra-industry competition is present. ``[M]any employers--particularly 
smaller ones--simply cannot make the necessary investment in health and 
safety, and survive competitively, unless all are compelled to do so'' 
(Leg. Hist. at 144, 854, 1188, 1201).
    Nothing in the legislative history suggests that Congress intended 
that compliance costs should be borne by employees. 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'' (Leg. Hist. at 149).
    Therefore, as seen in the statutory text and legislative history, 
Congress conclusively determined that OSHA regulation is necessary to 
protect employees from occupational hazards and that employers should 
be required to reduce or eliminate significant workplace health and 
safety threats. This includes a concomitant financial responsibility to 
pay for the measures necessary to that end. Congress plainly viewed the 
costs of compliance with the Act as a type of ordinary business expense 
that employers would be expected to bear in order to reduce employee 
exposure to safety and health hazards (Cotton Dust, 452 U.S. 490, 519-
521 (1980)).
    PPE is a means to ensure the safety and health of employees, just 
as engineering, administrative, and work practice controls are. There 
is no principled distinction between these other control methods and 
PPE for purposes of cost allocation (See UAW v. Pendergrass, 878 F.2d 
389, 400 (D.C. Cir. 1989)). For example, in the Cancer Policy 
rulemaking in 1980, OSHA found no distinction, for payment purposes, 
between engineering controls and personal protective equipment 
necessary to protect employees from exposure to carcinogenic 
substances:

    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 employee (45 FR 5261, Jan. 22, 1980).

    Many commenters to the rulemaking agreed that the OSH Act requires 
employer payment for PPE. The ASSE agreed that the OSH Act's mandate 
requiring employers to provide a safe and healthful workplace for their 
employees ``[i]ncludes the financial obligation of employers to provide 
controls to address hazards that could cause injury or physical harm to 
their employees. The majority of ASSE members reviewing this proposal 
generally agreed that most PPE is covered under the Act'' (Ex. 12: 
110).
    AFSCME stated that it ``wholeheartedly concurs'' with OSHA's 
rationale that ``[t]he requirement that employers pay for PPE is a 
logical corollary of the accepted proposition that the employer must 
pay for engineering and work practice controls'' (Ex. 12: 100).
    The International Brotherhood of Teamsters stated that 
``[r]equiring employers to provide personal protective equipment at no 
cost to employees will only clarify the OSH Act's implicit legal 
requirements and its legislative history, as discussed in the preamble. 
The OSH Act clearly charges employers with the responsibility for 
achieving safe and healthful workplaces'' (Ex. 12: 190).
    The AFL-CIO commented that ``[t]he language, intent and legislative 
history of the Act all support the principle that employers are 
required to provide and pay for the measures necessary to protect 
workers by controlling hazards which pose a risk of injury, illness, or 
death to their employees'' (Ex. 12: 19-1). Therefore, the AFL-CIO 
supports a rule that ``codifies an employer's responsibility to pay for 
personal protective equipment'' (Id.).
    Some commenters, however, disagreed that the OSH Act sets forth 
requirements on cost allocation. As a matter of statutory construction, 
some commenters suggested that the only place Congress set forth 
requirements related to costs was in section 6(b)(7) for medical 
examinations. Section 6(b)(7) provides that ``[a]ny such standard shall 
prescribe the type and frequency of medical examinations or other tests 
which shall be made available, by the employer or at his cost'' (29 
U.S.C. 655(b)(7)). OSHA disagrees with these commenters.
    These comments, taken to their logical extreme, suggest that 
employers would pay for nothing under the Act except medical 
examinations or other tests. That means that employees could be asked 
to pay for everything else--their own training, engineering controls, 
air sampling, the setting up of regulated areas, housekeeping measures, 
recordkeeping, and all other protective measures--required under the 
Act and OSHA standards. Such a reading of the Act would be contrary to 
the purpose and legislative history of the Act placing responsibility 
for compliance with employers, as discussed above. The argument was in 
fact rejected in Lead, 647 F.2d at 1232:

    Th[e] maxim (expressio unius est exclusio alterius) [ ``the 
expression of one is the exclusion of another''] is increasingly 
considered unreliable * * * for it stands on the faulty premise that 
all possible alternative or supplemental provisions were necessarily 
considered and rejected by the legislative draftsmen. Thus it is 
incorrect to say that because Congress expressly required that 
standards prescribing the type and frequency of medical examinations 
or other tests shall be made available, by the employer or at his 
cost, that Congress prohibited OSHA from using its broad rulemaking 
authority to require employer payment for other employee rights, 
where it determines, after rulemaking, that such rights are 
necessary to enable the agency effectively to carry out its 
responsibilities.

    Some commenters claimed that there are fundamental distinctions 
between engineering controls and PPE that warrant different cost 
treatment under

[[Page 64380]]

the Act. UPS argued that the primary difference between engineering 
changes and PPE is ``[c]lear and simple: employers own the equipment 
they make engineering changes to--it is part of their facility--but by 
definition [PPE] typically is owned by employees: that is why it is 
personal'' (Ex. 12: 189, p. 19). The SHRM stated that PPE, unlike 
engineering or work practice controls, ``[i]s in the personal care of 
the employee, and the employee plays a direct role in the selection, 
use, sizing, adjusting, care, storage, and control of [the] PPE.'' SHRM 
also stated that ``[t]he employee is generally in a far better position 
than the employer to ensure that personally-assigned PPE is properly 
maintained, used, and stored'' (Ex. 46: 43, p. 19-20).
    OSHA is not convinced by these arguments. As an initial matter, 
OSHA disagrees that by definition PPE is typically ``owned'' by the 
employee. In fact, the record in this rulemaking suggests the opposite. 
With a few exceptions--safety-toe shoes and everyday clothing--
employers typically provide the PPE to their employees and expect the 
employees to return the PPE at the end of the day or at the completion 
of their work for the employer. The record does not support UPS's 
position that employees typically ``own'' such PPE as protective eye 
wear, chemical protective gloves, harnesses, lanyards, ladder safety 
device belts, rubber gloves and sleeves, logging chaps, supplied air 
respirators, encapsulating chemical protective suits, life preservers 
and life jackets, retrieval systems, and the like. OSHA is also not 
swayed by SHRM's arguments that employees are in a better position to 
maintain, use, and store PPE. In fact, the existing PPE standards place 
on employers the responsibility for ensuring proper fit, use, and 
maintenance of PPE.
    The crux of OSHA's position is that PPE is an important control 
measure required by OSHA standards. While PPE is considered the last 
line of defense and OSHA has stated a preference for engineering, work 
practice, and administrative controls, it is still an important type of 
protection utilized by millions of employees every day. Simply because 
PPE is not a part of or attached to an employer's facility does not 
mean that it provides a different protective function. Like other 
control measures, it protects employees from safety and health hazards 
in the worksite and should not be treated categorically differently for 
payment purposes than other control measures.
    Other commenters contended that OSHA's interpretation of the Act 
ignores the many references to employee responsibilities in the statute 
(Exs. 12: 189; 46: 43) In particular, these commenters cited the 
language of section 5(b) of the Act, which requires that each 
``[e]mployee shall comply with occupational safety and health standards 
and all rules, regulations, and orders issued pursuant to this Act 
which are applicable to his own actions and conduct'' (29 U.S.C. 
654(b)).
    There is no doubt that Congress expected employees to comply with 
safety and health standards. It is also true that Congress believed 
that employee cooperation in safety and health was critical to ensuring 
safe and healthful workplaces. What Congress did not intend, however, 
was for employees to bear the cost of ensuring that their workplaces 
were safe and healthy. That is why section 5(b) of the Act focuses on 
an employee's ``own actions and conduct.'' It is also why Congress made 
it clear that the ``[e]mployee-duty provided in section 5(b) [does not] 
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' '' (S. Rep. No. 91-1282, U.S. Cod Cong. & Admin. 
News 1970, p. 5187).
    The role of employers and employees under the OSH Act was 
specifically addressed by the Third Circuit in Atlantic & Gulf 
Stevedores, Inc. v. OSHRC, 534 F.2d 541 (3d. Cir. 1976). In holding 
that Congress did not confer power on OSHA to sanction employees for 
violations of the Act, the court set forth clearly that employers are 
ultimately responsible for ensuring that their workplaces are safe and 
healthy. Employers thus cannot shift financial responsibility for 
ensuring safe and healthful workplaces to their employees.
    Finally, and more fundamentally, some commenters suggested that 
this rule was purely an economic rule and that the OSH Act does not 
give OSHA authority to resolve economic issues. UPS and PMA both 
asserted that ``OSHA's health and safety mandate does not permit it to 
invade collective bargaining with this purely economic rule'' (Exs. 12: 
173, 189). The SCA had concerns about OSHA's ``[a]ttempt to regulate 
wages * * * which is not part of OSHA's mandate and accordingly, should 
not be subject to OSHA regulation'' (Ex. 12: 65). The NMSA stated that 
``OSHA simply has no jurisdiction over employee compensation'' (Ex. 12: 
172).
    These commenters misunderstand this rule and the requirements of 
the OSH Act. The issue is not whether a particular requirement deals 
with economics in some way, the proper test is whether the requirement 
will help reduce significant risk of injury and death, thereby 
protecting the safety and health of employees. In fact, Congress 
confirmed this by specifying that employers must bear the costs of 
complying with OSHA standards. As explained more fully below, this rule 
is directly related to protecting the safety and health of employees 
and will result in substantial safety benefits.
    These comments also do not consider the approximately 20 general 
industry safety and health standards OSHA has issued requiring 
employers to pay for PPE. Many of these standards have been challenged 
and upheld by the courts. For example, in Noise, 773 F.2d at 1451-1452, 
the court upheld the requirement in the hearing conservation standard 
that employers must pay for hearing protectors, finding that the 
requirement was reasonably related to the standard's purpose of 
reducing the risk associated with occupational noise exposure. No court 
has struck down OSHA's standards requiring employers to pay for PPE 
because they were outside of the Agency's statutory mandate.
a. Exceptions
    As set forth in more detail in section V, the final rule contains 
certain exceptions to the general rule that employers must pay for 
required PPE. These exceptions include certain safety-toe protective 
footwear and prescription safety eyewear, logging boots, and everyday 
clothing such as long pants, long sleeve shirts, and normal work boots. 
Including these exceptions to the final rule is consistent with the OSH 
Act and its cost allocation scheme.
    As stated above, the Agency agrees with the general principle that 
employers' legal responsibility for compliance with OSHA standards 
implies a concomitant financial responsibility to pay for the measures 
necessary to that end. OSHA also concludes that this requirement 
applies to most types of PPE. PPE cannot be categorically segregated 
from other types of control measures for payment purposes. This is one 
of the fundamental underpinnings of the final rule. OSHA has concluded 
that a general employer payment requirement will effectuate the OSH 
Act's implicit cost-allocation scheme and reduce the risk of injuries, 
illnesses, and fatalities.
    However, acceptance of these principles does not mean that the OSH

[[Page 64381]]

Act prohibits exceptions to the employer-payment rule. There are 
certain narrow circumstances where OSHA believes that Congress did not 
intend for employers to have to pay for PPE. And Congress expected OSHA 
to make reasonable judgments as to the types of PPE that fit in this 
category. OSHA has recognized these situations in the past and the 
record in this rulemaking supports these determinations.
    In its earliest interpretation of the issue in the Budd case, the 
Agency stressed that safety-toe shoes have certain special 
characteristics that separate it from most PPE for purposes of cost 
allocation. In her brief in Budd, the Secretary stated that:

    [b]y 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.

    In the safety standard on logging operations, 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 several reasons. The Agency 
found that logging boots, unlike other types of personal protective 
equipment, are not reusable. OSHA also noted that logging boots are 
readily portable, and unlike head and leg protection, are sized to fit 
a particular employee. Finally, the Agency noted that there was 
evidence in the record that employees use their logging boots away from 
work.
    In the 1994 memorandum ``Employer Obligation To Pay for Personal 
Protective Equipment'' OSHA also stated its policy that ``[w]here 
equipment is very personal in nature and is usable by workers off the 
job, the matter of payment may be left to labor-management 
negotiations.'' The memorandum also gave examples of this type of 
equipment, including safety shoes, non-specialty safety glasses, and 
cold-weather outerwear.
    OSHA does not believe that Congress intended for employers to have 
to pay for the types of PPE excepted in the final rule. This list 
includes non-specialty safety-toe shoes and boots, everyday clothing, 
cold weather gear, and normal work boots. While serving a protective 
function in certain circumstances, this equipment has either been 
historically exempted by OSHA from employer payment (e.g., safety-toe 
shoes), the item is often used off the job, or is equipment that 
employees must wear to work regardless of the hazards found. For 
example, an employee who works at a computer terminal may have to wear 
a pair of long pants to work (due to a company policy), even though 
wearing long pants is not required for safety reasons. But, a tree 
trimmer may have to wear long pants to work to provide protection from 
tree branches and limbs, etc. In both instances, the employee has to 
wear long pants to work. However, with respect to the tree trimmer, the 
long pants also serve a protective function. In the Agency's view, 
Congress simply did not intend for employers to have to pay for this 
type of equipment, even though it admittedly serves a protective 
function in certain circumstances. Congress intended the Agency through 
its rulemaking function and in its standard-setting discretion to 
identify those narrow circumstances where payment can be left to 
negotiation between the employer and employee. These circumstances 
include such considerations as whether the items are normally used off 
the job or are items employees must wear to work regardless of the 
hazards found.
    OSHA's position in this final rule is also consistent with its past 
interpretations of the issue, as detailed above. Since OSHA's earliest 
interpretations on employer payment for PPE, it has made clear that 
there are some exceptions to the employer payment rule. The principle 
of employer payment cannot be stretched so far that it applies to all 
protective equipment, in all circumstances, at all times.
2. An Employer Payment Requirement Is Implicit in the Wording of 
Existing Standards
    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. Properly viewed, this final rule clarifies an employer 
payment requirement that had previously been implicit in those 
standards.
    In the proposed rule, the Agency set forth in detail its 
interpretive history on the issue of employer payment for PPE. It also 
discussed the holding in the Budd decision and why, in OSHA's view 
Secretary of Labor v. Union Tank Car Co. (18 O.S.H. Cas. (BNA) 1067 
(Rev. Comm.) 1997) was wrongly decided. OSHA received only a few 
comments on this discussion; these comments asserted that the Union 
Tank decision was correct in not reading the term ``provide'' as 
requiring employer payment. OSHA continues to agree with the discussion 
in the proposal and incorporates it in this final rule. Nevertheless, 
OSHA reiterates here the main parts of the discussion because it 
further supports OSHA's interpretation of the OSH Act as requiring 
employers to pay for virtually all PPE.
    From 1974 through October 1994, OSHA made a variety of statements 
on the question of employer payment for PPE. The most authoritative 
statements of the Agency's position are contained in OSHA's safety and 
health standards promulgated through notice and comment. Since 1978, 
OSHA has promulgated many safety and health standards explicitly 
requiring employers to furnish PPE at no cost.\15\ In these 
rulemakings, OSHA concluded that this explicit requirement effectuates 
the cost allocation scheme of the OSH Act.
---------------------------------------------------------------------------

    \15\ 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); 29 CFR 1910.134(c)(4) (respiratory protection 
standard); 71 FR 10100 (Feb. 24, 2006) (hexavalent chromium).
---------------------------------------------------------------------------

    In 1978, OSHA promulgated a standard to protect employees from 
cotton dust. That rule required employers to pay for respirators when 
necessary to protect employees from exposure to this hazardous 
substance (43 FR 27350, 27387 (June 23, 1978)). The Agency noted that 
the language requiring employers to provide respirators ``[a]t 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). (internal quotations omitted) The Agency expressed a 
similar view in the preambles for the 1,2-Dibromo-3-chloropropane 
(DBCP) standard (43 FR 11514, 11523 (March 17, 1978)), the lead 
standard (43 FR 52952, 52994 (Nov. 14, 1978)), the inorganic arsenic 
standard (43 FR 19584, 19619 (May 5, 1978)), the benzene standard, (43 
FR

[[Page 64382]]

5918, 5953 (Feb. 10, 1978)), the ethylene oxide standard, (49 FR 25734, 
25782 (June 22, 1984)), and the asbestos standard, (51 FR 22612, 22697 
(June 20, 1986)).
    In other official agency actions during this same period, OSHA 
interpreted and enforced its standards to require employers to pay for 
personal protective equipment, carving out an exception limited to 
uniquely personal items like safety shoes. In 1979, OSHA issued an 
Interpretive Instruction clarifying that 29 CFR 1910.1029(h)(1), which 
used the language ``shall provide,'' required employers to furnish 
personal protective equipment for coke oven employees at no charge. 
OSHA Instruction STD 1-6.4 (March 12, 1979). See also Erie Coke Corp., 
15 O.S.H. Cas. (BNA) at 1563 (citing this provision). 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, ``[i]t 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 * * *'' 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. The citation was not contested, and thus became a final 
order of the Commission by operation of law (29 U.S.C. 659(a)).
    On October 18, 1994, OSHA issued a memorandum to its regional 
administrators and heads of directorates setting forth a national 
policy with respect to PPE payment. The interpretation outlined in this 
memorandum required 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. Before the 1994 memorandum was issued, OSHA 
concedes that some Agency officials had provided responses to written 
requests for information on 29 CFR 1910.132(a) suggesting among other 
things that the provision was ambiguous on the subject of employer 
payment and best resolved through collective bargaining, or that the 
Review Commission's decision in Budd foreclosed an interpretation 
requiring employer payment. The 1994 memorandum, however, was a 
definitive statement on the issue of employer payment for PPE and 
reflected the Agency's position on the issue as seen in its most 
authoritative statements made since 1974. OSHA subsequently issued a 
national compliance directive, STD 1-6.6, incorporating this 
interpretation and stating that violations of the policy would be 
cited.
    Despite this history, the Review Commission in Union Tank rejected 
the claim that 29 CFR 1910.132(a) could require employer payment for 
PPE. 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 Review 
Commission issued a decision vacating the citation (18 O.S.H. Cas. 
(BNA) at 1067-8). Citing its earlier decision in Budd, the Review 
Commission concluded that 1910.132(a) could not be interpreted to 
require employers to pay for personal protective equipment (Id. at 
1068). The Review Commission believed that the Secretary's position on 
the issue was contrary to previous statements on employer payment for 
PPE and thus, was a departure that was not thoroughly explained.
    The Review Commission's holding in Union Tank and its 
interpretation of 29 CFR 1910.132(a) misstates OSHA's historic position 
on payment for personal protective equipment. Moreover, while two 
commenters to the rulemaking record argued that Union Tank was 
correctly decided (Exs. 12: 173, 189), OSHA believes the case was 
wrongly decided. As described above, OSHA's official interpretations 
from 1974 onward consistently favored employer payment for PPE. This 
view was expressed in a variety of official agency actions, including 
rulemaking proceedings under the Act, agency memorandums and 
directives, and citations. This historic position belies the Review 
Commission's finding that the 1994 memorandum and STD 1-6.6 announced a 
wholly new national policy.
    The Review Commission's mischaracterization of OSHA's historic view 
also stems in part from its erroneous reading of Budd and the 
Secretary's position in that case. In Budd, the respondent's employees 
were working without safety-toe shoes (1 O.S.H. Cas. (BNA) at 1549). 
The Secretary issued a citation alleging a violation of 29 CFR 
1910.132(a) for the employer's failure to provide such shoes (Id). 
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 (Id). The 
Secretary agreed that the employer was not required to pay for the 
shoes because of their special characteristics as uniquely personal; 
however, the union representing the employees objected on the ground 
that the standard required employer payment (Id). Reviewing this motion 
to withdraw the citation, the Review Commission held that Sec.  
1910.132(a) did not require the employer to pay for such shoes, with 
each Commissioner expressing a distinct reason for such. In Union Tank, 
the Review Commission erroneously characterized this holding as 
interpreting ``provide'' as used in Sec.  1910.132(a) as foreclosing 
employer payment (18 O.S.H. Cas. (BNA) at 1067-8). The Commission also 
described the Secretary as having acquiesced to this holding, rendering 
its later position in the 1994 memorandum historically ``unsupported'' 
``[a]fter twenty years of uninterrupted acquiescence in the 
interpretation the Review Commission announced in Budd'' (Id. at 1069).
    OSHA believes that the Review Commission in Union Tank was, 
however, incorrect on both points. First, Budd did not broadly hold 
that ``provide'' in Sec.  1910.132(a) can never be interpreted to mean 
``pay for.'' Although the Review Commission in Budd did agree that 
Sec.  1910.132(a) did not require the employer to pay for safety shoes, 
the Review Commission did not announce a majority opinion extending 
this conclusion beyond safety shoes. Only one Commissioner, Van Namee, 
opined that Sec.  1910.132(a) broadly foreclosed employer payment for 
all protective equipment (1 O.S.H. Cas. (BNA) at 1549-50). The 
remaining Commissioners wrote separate opinions, one limiting his 
holding to the particular facts of the case and the particular context 
of safety shoes (Commissioner Cleary Id. at 1552-3) and one concurring 
without stating a rationale (Commissioner Moran, Id. at 1553-4). 
Because these two other Commissioners filed separate opinions 
announcing distinct rationales, Van Namee's view of ``provide'' as 
universally foreclosing employer payment is not the Commission's 
official holding (See Atlantic Gulf & Stevedores v. OSHRC, 534 F.2d at 
546). Claims to the contrary, made by both the UPS and the PMA in 
comments to the proposed rule (Exs. 12: 189, 179), ignore the 
limitations of the Review Commission's decision.
    The Secretary's position in Budd was similarly limited to the 
particulars of safety shoes and did not, as the Review Commission in 
Union Tank suggested, adopt a broader interpretation foreclosing all 
employer payment for protective equipment. In her Brief in Budd, the 
Secretary conceded that

[[Page 64383]]

employers should not be required to pay for safety shoes. The 
Secretary, however, stressed the special characteristics of safety 
shoes, including their uniquely personal nature and their potential use 
outside the employment site (Brief of the Secretary, served January 10, 
1973, at 8). The Secretary did not, however, extend this rationale 
beyond safety shoes to foreclose all employer payment for protective 
equipment. Rather, 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 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: ``Personal 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 in cases where a standard 
might require it'' (Id. at 10-11).
    Thus contrary to the Review Commission's suggestion in Union Tank, 
the Secretary has never, in Budd or elsewhere, characterized 
``provide'' as used in 29 CFR Sec.  1910.132(a) as foreclosing employer 
payment. If anything, the Secretary's position in Budd recognized a 
general rule of employer payment limited only where equipment, like 
safety shoes, are uniquely personal. This position, like the position 
taken in Union Tank and articulated in this final rule, is consistent 
with OSHA's historic approach to 29 CFR Sec.  1910.132(a) and employer 
payment for PPE generally. It is further evidence of the Agency's 
longstanding position that the OSH Act requires employers to pay for 
PPE.

C. The Final Rule Is an Ancillary Provision Reasonably Related to the 
Purposes of the Underlying PPE Standards

    Separate from making the basic cost allocation scheme of the OSH 
Act explicit in the PPE standards, the final rule is justified as a 
legitimate exercise of OSHA's rulemaking authority to promulgate 
provisions in its standards to help reduce significant risk. The 
existing PPE standards reflect a determination that the use of PPE is 
necessary to reduce a significant risk of injury and death. Once OSHA 
has determined that a significant risk of material impairment of health 
or well being is present, and will be reduced by a standard, the Agency 
is free to develop specific requirements that are reasonably related to 
the Act's and the standard's remedial purpose. This final rule is 
placing ancillary provisions in the existing standards requiring PPE 
use. Thus, OSHA must demonstrate only that requiring employees to pay 
for PPE is reasonably related to the remedial purpose of the PPE 
standards and will help reduce significant risk. OSHA finds that the 
final rule meets this test.
    Requiring employers to pay for PPE used to comply with OSHA's 
standards is a classic ancillary requirement. It helps to ensure that 
the PPE is used properly by employees to protect them from injury and 
death. OSHA has included employer payment provisions as ancillary 
provisions in numerous past rules, as described above. In those 
rulemakings, the requirement was promulgated at the same time as the 
other provisions of the standard to help reduce significant risk. In 
this rule, of course, OSHA is adding the explicit employer payment 
requirement in a separate rulemaking action. However, by doing so, OSHA 
does not change the fundamental nature of the requirement. At bottom, 
this final rule adds an ancillary provision to certain PPE standards to 
help reduce a significant risk of injury.
    After a thorough review of the rulemaking record, OSHA concludes 
that requiring employer payment for most types of PPE increases the 
effectiveness of the existing PPE standards in several ways: (1) The 
requirement encourages a greater degree of usage of PPE by eliminating 
a financial disincentive to such use; (2) it increases the degree of 
employer control over PPE selection and maintenance, thereby increasing 
the effectiveness of the employer's safety program; and (3) the 
requirement indirectly fosters a greater degree of employee cooperation 
in employer safety programs by demonstrating the employer's financial 
commitment to safety.
    First, the reason employer payment will result in improved safety 
is primarily a matter of economics, and how employees' and employers' 
behavior regarding PPE is affected by their financial situations. In 
the proposed rule, OSHA cited enforcement cases that documented 
instances where financial considerations played an important role in 
employee use of damaged and unsafe PPE (Id. at 15407). For example, 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 employees 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 (Id). OSHA also 
referred to the Union Tank case, in which 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 (Id).
    The rulemaking record also strongly supports OSHA's position. As 
several commenters noted, when lower-wage employees are required to 
provide their own PPE, they are likely to avoid PPE costs and thus fail 
to provide themselves with adequate protection. David Daniels of the 
United Steelworkers of America noted that ``The welders have to 
purchase their leathers, gloves and metatarsal boots. The welders will 
take their leathers when the top of the sleeves are burnt with holes in 
them and turn the leathers over which exposes the bottom of the 
employee's arm to heat, hot metal or open flame'' (Tr. 375). Similarly, 
John Molovich, also with the United Steelworkers of America stated 
that:

    Workers in some cases do not earn sufficient wages to pay for 
all the things that are necessary to support themselves and their 
families. As a result, some things are either overlooked or 
eliminated, and in many cases it would be the PPE they use at work. 
Even if they do purchase the PPE, it is usually the cheapest and in 
most cases the most ineffective. This is merely human nature (Tr. 
370).

In response to OSHA's reopening of the record on tools of the trade, 
AFSCME stated:

    Failure to require employers to pay for PPE would also cause an 
unreasonable burden on lower paid workers. Workers at risk would be 
asked to choose between paying for their PPE and providing basic 
needs for their families * * *. The likelihood that worker 
protection would be diminished would be even greater for employees 
whose language and literacy levels may present barriers to the 
appropriate selection and use of PPE (Ex. 45: 1).

    Some commenters provided specific examples of instances where 
having employees pay for PPE could contribute to an increased risk of 
injury. Jackie Nowell of the UFCW testified that:

    [W]hen workers are given the choice between a full week's pay 
and a new metal glove [to reduce risk of injury from sharp cutting 
tools] they'll choose the paycheck. The gloves get holes in them and 
the workers sew them together rather than spend $65 for a new one 
(Tr. 184-185).


[[Page 64384]]


    The evidence suggests that lower wage employees are less likely to 
purchase adequate PPE and replace it when necessary, and are more 
likely to make cosmetic repairs, hide defects, purchase used PPE aged 
beyond its service life, or fail to keep the PPE in proper working 
order. After carefully reviewing the rulemaking record, OSHA is 
convinced that allowing employers to charge employees for PPE will 
result in greater use of unsafe PPE.
    OSHA also believes that employees will be more inclined to use PPE 
if it is provided to them at no cost. As with any product, when PPE is 
available at lower cost, the employee will be inclined to use it more 
readily. One could argue that since it is the employee's safety that is 
at stake, the employee will be more inclined to purchase the best PPE 
available on the market. Unfortunately, as evidence in the record 
suggests, when employees pay for their own PPE, some number of them 
will not take this course, and as a result their safety will be 
compromised (Tr. 104-105, 178, 184-185, 323, 370, 375; Ex. 19, 22A, 23, 
23A, 25, 30, 43, 45; 13, 21, 36, 46: 1, 13, 45).
    Employers'' natural economic behavior of reducing costs could also 
result in some safety and health disincentives. The BCTD and the AFL-
CIO suggested that allowing employees to pay for PPE provides an 
economic disincentive for employers to invest in engineering controls, 
thus increasing risk to employees (Ex. 45: 21; Tr. 322-323). If 
employers ignore the hierarchy of controls because they can shift the 
cost of workplace safety to their employees, they may be choosing less 
effective methods of mitigating hazards. By eliminating this incentive, 
employers may be more inclined to implement more effective engineering, 
administrative, and work practice controls, leading to improved safety 
and fewer injuries and illnesses. This final rule eliminates any 
economic incentives that employers may have to avoid more protective 
control measures.
    Second, OSHA believes that safety benefits will be realized by the 
final rule because it will clearly shift overall responsibility for PPE 
to employers. In past rulemakings, OSHA has concluded that requiring 
employers to pay for PPE will result in benefits because it will 
clearly make employers responsible for the control of the PPE (See 43 
FR 19619 (May 5, 1978) (inorganic arsenic preamble); 46 FR 4153 
(hearing conservation preamble)). Recently, OSHA promulgated a standard 
to protect employees against exposures to hexavalent chromium (71 FR 
10100 (Feb. 28, 2006)). In the final rule, OSHA required employers to 
pay for needed protective equipment. The Agency stated that employer 
payment was necessary because ``[t]he employer is generally in the best 
position to select and obtain the proper type of protective clothing 
and equipment for protection from Cr(VI)'' (71 FR 10355). In addition, 
OSHA concluded that ``[b]y providing and owning this protective 
clothing and equipment, the employer will maintain control over the 
inventory of these items, conduct periodic inspections, and, when 
necessary, repair or replace it to maintain its effectiveness'' (Id).
    From the comments in this rulemaking, it is apparent that some 
employers have shifted some PPE responsibility to their employees along 
with the responsibility to pay for the equipment. Some went so far as 
to suggest that employees have a better idea of the PPE required for 
the work and should rightfully be selecting their own PPE. SHRM stated 
that the employee ``[p]lays a direct role in the selection, use, 
sizing, adjusting, care, storage, and control of [the] PPE'' and that 
``[t]he employee is generally in a far better position than the 
employer to ensure that personally-assigned PPE is properly maintained, 
used, and stored'' (Ex. 46: 43, pp. 19-20).
    OSHA believes that employees can provide any number of useful 
suggestions about employers' PPE programs, including selection, use, 
and care of PPE. However, outside of a few specialized fields, a newly 
hired employee is not in a position to know the types of hazards they 
will face, and the types of PPE they will need for protection from 
those hazards. The employer who controls the workplace is much more 
aware of the hazards encountered in that workplace and the protective 
measures that are needed (Exs. 23, 46-13, 46-33; Tr. 104-105). This is 
the rationale underlying the OSHA standards that require employers to 
perform a hazard assessment to determine the types of PPE that are 
needed (See, e.g., Sec.  1910.132(d) and Sec.  1915.152(b)).
    When employers take full responsibility for providing PPE to their 
employees and paying for it, they are more likely to make sure that the 
PPE is correct for the job, that it is in good condition, and that the 
employee is protected. As ASSE stated:

    Employers correctly understand that their investment in proper 
PPE is an economic investment in productivity as well as a means of 
ensuring that workers go home safe and healthy each day. And to 
drive home that investment, they have recognized that their own 
involvement in PPE provides the best opportunity to ensure proper 
and effective use of PPE on their job sites. Recognizing their 
responsibility for identifying hazards, they provide the follow-
through necessary to address those hazards (Ex. 46-33).

    UPS argued that employer payment would have no effect on PPE 
selection because employers could select the correct PPE, purchase it, 
and then charge employees for the items. It also argued that employers 
could instruct employees to purchase a particular make, model, or 
design of equipment from a particular location and require them to 
present the equipment for verification before beginning work (See, 
e.g., Ex. 189, p. 17).
    OSHA agrees that employers could take these actions and some 
employers use one or both of these practices now. However, OSHA does 
not believe this practice is the norm; there are not likely to be very 
many employers that use complex administrative systems to assure that 
the PPE is appropriate when employees pay for the items. Additionally, 
under these systems, employees continue to have an incentive to 
underreport deficient or worn out PPE that needs to be replaced to 
perform its protective function. OSHA believes that these types of 
systems do not improve safety culture at the worksite, or encourage 
employees to participate whole-heartedly in an employer's safety and 
health program.
    Therefore, OSHA believes that the scenario described by UPS is 
administratively cumbersome for employers, is not widely practiced, and 
does not provide a workable solution to the overall policy problem of 
PPE non-use or misuse. Systems of this type, sometimes called ``company 
stores'' are also likely to be criticized by those who believe the 
employer is making money from administration of the system. As the ISEA 
inquired, ``Should OSHA decide that employers can require that 
employees pay for their PPE, ISEA asks OSHA to explain the mechanism it 
would establish to ensure that employers do not overcharge employees'' 
(Ex. 46:31). Therefore, these commenters advance no sufficient 
alternative and their reasoning is not sufficient to convince the 
Agency that the PPE payment rule is not needed.
    Third, employees may be less likely -++``+-++to participate whole-
heartedly in an employer's safety and health program when they must pay 
for their own PPE, and employer payment for PPE may improve safety 
culture at the worksite. In past rulemakings, this finding has been key 
to OSHA's conclusions that employer payment will result in safety 
benefits. In requiring employers to pay for hearing protectors

[[Page 64385]]

as part of the hearing conservation standard, for example, 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).

    OSHA 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 MRP provision ``[s]pecifically to 
minimize the adverse impact of this factor on the level and quality of 
worker participation in the medical surveillance program'' (Id. at 
54449).
    The record in this rulemaking also supports this position. The ISEA 
summed up the views of many commenters when it remarked:

    A systematic PPE program, driven by management through the 
organization, is an important factor in creating a positive safety 
culture. Employers who provide and pay for PPE recognize that they 
are not simply incurring a cost for equipment, but rather making an 
investment by valuing their employees and avoiding the high direct 
and indirect costs of injury, illness and death (Ex. 12:30).

    Finally, OSHA is persuaded by the overwhelming consensus of 
prominent occupational safety and health organizations that employer 
payment for PPE will result in safer working conditions. OSHA carefully 
examined the hundreds of comments to the rulemaking record that weighed 
in on whether an employer payment requirement would result in safety 
benefits. In doing so, OSHA identified the independent safety and 
health organizations that commented in the record. Unlike the majority 
of commenters, these organizations do not have a financial stake in the 
outcome of the rulemaking, and they do not stand to gain or lose 
economically whether employers or employees pay for PPE. Their sole 
interest in the rulemaking lies in whether or not it will advance the 
interests of occupational safety and health, and protect employees from 
workplace injury, illness and death. It is thus appropriate for OSHA to 
put particular weight on the comments of these organizations.
    The National Institute for Occupational Safety and Health (NIOSH) 
remarked that it has consistently recommended that employers pay for 
all PPE required for the work setting, and shared OSHA's views that:
     ``[e]mployees may compromise their safety and health by 
avoiding or delaying the purchase, maintenance, or replacement of PPE 
if that must be done at the employee's expense'';
     ``when employers do not pay for and provide PPE, it may 
not be worn or may be worn improperly, and it may not be cared for and 
replaced appropriately''; and
     ``when employers do not pay for and provide PPE, incorrect 
or poor quality PPE may be selected and worn by the employee'' (Ex. 12: 
130).
    The American College of Occupational and Environmental Medicine 
(ACOEM), representing 7,000 occupational physicians, supported employer 
payment for PPE, stating that: ``It is important that employers be 
responsible for ensuring that the personal protective equipment 
selected for use at their facilities is appropriate and maintained in 
proper working order. We do not believe that this can be achieved if 
employers are not directly involved in the purchase and maintenance of 
that equipment'' (Ex. 12: 248).
    The comments of the Mount Sinai Irving J. Selikoff Center for 
Occupational and Environmental Medicine were based on experience with 
the 7,000 employees per year they treat for occupationally related 
disease and illness. They argued that employees cannot know the site-
specific safety and health issues before they start employment, which 
could lead employees to have equipment that is incompatible with the 
job site; that if employees purchase their own PPE, employer 
supervision of PPE maintenance becomes more complex, which can lead to 
less safety; that employees who pay for their own PPE are less likely 
to bring up exposure concerns [with their employers]; and that employer 
safety education is more complicated when employees pay for their own 
PPE. They also argued that:

    Lower income, non-English speaking, and immigrant workers are 
most likely to be vulnerable to a shift in responsibility of 
purchase. We know, from advising our patients about PPE, that money 
is an issue for procurement and appropriate use. The purchase of a 
pair of prescription safety glasses or shoes can represent a notable 
burden to workers, whereas it represents operating costs for 
employers. In an attempt to economize, lower quality equipment is 
purchased, and equipment is not updated as it should be (Ex. 46: 
35).

    The American Association of Occupational Health Nurses (AAOHN), 
representing 12,000 occupational health nurses in a wide variety of 
industrial sectors supported the rule, noting that allowing employees 
to choose their own PPE may pose administrative and enforcement 
problems for employers. AAOHN also reported a situation where a 
manufacturing facility allowed individual preference and selection for 
safety eyewear and found that 70 percent of the female employees were 
using glasses without safety lenses (Ex. 12: 32).
    In its 1999 comments, the American Society of Safety Engineers 
(ASSE), representing about 30,000 safety and health professionals, 
noted that most employers already pay for PPE during the course of 
their normal business operations, and that:

    [m]any organizations benefit from the policy of paying for 
personal protective equipment. The alternative for these 
organizations could be the use of substandard equipment by 
employees, inconsistent levels of employee protection, increased 
numbers of injuries, illnesses and fatalities, and employers having 
to expend resources on litigation to defend themselves.

ASSE also related several instances where employees were providing 
their own eye protection, and failed to select eyewear meeting the OSHA 
standards, resulting in OSHA citations. The employers had mistakenly 
assumed that the employees were selecting the right equipment (Ex. 12: 
110).
    In its 2004 comments on tools of the trade, ASSE reaffirmed its 
1999 arguments supporting PPE payment by employers and provided a list 
of quotes from several of their member safety engineers that supplement 
the views of OSHA's expert panel. Some of those comments are:

     It is just good business to provide [and pay for] 
equipment so that we control quality and type so that injuries are 
prevented. I'm sure we save far more in the long run by preventing 
injuries than we spend on PPE;

[[Page 64386]]

     I have found that the PPE purchased by the employee to 
be old and worn out;
     Employees generally should not be allowed to bring 
safety equipment on the jobsite * * * this insures that the 
equipment is in good condition and can be utilized; and
     Where people provide their own tools, let alone PPE, 
there has been a resistance to keeping current with the best 
equipment and practices. As an example, I have seen people with 
sentimental value assigned to their hard hats that no longer meet 
manufacturers' specifications (Ex. 46: 33).

    There are also large numbers of comments from employers who 
recognize the value of PPE payment, and supported some form of PPE 
payment requirement (See, e.g., Exs. 12: 2, 4, 6, 9, 10, 12, 21, 58, 
101, 105, 113, 117, 134, 149, 184, 190, 210, 218, 230, 247). Of 
particular interest are the comments of the Voluntary Protection 
Programs Participants' Association (VPPPA), whose members have all 
implemented OSHA approved safety and health management systems. More 
than 1,500 workplaces have successfully completed OSHA's Voluntary 
Protection Program (VPP) evaluation and audits, and have workplace 
injury and illness rates that are below the average for their industry. 
VPPPA, as well as VPP companies that commented on the proposed rule, 
supported employer payment for PPE (See, e.g., Ex. 12: 113). VPPPA 
remarked that:

    We commend OSHA for promptly moving forward in clarifying the 
law regarding employer payment for PPE. The Secretary of Labor v. 
Union Tank Car decision had little effect on our association's 
members, who continue to believe that paying for their employees' 
PPE is the most sound strategy for promoting a safe and healthy 
workplace. We expect that with promulgation of this rule, more 
workplaces will reach this conclusion and maximize protection for 
their employees (Ex. 12: 113).

    For these reasons, OSHA rejects the comments of some who argued 
that the proposed rule would have no direct impact on safety and health 
(see, e.g., Exs. 12: 14, 17, 22, 29, 31, 36, 41, 47, 55, 65, 73, 82, 
90, 91, 120, 121, 140, 172, 194, 216, 225, 241) and that there was no 
proof of safety and health benefits (see, e.g., Ex. 12: 173, 189). The 
rulemaking record, examined as a whole, leads OSHA to the opposite 
conclusion. There are significant safety and health benefits of 
employer payment for PPE.
    Some commenters argued that OSHA's estimate of the quantitative 
benefits was unreliable because it did not factor in the different 
types of jobs and PPE involved with the rule. The American Iron and 
Steel Institute (AISI) found to be problematic the Agency's 
quantitative estimate of the incidence of PPE non-use or misuse when 
employees must pay for PPE as compared to employers paying for PPE. 
AISI argued that the estimate assumes that the training and behavior of 
employers and employees across all industries is the same, regardless 
of the nature of the hazard, the level at which employees are 
compensated, or whether there is a collective bargaining agreement 
which addresses the purchase of PPE (Ex. 12: 188). OSHA agrees with 
AISI that different employers and employees have different behaviors 
regarding PPE. Therefore, the final rule may result in more safety and 
health benefits (and more costs) for some employers, while it impacts 
other employers less. However, as described above, the Agency believes 
that the overall impact of the rule will result in fewer occupational 
injuries and illnesses because it will improve the use of PPE in the 
workplace.
    Further, OSHA wants to emphasize that the quantitative benefits 
estimate in the final rule is not based solely on the opinion of one 
expert. OSHA has estimated the benefits of the final rule based on 
three different assumptions. Even under the most conservative 
assumption--that employer payment for PPE will result in a 2.25 percent 
decrease in the misuse or nonuse of PPE--the final rule will prevent 
approximately 2,700 injuries per year across all industries affected, a 
substantial number of injuries avoided. (For a complete discussion of 
OSHA's benefits analysis, see section XV below.)
    Finally, some commenters argued that there was contrary evidence to 
OSHA's conclusion that employer payment for PPE would result in 
benefits--namely state injury data in states with employer payment for 
PPE requirements. Two commenters raised the concept that, if PPE 
payment was effective at reducing workplace injuries and illnesses, an 
analysis of individual state occupational injury and illness rates 
should indicate a lower rate for those states that require PPE payment. 
They argued that the State of Minnesota, which has had a state law 
requiring employers to pay for all PPE, has injury and illness rates 
that are above those for the United States as a whole, and that if PPE 
reduced workplace injuries and illnesses, Minnesota should show a lower 
rate (Exs. 12: 173, 189).
    OSHA rejects this analysis for three reasons. First, the effect of 
PPE payment on the injury and illness rates may not be large enough to 
affect the rates, given that they are only reported at a general level. 
The Bureau of Labor Statistics (BLS) reported over 4,200,000 workplace 
injuries and illnesses for 2005, with a rate of 4.6 cases per 100 full-
time employees. Using these statistics, it would require a change of 
over 91,000 injuries and illnesses to move the U.S. rates by one tenth 
of a point, the most detailed estimate published by the BLS. If the 
entire estimated benefit of 21,789 averted injuries and illnesses 
occurred within one year, it would not be sufficient to change the U.S. 
rate by even one tenth of an injury or illness per 100 full-time 
employees. Therefore, while the effect of the rule on occupational 
safety and health is expected to be substantial, it is unlikely to 
dramatically affect the national statistics. The effect on state-
specific statistics is similar, so it is not surprising that a pattern 
of lower rates is not readily apparent in the states that require PPE 
payment.
    Second, the states that require payment typically do so because the 
requirement is set forth in their enabling legislation. Because injury 
rates are not available for this time period it is not possible to 
perform a meaningful before and after analysis to determine observable 
effects due to PPE payment. Third, occupational injury and illness 
rates are affected by a large number of factors, many of which may not 
yet be identified, and there is considerable uncertainty concerning how 
they work in combination to affect overall rates. For example, the BLS 
rates are affected by the mix of industries within a state, weather 
conditions, large scale events (e.g. natural disasters), technology 
advances, work-practice customs, workers' compensation insurance 
programs, workforce characteristics, and economic factors, such as 
changes in employment and productivity. Of course, OSHA recognizes that 
its policies also affect those rates, that changes in standards, new 
enforcement policies, and publicized OSHA enforcement cases have 
influence over workplace safety and health. Given the complex nature of 
state-specific injury and illness rates, it is difficult, if not 
impossible, to discern the effect of PPE payment policies on state-
specific rates. Therefore, OSHA does not find the state plan argument 
to be persuasive. As noted in the benefits section below, the agency 
considered a wide range of injury reductions when assessing the effects 
of the standard. The Agency is confident, for all the reasons outlined, 
that this rulemaking will result in an overall reduction in injury 
rates and net benefits to society.
    For all of the reasons discussed above, and after careful review of 
all comments, the Agency concludes that the final rule will help reduce 
the risk

[[Page 64387]]

associated with the underlying PPE standards.
1. Significant Risk
    Some commenters argued that OSHA must find a significant risk from 
employers not paying for PPE and find that this rule would 
substantially reduce that risk (See, e.g., Exs. 12: 173, 188, 189). 
AISI challenged OSHA's arguments for requiring payment, asserting that 
the Agency had not clearly identified a significant risk of harm, that 
the Agency did not establish the ability of the PPE payment standard to 
reduce the risk, and did not establish that the requirements are cost 
effective (Ex. 12: 188, pp. 7, 8). UPS made the same arguments, adding 
that ``OSHA has failed to even identify the existence of a significant 
risk of material impairment resulting from an employee paying for his 
own PPE'' (Ex. 12: 189, p. 5).\16\ The PMA added that OSHA is required 
to make a threshold finding:
---------------------------------------------------------------------------

    \16\ UPS also argued that the rule must meet the test for a 
safety standard and therefore, that OSHA must demonstrate a cost-
benefit rationale for the rule. UPS misstates the legal test for 
safety standards. In UAW v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994) 
(Lockout/Tagout II), OSHA declined to adopt a cost-benefit test for 
safety standards and the court accepted OSHA's position. 
Nevertheless, OSHA has analyzed the costs and benefits of the rule. 
This analysis is contained in Section XV, Final Economic Analysis.

    [t]hat significant risks are present and can be eliminated or 
lessened by a change in practices before it can promulgate a 
standard under 29 U.S.C. 651(b). Specifically, OSHA must determine 
that significant risks of material impairment are present and can be 
eliminated or meaningfully lessened by a change in practices or 
equipment. For a health standard, this requires a significant risk 
of material impairment of health or functional capacity and a 
probability of significant benefit from a rule which would guard 
---------------------------------------------------------------------------
against such risk (Ex. 12: 173, pp. 13, 14).

    These commenters' misunderstand the legal underpinnings of this 
rule. In promulgating the underlying standards that require PPE, the 
Agency met its significant risk burden. As explained above, this is an 
ancillary provision that will help effectuate the use of PPE. And OSHA 
finds that it has clearly met the test that the proposed revisions to 
the existing PPE standards are reasonably related to their purpose of 
preventing injury by requiring the provision and use of adequate 
personal protective equipment.
    If employees are exposed to hazards not addressed by engineering, 
work practice, or administrative controls, and they are not provided 
with appropriate PPE, they may be injured, killed, or overexposed to 
dangerous chemicals, noise, or radiation. The risk is caused by failure 
of employers to provide their employees with appropriate PPE to guard 
against the workplace hazard, and the failure of both employers and 
employees to properly and consistently use appropriate PPE. The PPE 
payment provisions use payment practices to help reduce that risk.
    Employee injuries related to lack of appropriate PPE are common. 
OSHA has investigated hundreds, if not thousands, of accidents where 
lack of PPE contributed to workplace injury, overexposure to chemicals, 
and death. The following summaries from OSHA's publicly available 
Integrated Management Information System (IMIS) accident investigations 
database provide just a few examples of the type of accidents where 
properly worn PPE may have allowed an employee to survive an accident, 
avoid injury or chemical exposure, or lessen the extent of injuries 
resulting from an accident.
     In 2000, an employee dipping metal parts into a molten 
salt mixture was splashed with molten salt, resulting in second degree 
burns on both his arms and face. The employee was not wearing 
appropriate PPE to protect his arms, nor a face shield, even though the 
supervisor working next to him was properly equipped with PPE.
     In 2000, a construction employee was using a hammer to 
break up tile during a dismantling operation. A piece of the tile flew 
back and struck his left eye, resulting in permanent blindness.
     In 1999, an employee was working in the pouring area of a 
foundry without PPE, skimming hot molten metal into a sand mold. The 
mold broke and splashed molten metal onto the floor, where it ran into 
his boot. He received third degree burns to half of his foot and was 
hospitalized.
     In 1999, a warehouse employee was struck on the head by a 
supporting bar that fell from above, receiving a head laceration that 
required hospitalization. The employee was not wearing any form of head 
protection.
     In 1999, an employee building a cinder block wall was 
making a masonry line with a thread when the thread broke and struck 
him in the face, resulting in hospitalization to treat the complete 
loss of one eye and multiple fractures to his nose and face. The 
employee was not wearing any eye or face protection.
     In 1998, an employee trimming trees was removing tree 
limbs from the ground, when a limb fell 30 feet and struck him in the 
head, resulting in his death. The employee was not wearing a hard hat.
     In 1997, an employee was installing television cable from 
an aerial lift, wearing a baseball cap but not an insulating hard hat. 
The employee contacted an overhead power line with his head and was 
electrocuted.
     In 1996, an employee's foot was run over by a cart, 
resulting in a compound fracture of the foot. He was wearing tennis 
shoes instead of safety toe shoes.
     In 1996, an employee was transferring a corrosive 
substance between storage tanks without eye protection. A small splash 
of the liquid struck him in the face and eyes, resulting in 
hospitalization.
     In 1995, an employee working for a building maintenance 
service was cleaning a glass window without fall protection when he 
fell 70 feet and died.
     In 1995, an employee was using a gas cutting torch to cut 
the metal shell of a rail tank car without welding PPE. The heat and 
flame of the torch set his work uniform on fire, resulting in burn 
injures that required six days of hospital treatment.
     In 1995, a shipyard employee was attaching a 300 pound 
steel plate to a flange while not wearing protective footwear. The 
plate fell and struck his feet, resulting in partial amputation of his 
toes.
    Further, OSHA commonly finds PPE problems during its inspections. 
In 2006 the Agency issued over 13,000 PPE violations, nearly 8,000 of 
them serious in nature.
    Finally, even if OSHA needed to find in this rule that employee 
payment for PPE is a significant risk and requiring employers to pay 
for PPE would substantially reduce that risk--which OSHA does not need 
to demonstrate--OSHA's estimate of injuries avoided meets that test. As 
set forth in detail in the benefits analysis, a conservative estimate 
of the beneficial impacts of the rule show that once promulgated, it 
will prevent approximately 2,700 injuries per year. This is a 
significant reduction in injuries by any measure and is based on the 
most conservative assumption with respect to the benefits of the final 
rule. (The highest estimate of the benefits of the final rule is that 
it will prevent 21,798 injuries per year.)
    One commenter disagreed with OSHA's position taken in the 
proposal--and in the final rule--that the Agency need not make a 
significant risk finding for each provision in a standard. The AISI 
stated that OSHA's position is ``[i]nconsistent with the Constitutional 
principles under which Congress delegated rule making authority to the 
agency, and contrary to the requirements of Sections 6(b) and 3(8) of 
the OSH Act as defined by the United

[[Page 64388]]

States Supreme Court in the Benzene and Cotton Dust decisions'' (Ex. 
12: 188, p. 10).
    AISI's interpretation of the OSH Act's requirements for 
promulgating standards is incorrect. As the Supreme Court has stated 
and as discussed above, before promulgating a standard, OSHA must 
demonstrate that significant risk exists and that the standard will 
substantially reduce that risk. This requirement applies to the 
standard as a whole. OSHA is not required to make a provision-by-
provision significant risk finding, which would be an impossible burden 
to meet. There are sometimes over a hundred different provisions in 
OSHA standards that operate together to reduce the significant risk 
faced by employees at the worksite. These provisions include exposure 
monitoring, medical surveillance, respiratory protection, protective 
clothing, training, hazard communication, information sharing, and so 
on. OSHA has never in the past, nor is it required to, make a 
significant risk finding for each of these provisions. In fact, this 
issue was squarely addressed in the review of OSHA's hearing 
conservation standard, where the Fourth Circuit stated that the 
appropriate test was whether the individual requirements of the 
standard were reasonably related to the purposes of the enabling 
legislation (Noise, 773 F.2d at 1447).
2. Cost Effectiveness
    OSHA concludes that the final standard is also cost effective. 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 (Cotton Dust, 452 U.S. at 514 n.32). Cost 
effectiveness is one of the criteria that all OSHA standards must meet. 
The OSH Act does not support a requirement that imposes greater costs 
than available alternatives without any safety benefit. For employer 
payment to be more cost-effective, it must provide the same or better 
level of safety at a lower cost than permitting employers and employees 
to determine who pays for PPE. After carefully reviewing the rulemaking 
record, OSHA has concluded that this final rule is the most cost-
effective of the available alternatives.
    OSHA considered the effect on safety of permitting employees to pay 
for PPE in comparison to imposing an employer payment requirement, with 
limited exceptions. (OSHA considered four specific alternatives to the 
final rule, which are discussed in more detail in the Alternatives 
Section above.) While there are many reasons why employer payment for 
PPE will increase safety and OSHA finds these reasons compelling, some 
commenters suggested reasons why employee payment may have some safety 
advantages in certain circumstances.
    A few commenters argued that safety would be enhanced when 
employees pay for PPE because they would be able to select PPE that is 
comfortable for them and they would take better care of its condition 
(see, e.g., Exs. 12: 31, 48, 68, 140, 165, 203; 45: 5, 6; 46: 4, 17, 
32, 42). For example, a representative of HBC Barge stated in a written 
comment that: ``By having the employee pay for PPE that is classified 
as `tools of the trade' the effect on workplace safety and health can 
only be positive. Ownership of equipment on the average will bring a 
pride in maintaining their equipment in proper working order'' (Ex. 46: 
4). A representative of the National Rural Electric Cooperative 
Association commented that:

    If employees pay for their own tools-of-the-trade PPE there is a 
greater likelihood of accurate fitting to the individual and a 
greater likelihood that individual preferences will be met. As a 
result, employees are more likely to wear PPE that they provide 
themselves. The more that workers wear appropriate PPE, the safer is 
the workplace (Ex. 46: 42).

    The National Electrical Contractors Association (NECA) stated that 
employees who work on construction sites were in the best position to 
provide certain personal protective equipment and tools, and suggested 
that safety could be compromised in some situations where employers 
provide the equipment to be shared by employees:

    Certain Lineman's tools have long been considered `tools of the 
trade.' Lineman's belts must be measured and sized to fit the 
individual employee. Exchanging such belts with other employees 
would cause belts to have wider or smaller loops, which could lead 
to dropped tools. For fall protection, Lineman's hook gaffs are 
sharpened to the `taste' of the lineman, hooks are individually 
adjusted to the lineman's calf length and preference, and hook pads 
are broken in to fit the individual for fatigue and stress 
reduction. Constantly transferring hooks, belts, and safeties would 
cause a disconcerting concern for linemen (Ex. 12: 16).

    NECA also commented that flame-resistant clothing is best purchased 
by the employee, in part because the employee can better ensure daily 
care, proper fit, and adequate laundering of the clothing, which ``[i]s 
vital to the longevity of the clothing and health of employees * * * '' 
(Ex. 12: 16).
    These and other commenters stated that employees who regularly 
carry the same PPE from job to job may have greater familiarity with 
their PPE than employees who are provided new PPE each time they work 
for a new employer. This consistency may also assure employees that the 
PPE they will be using is best fitted and suited to their own needs. 
Given this, these commenters suggest that it may be more cost-effective 
for employees in some industries with high turnover rates to supply 
basic PPE such as hardhats, safety glasses, and gloves that can be 
carried easily from establishment to establishment.
    OSHA does not agree with commenters that employee payment will 
result in greater safety benefits than the final rule. As discussed in 
detail above, OSHA finds that the final rule will result in significant 
benefits for employees and will reduce the risk underlying the existing 
PPE standards. Employers are in the best position to know and address 
the hazards in their workplaces, and payment for PPE will provide an 
incentive to better understand those hazards and take appropriate 
measures to ensure PPE is used by their employees. The rulemaking 
record strongly supports OSHA's finding of safety benefits from the 
final rule.
    The commenters who suggested greater safety benefits under an 
employee payment scenario seem to base their suggestion on the fact 
that since PPE is ``personal,'' if employees select and purchase it, it 
will be more suited to their tastes and they will wear it more often. 
While it is true that PPE is more effective when it is suited to the 
size and fit of the employee, OSHA does not believe that this is 
relevant to the question of whether employers or employees should pay 
for the PPE. The employer is responsible under existing OSHA standards 
to ensure that the right PPE is used in the workplace and that it fits 
the employee; OSHA has found, on the basis of this rulemaking record, 
that an employer payment requirement will help ensure that employers 
carry out this responsibility. OSHA does not believe that having 
employees pay for the PPE will result in improved employee use of the 
equipment.
    In addition, OSHA has crafted the final rule in a cost effective 
manner. It recognizes the safety benefits of employer payment for most 
types of PPE, but exempts certain PPE from the general payment 
requirement. Much of the exempted PPE can be used off of the job and is 
the kind of PPE that employees may take with them from job to job or 
employer to employer. The final rule also specifically recognizes that 
OSHA standards allow for

[[Page 64389]]

employees to bring on the worksite and use PPE that they already own. 
Thus, the final rule addresses much of the cost-effectiveness concerns 
raised by commenters for certain PPE in high-turnover industries.
    OSHA also believes that employer payment for PPE will result in PPE 
purchases that are on the whole less costly than if employees paid for 
the PPE. Employers can frequently utilize bulk purchase discounts, 
which means that the same amount of PPE will be provided at a lower 
cost, or more PPE will be provided for the same cost. Requiring 
individual employees to purchase individual pieces of equipment is not 
an efficient way to provide this critical protection.
    Finally, according to OSHA's survey data, the vast majority of 
employers, found in all industries, are already paying for all of their 
employees' PPE. OSHA does not believe this would be the case if 
employer payment was not cost effective. This demonstrates that most 
employers have made a business decision that paying for PPE is a cost 
effective method of providing protection for their employees.

XV. Final Economic and Regulatory Flexibility Analysis

A. Introduction

    OSHA has prepared this Final Economic Analysis to examine the 
feasibility of the 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 rule will clarify that, 
with certain exceptions, employers are required to pay for protective 
equipment, including personal protective equipment (PPE), whenever OSHA 
standards mandate that employers provide such equipment to their 
employees. The employer is not required to pay for non-specialty 
safety-toe protective footwear (including steel-toe shoes or steel-toe 
boots) and non-specialty prescription safety eyewear, provided that the 
employer permits such items to be worn off the job-site. The employer 
is also not required to pay for the logging boots required by 29 CFR 
1910.266(d)(1)(v); everyday clothing, such as long-sleeve shirts, long 
pants, street shoes, and normal work boots; or ordinary clothing, skin 
creams, or other items, used solely for protection from weather, such 
as winter coats, jackets, gloves, parkas, rubber boots, hats, 
raincoats, ordinary sunglasses, and sunscreen.
    OSHA's requirements for PPE appear in many health, safety, shipyard 
employment, marine terminal, longshoring (referred to as maritime 
standards), 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 section, above.)
    This rule will apply to general industry, construction, and 
maritime workplaces covered by the PPE provisions in existing OSHA 
standards. The rule will clarify OSHA's position that, with the 
exceptions noted, employers must provide required PPE to their 
employees at no cost to those employees. The kinds of PPE addressed by 
this rule include nonprescription eye and face protection; hard hats; 
metatarsal protection; gloves and protective clothing; fall protection 
and welding equipment; and hearing protection. (A more detailed list of 
the kinds of PPE covered appears in the Summary and Explanation 
section, above.)

B. Need for the Rule and Market Failure

    The justification for imposing appropriate occupational safety and 
health standards generally, and for adopting this change to the PPE 
standards in particular, is that without these requirements, fatality 
and injury risks to employees would remain unacceptably high. OSHA has 
determined that this rule meets the standards for regulation 
established by Congress through the passage of the Occupational Safety 
and Health Act. In addition, risks would be too high in terms of 
imposing large net costs (both pecuniary and non-pecuniary) on society, 
producing an inefficient allocation of resources, and reducing overall 
social welfare.
    OSHA has found that in this case, market incentives alone are 
unable to allocate sufficient resources to provide for social welfare 
enhancing improvements in safety and health. By itself, however, the 
existence of constraints which prevent optimal efficiency would not 
necessarily justify regulatory intervention because regulations 
themselves may introduce costs, rigidities, and distortions. However, 
in this case the negative consequences of not regulating are outweighed 
by the net benefits of regulation. The sources of market failure could 
include the existence of externalities, the high cost of or lack of 
necessary information, including large uncertainties that are costly to 
remedy.
    Measures for improving occupational safety and health involve 
significant externalities. The consequences of an injury or fatality 
usually extend beyond the affected employee and employer. A substantial 
part of the emotional and financial costs associated with an injury or 
fatality is often borne by third parties that are not compensated for 
their costs, including other workers, families and friends. Thus, a 
substantial part of the benefits associated with improvements in safety 
and health is externalized. As a result, even a mutually agreeable 
arrangement between employers and employees could represent a socially 
undesirable outcome.
    A second market failure concerns the cost of and lack of necessary 
and sufficient information. The risks of injuries or fatalities 
specific to a particular job at a particular firm for a future time 
period are difficult to know or predict. The compilation of more 
detailed and current information on employer- and job-specific risks 
could provide improvement, but at immense cost, difficulty, and 
controversy. For example, such risk estimates would have to take into 
account the presence or absence of any number of combinations of 
controls or procedures in the context of innumerable different 
circumstances. Without adequate information regarding occupational 
risks and how they may be affected by innumerable diverse factors, 
employer and employee negotiations regarding pay and working conditions 
may not adequately reflect the nature of such risks. Typically, the 
employee will be at a disadvantage in assessing and controlling these 
risks, especially with regard to employer- and worksite-specific 
considerations; in addition, employers are not always fully aware of 
the nature of risks, the full costs associated with an injury incident, 
the extent to which they can be reduced, and the methods and resources 
that can achieve reductions in risk.
    A third source of market failure involves the high costs and 
uncertainties associated with attempts at restitution. The costly 
nature of the legal system, together with the uncertainties associated 
with the outcome of cases, limits the prospect for tort liability to 
create the proper incentives. Problems with tort liability laws have 
been recognized for decades and were partially addressed through the 
establishment of no-fault workers' compensation programs in every 
state.

[[Page 64390]]

However, even the workers' compensation systems do not adequately 
correct the market failures because insurance rates are frequently not 
employer-specific, coverage and compensation are only partial, and the 
outcome still leaves injury and fatality rates above levels achievable 
through cost-effective regulatory requirements.
    This rule is a response to these market failures. When it 
promulgated the OSH Act, Congress noted the failure of the market to 
prevent a significant number of occupational injuries and fatalities. 
Congress concluded that promulgation of the OSH Act was necessary to 
create a safe and healthful working environment. As stated by Senator 
Cranston:

    [T]he vitality of the Nation's economy will be enhanced by the 
greater productivity realized through saved lives and useful years 
of labor. When one man is injured or disabled by an industrial 
accident or disease, it is he and his family who suffer the most 
immediate and personal loss. However, that tragic loss also affects 
each of us. As a result of occupational accidents and disease, over 
$1.5 billion in wages is lost each year (1970 dollars), and the 
annual loss to the gross national product is estimated to be over $8 
billion. Vast resources that could be available for productive use 
are siphoned off to pay workmen's compensation and medical expenses 
* * *. Only through a comprehensive approach can we hope to effect a 
significant reduction in these job death and casualty figures (Id. 
at 518-19).

As explained in detail above, Congress established that employers 
should bear the cost of creating a safe and healthful workplace, and 
thus directed them to comply with health and safety standards 
promulgated by OSHA. This rule is consistent with the OSH Act to the 
extent this rule simply clarifies Congress's determinations that 
employers must bear the cost of compliance with OSHA standards.
    OSHA has also determined that the rule is necessary to further 
reduce the significant risk associated with OSHA's standards requiring 
the use of PPE. It has become clear that employees frequently fail to 
perceive the risk of having worn out PPE. Furthermore, the workers' 
compensation system, aside from raising the cost of restitution, has 
introduced distortions into the market. Workers' compensation premiums 
are frequently not experience-rated; many employers are thus given 
limited incentive to reduce injuries--they end up paying the same 
amount into the system regardless of the level of safety at the 
workplace.
    In most OSHA rulemakings, the cost of providing safety falls 
squarely on the shoulders of the employer, although in efficient 
markets, the cost of rulemaking may be passed on, to an extent, to 
other market participants such as employees and consumers. Regardless, 
our research has shown that often employers pay for PPE. However, OSHA 
has also found in this analysis that requiring all employers to pay for 
all PPE, with few exceptions, leads to a better regulatory outcome. For 
example, with workers' compensation benefits paid to the employee 
remaining fixed under state law, the employee's incentive to acquire 
proper PPE or replace it in a timely manner may be less than the total 
costs associated with a possible accident as a result of the assurances 
provided by the workers' compensation system. The risky and tragic 
results of this market distortion are written about extensively in the 
Legal Authority section of the preamble. One way to correct this is to 
require that employers pay for PPE.
    The PPE payment rule will improve efficiency and social welfare by 
producing net benefits in conjunction with correcting the deleterious 
outcomes resulting from the market failures associated with the 
protection of occupational safety and health.

C. Nonregulatory Alternatives

    Market failures in general can often be addressed through 
approaches other than regulation, and OSHA considered the potential for 
such approaches for the market failures in the market for occupational 
safety and health. For example, additional and more readily available 
information regarding occupational risks and practical solutions 
relevant for particular workplaces could help raise awareness. Efforts 
to provide direct assistance for reducing risks could be expanded.
    As a practical matter, however, frequently regulation is required 
to facilitate the transmission of information. As outlined in the Legal 
Authority section, one goal of the rule is to clarify the 
responsibility for providing PPE. In the absence of clear lines of 
responsibility stretching back to the employer, there is often a 
failure to provide the information. On another level, the failure of 
the employer to pay for the PPE is interpreted by the employee as a 
sign the employer is not serious about the importance of safety and 
health.
    OSHA intends to continue to strive to address occupational hazards 
through these alternatives to regulation where appropriate. However, 
due to the nature of the market failures as described above, these 
measures by themselves would not sufficiently reduce risks. As outlined 
in the Legal Authority section, not only is there a significant risk 
existing to employees from the lack of adequate PPE, but the OSH Act 
implicitly requires employers to pay for it. OSHA concludes that for 
the hazards requiring PPE, a mandatory standard clearly setting forth 
an employer's obligation to pay for PPE is necessary, just as it is for 
engineering and work practice controls.

D. Industry Profile

    The rule is concerned only with who pays for OSHA-required PPE; 
that is, it will not require employers to provide PPE where none has 
been required before. Instead, the rule merely stipulates that required 
PPE be paid for by the employer. If all employers are in full 
compliance with requirements that PPE be provided, then PPE is already 
being paid for by either the employer or the employee, and the rule 
will shift the cost of that portion of the PPE currently being paid for 
by the employee to the employer. (See the Legal Authority section of 
the preamble, above, for details of OSHA's interpretation of this 
issue.) Such a shift in who pays the costs will represent a transfer 
within the economy and not a net cost to the economy. However, to the 
extent that a change in payment results in more or better PPE being 
used, then this rule will lead to costs and benefits to the economy. 
OSHA believes that this rule will result in improved PPE use and, thus, 
will lead to both social costs and benefits. This issue is discussed in 
more detail below.
    To determine the extent of current PPE usage, the potential 
magnitude of any shift in costs, and possible social costs, OSHA has 
developed a profile of industry PPE use and payment patterns.\17\ Most 
employers are already paying for the PPE they provide to their 
employees to comply with OSHA standards. The most recent study of 
collective bargaining agreements showed that 55 percent of contracts 
mentioning safety equipment stipulate that employers are to pay for 
PPE, while only 11 percent of such agreements require the employee to 
pay for any PPE \18\ (BNA, 1995). Employers currently pay for PPE for a 
variety of reasons: Because of labor-management agreements; for 
workers' compensation purposes; because if employers pay for the PPE, 
they know what kinds of PPE their employees are using and they can

[[Page 64391]]

ensure that it is replaced when needed; and because they can require 
standardized procedures for cleaning, storing, and maintaining it. 
Employers 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, and can ensure they will minimize any liabilities associated 
with accidents preventable by proper PPE use. 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 for 
the proposed rule, are:
---------------------------------------------------------------------------

    \17\ This rulemaking primarily affects non-State Plan States, as 
the majority of employees in State Plan States are already covered 
by requirements equal to or greater than this final rule. 
Approximately 59 percent of U.S. private sector workers work in 
states not covered by OSHA State Plans for the private sector [BLS, 
2004], and are thus affected by this rule.
    \18\ This figure includes payment for all types of safety shoes.
---------------------------------------------------------------------------

     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 is concerned about the likelihood of an OSHA 
inspection (Ex. 1).

E. Data on PPE Usage Patterns

    The data relied on to develop this industry profile come from a 
large-scale nationwide telephone survey of 3,722 employers conducted 
for OSHA by Eastern Research Group (ERG) in 1999 (Ex. 14). The survey 
collected information on the extent to which employers currently pay 
for their employees' PPE in the general industry, construction, and 
maritime sectors. Three basic types of information were collected about 
eight categories of PPE: (1) Is the PPE used at the respondent's 
establishment?; (2) How many employees use the PPE?; and (3) Who pays 
for the PPE? The survey report describes the sample design, 
disposition, and weighting of the responses. This survey constitutes 
the best available evidence regarding PPE usage patterns.
    OSHA did not rely on this survey in formulating its industry 
profile for the proposed rule because the survey was completed after 
the proposed rule was published. However, OSHA made the survey 
available in its public docket when it was completed in June 1999, and 
provided the public an opportunity to comment on its design and 
methodology (64 FR 33810). Some stakeholders commented on the survey 
and OSHA has carefully considered those comments. OSHA also thoroughly 
reviewed the results and the methodology of the survey in preparing 
this final rule and made some adjustments to it.
    In particular, OSHA made two adjustments to the results of the 
survey to better reflect PPE usage patterns. First, the Agency realized 
that retaining the weights for numbers of employees assigned from the 
original Dun's database identifiers was resulting in misleading 
information in some cases. OSHA has therefore reweighted the survey 
responses for numbers of employees based on actual information from the 
survey (ERG, 2007). Second, in order to benchmark the data to recent 
Census figures, ERG converted the original Standard Industrial 
Classification (SIC)-based results to a North American Industrial 
Classification System (NAICS)-based industry profile. In most 
industries, the two-digit SICs mapped directly into their three-digit 
NAICS counterpart. Some industries (e.g., maritime) mapped directly at 
a greater level of detail. In other industries, it was necessary to 
consolidate a few two-digit SICs into a single three-digit NAICS 
code.\19\
---------------------------------------------------------------------------

    \19\ For example, SICs 75 (Auto Repair) and 76 (Miscellaneous 
Repair Services) were consolidated into NAICS 811, Repair and 
Maintenance.
---------------------------------------------------------------------------

    Table XV-1 shows OSHA's estimate, based on the survey, of the 
extent of PPE use in the non-State Plan State workplaces covered by the 
rule. A total of 24.9 million employees are estimated to wear one or 
more kinds of PPE in workplaces within OSHA non-State Plan States. Non-
prescription safety glasses are worn by approximately 11.3 million 
employees, while 9.2 million employees wear gloves for abrasion 
protection, 6.5 million wear safety goggles, 5.8 million wear gloves 
for chemical protection, and 5.7 million wear hardhats. Industries with 
the largest number of PPE-wearing employees include administrative and 
support services (NAICS 561), with 1.9 million such employees; 
specialty trade contractors (NAICS 238), with 1.8 million such 
employees; and professional, scientific and technical services (NAICS 
541), with 1.7 million employees. There are also four other industries 
with more than one million PPE-wearing employees each: wholesale 
merchants--durable goods (NAICS 423), ambulatory health care services 
(NAICS 621), hospitals (NAICS 622), and food services and drinking 
places (NAICS 722). In many cases, much of the PPE needed is 
concentrated in particular items, such as gloves.
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BILLING CODE 4510-26-C

[[Page 64396]]

    Table XV-2 lists the rate of employer payment for various PPE item 
categories, as indicated in OSHA's 1999 survey. For nearly all 
industries, payment rates are very high--in excess of 90 percent. The 
largest exception to this pattern is marine cargo handling (NAICS 
48832), averaging 78 percent for all items covered by this rulemaking. 
For most PPE items, rates of employer payment are very high--ranging 
between 96 percent for welding protective gear to almost 99 percent for 
eye and face protection. The primary exception to this pattern is foot 
protection (including metatarsal protection and chemical protective 
footwear, but not safety-toe shoes), for which the employer payment 
rate (including some sharing) is between 50 percent and 55 percent 
.\20\ For all items except footwear, employers pay an average of 96.5 
percent of the cost. For the items covered by this final rule, 
including metatarsal guards, weighted by the total societal cost (both 
the employee and employer share) of the various items, employers are 
currently paying approximately 95 percent of the costs of PPE.
---------------------------------------------------------------------------

    \20\ Most items are either paid for by the employer or employee. 
However, some establishments, particularly for footwear, have 
established a variety of shared payment systems. In these systems, 
employers typically pay approximately 50 percent of the shared cost.
---------------------------------------------------------------------------

BILLING CODE 4510-26-P

[[Page 64397]]

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[[Page 64398]]


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BILLING CODE 4510-26-C

[[Page 64399]]

    A few comments (Ex. 12: 173, 189) suggested that OSHA should 
compare survey response rates to make sure there is no bias. It was 
suggested that given that employers were aware OSHA was conducting a 
survey of employer payment for PPE, they tried to avoid participating 
in the survey, despite the assurance of confidentiality. It was further 
asserted that ``a substantial percentage of the `not available' 
category consists of employers who, if contacted, would have explicitly 
refused to participate'' (Ex. 12: 173, 189). Presumably, these 
employers would avoid participation or refuse to participate because 
they do not currently pay for their employee's PPE. This, in turn, 
could have inflated the survey's findings of the percentage of 
employers paying for PPE.
    OSHA disagrees with these comments and believes that survey bias 
did not have a significant impact on the data used. First, most of the 
establishments listed as ``non-completes'' were not refusals.\21\ Of 
the 53 percent of non-completed phone calls, 37.5 percent were not 
available; only 14.9 percent refused to participate. Many simply could 
not be reached given the time allotted for the survey. As described by 
ERG (Ex. 14, pp. 66-67):

    \21\ The ``non-completes'' were divided primarily between 
``refusals'' and ``not available''. ``Refusal'' is a term of art 
with regard to surveys which denotes respondents who tell the 
questioner explicitly that they do not wish to participate in the 
survey. ``Not available'' describes the group of those who could not 
be reached; most ``non-completes'' were ``not available'', as 
opposed to ``refusals''.
---------------------------------------------------------------------------

    [a]mong the 2,963 not-available respondents, 1,862 (62.8 
percent) were called fewer than six times. This group of potential 
respondents was drawn almost entirely as part of the supplemental 
sample, and, as noted, interviewers stopped calling them when simple 
targets were achieved near the end of the survey. For stratum-one, 
not-available respondents, fully 68 percent (1,407 out of 2,065) 
were part of this supplemental sample group that was called fewer 
than six times. If calling had continued so that each of these 
numbers had been called at least six times, the response rate would 
have been significantly higher. Doing so, however, would have 
resulted in oversampling the stratum one respondents. The response 
rate for stratum-one establishments in the primary sample was 52.6 
percent; by comparison, the response rate for stratum-one 
establishments in the entire sample was 34.7 percent.\22\
---------------------------------------------------------------------------

    \22\ As discussed in the ERG report [Ex. 14], the survey 
targeted three employment size establishment strata, Stratum 1 (1-19 
employees), Stratum 2 (20-499 employees), and Stratum 3 (500 or more 
employees), to ensure that each size group was adequately 
represented in the sample.
---------------------------------------------------------------------------

    Comments speculating that employers were attempting to avoid 
mentioning that they do not pay for PPE and thus did not respond (Ex. 
12: 173, 189) also suggested that the survey was more likely to be 
avoided by large employers:

    Knowledgeable employers, especially large employers who employ 
the bulk of the workforce, are aware of OSHA's demands that 
employers should purchase personal-PE * * *. Accordingly, employers 
who do not pay for personal-PE would be less likely to respond to a 
survey about payment for personal-PE for fear of adverse action by 
OSHA. This fear is the most obvious potential bias to the survey, 
yet ERG made no attempt to test it.

    In fact, the survey results showed just the opposite pattern. 
Larger employers (strata 2 and 3) generally showed higher rates of 
response to the survey than smaller employers (stratum 1) (61.7 percent 
and 58 percent for strata 2 and 3, as opposed to 34.7 percent complete 
responses for stratum 1) (Ex. 14, Table 13). This stands in stark 
contrast with the refusal rate for the survey, which was fairly 
constant between 14.6 and 15.5 percent across the three strata. The 
lower response rate for stratum 1 employers was entirely due to the 
``not available'' segment. Smaller employers are less likely to 
maintain a daytime office staff, thus making it more difficult to reach 
them to conduct a survey. This may be particularly true for the 
construction industry, which accounted for nearly half of the total 
called sample; fully one-third of the entire called sample were 
construction employers with fewer than 20 employees (Ex. 14, p. 66, 
Table 12). In short, the pattern of nonreponse is consistent with a 
simple inability to reach people on the phone, not a refusal to 
participate for fear of an adverse action from OSHA.
    Second, the response rate is not unusually low for surveys 
conducted in the last decade. It is well documented that the public at 
large, and probably employers in particular, are suffering from an 
element of ``survey fatigue'', given the large number of survey 
requests over the phone and on the Internet--people are simply less 
likely to agree to do any particular survey, unless there is direct 
payoff. In addition, individuals and employers are more likely to 
``hide'' behind voice mail and answering machines than they were a few 
decades ago (Curtain, et al, 2005). Thus, it would be improper to 
assume that the failure to participate represents a response to this 
particular survey.
    Third, an analysis of the response rate of small establishments in 
the survey suggests that many of the very small establishments OSHA did 
not reach simply were not under OSHA jurisdiction by virtue of being 
self-employed:

    [t]he average size of not-available establishments, as reported 
by D&B, was compared to that of establishments that completed the 
survey. For stratum-one respondents, the average D&B-reported 
employment size of not-available establishments was 3.9, compared to 
5.6 for those who completed the survey. The relatively small size of 
the not-available establishments, however, is misleading because 
respondents for some of these (especially those for whom D&B 
reported a single employee) would have indicated, if they had been 
reached, that they were self-employed; their establishments, 
therefore, would have been judged out-of-scope. Among successfully 
contacted respondents with five or fewer employees (as reported by 
D&B), 56.3 percent reported they were self-employed. If the not-
available respondents in stratum one were as likely to be self-
employed as those successfully contacted, the average reported 
employment, adjusted for the projected number of screen-outs at each 
employment level, would be 5.3. This is very close to the average 
employment for stratum-one respondents who completed the survey (Ex. 
14, pp. 67-69).

    A potential source of bias not discussed in comments was the 
possibility that the nonresponders skewed the sample in favor of 
employers who used PPE (as opposed to those employers who paid for 
PPE). It may be that a disproportionate percentage of people who either 
declined to be interviewed directly, or simply did not return phone 
calls did so because they considered the survey inapplicable to their 
workplace because they do not use PPE. In that case, the sample ended 
up with a disproportionate number of PPE users.
    In any case, the estimated number of PPE-using establishments 
approximately doubled between the analysis in the proposed rule and the 
analysis here, after incorporating the results of the 1999 survey. In 
fact, the estimated costs in this final analysis are higher than they 
were for the proposed rule in large part due to significantly greater 
reported use of PPE in certain items than indicated in the previous 
OSHA telephone survey on PPE in 1989. For example, the proposed rule, 
based on the 1989 survey data found 10.6 million employees using 
chemical and non-chemically protective gloves (64 FR 15417). The 1999 
survey found a combined total approximately 50 percent higher. Much of 
this increase may have been related to the effectiveness of the 1994 
PPE rulemaking at increasing the use of the PPE. At the same time, 
employers may not have bothered to participate in the survey because 
they simply did not use PPE, thus skewing upward the numbers of 
employers using PPE. OSHA has no specific information that this 
occurred;

[[Page 64400]]

if it did, however, then the cost to employers (and society) would be 
less than estimated in this analysis. The Agency does not believe the 
costs are overestimated in this regard, but acknowledges that there are 
several different potential, and at least partially offsetting, sources 
of bias in the survey results.
    OSHA recognizes that the existence of non-responses is a source of 
uncertainty with regard to the costs and benefits of the standard. The 
Agency has performed a sensitivity analysis to probe the effects of 
underestimating the extent to which employees currently pay for PPE.
    Finally, it should be noted that absent vastly greater resources 
and a substantially greater level of intrusion on employers, it would 
be impossible, even on a subsample of the survey responders, to verify 
whether or not the behavior of non-responders is significantly 
different than responders. Given that many employers could not be 
reached by phone, it ultimately might be necessary to send someone in 
person to interview the non-responders. OSHA is limited in its 
resources and would be unable to perform this type of analysis. On 
balance, OSHA is confident that the results of this survey represent 
the best available evidence on the profile of payment patterns for PPE 
in industry.

F. Technological Feasibility

    This rule does not change any PPE requirements, but affects only 
the issue of who pays for PPE required by OSHA standards. These PPE 
requirements have 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 rule thus raises no issues of 
technological feasibility.

G. Benefits of the Final Rule

    OSHA concludes in this final rule 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. (See the Legal Authority 
section for OSHA's analysis of this issue.) When employees are required 
to pay for their own PPE, they are likely to minimize PPE costs and 
thus fail to purchase proper personal protective equipment. Further 
down the wage scale, these problems can be expected to worsen, and 
employees will be less likely to purchase adequate PPE and replace it 
when necessary, and are more likely to make cosmetic repairs, hide 
defects, or purchase used PPE aged beyond its service life.
    Thus, at least two 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 that is worn is 
inadequate. The consequences of these failures are the same: Employees 
are exposed to chemical, physical, or safety hazards in the workplace, 
which, in turn, result in injuries, illnesses, and death.
    In the proposed rule, OSHA estimated the quantitative differences 
in the misuse or nonuse of PPE when employers pay for PPE versus when 
employees pay for PPE. OSHA preliminarily determined that the rate of 
nonuse or misuse of PPE would be approximately 40 percent for employee 
purchased PPE verses 15 to 20 percent for employer purchased PPE. This 
quantitative estimate was provided by one member of OSHA's expert 
panel, but was 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 
typically not fully provided, in some cases falling short by a wide 
margin. While commenters disagreed on whether the underlying premise 
behind employer payment for PPE was correct, there were no alternative 
point estimates provided (other than stating there was no difference 
between the two) to the aforementioned estimates. Thus, in this final 
rule, OSHA is continuing to use the point estimates given in the 
proposal as a basis for the benefits in the final rule. (However, as 
explained below, OSHA has also conducted a sensitivity analysis to 
evaluate concerns by commenters that OSHA's benefits estimate in the 
proposal was too high.)
1. Benefits From Injuries Prevented
    To estimate the benefits of the final rule OSHA calculated the 
total number of injuries prevented annually by requiring employers to 
pay for PPE by body part. OSHA used the point estimates above and the 
steps which are illustrated in Table XV-3.
    OSHA determined the number of injuries judged to be preventable by 
multiplying the total number of injuries \23\ by body part (derived 
from 2005 lost work day data and shown in column A) \24\ by the 
preventability factors OSHA developed in 1994 for the types of PPE 
examined (column B) (59 FR 16352).\25\ In the 1994 analysis, most 
injuries were not considered preventable by PPE. For example, sprains 
and strains (nature) and injuries caused by overexertion 
(circumstance), were not considered to be preventable by PPE. On the 
whole, approximately one-third of injuries in general industry were 
considered preventable with PPE. However, within this group, it was 
apparent that PPE could be particularly effective in protecting certain 
body parts (e.g., 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). These estimates were based on a careful 
review of the descriptions of the accidents. Over 90 percent of these 
injuries were incurred by production employees in the subset of high-
hazard industries selected for study in the PPE survey. This analysis 
did not cover the construction sector. OSHA assumes that the same 
preventability factors by body part would apply in construction as in 
the general industry and maritime sectors (see column B). 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 
of the 1994 rulemaking (Docket S060, Ex. 56).
---------------------------------------------------------------------------

    \23\ This analysis does not examine the impact of the rule on 
occupational illnesses, such as contact dermatitis prevented by 
chemically protective PPE, but OSHA is confident the rule will 
produce additional benefits not accounted for here.
    \24\ OSHA extrapolated total injuries by body part from the 
number of detailed lost workday cases with days away work [BLS, 
2006b] by multiplying by the overall ratio of total recordable cases 
[BLS, 2006a] to cases with days away from work. Body parts not 
included in this analysis: Trunk (e.g., back & shoulder); wrist and 
other upper extremities except hand and finger; knee and other lower 
extremities except foot and toe; body systems, multiple body parts; 
and ``other body parts''. Together these excluded cases account for 
about 75% of LWD injuries.
    \25\ To calculate the preventability factors, OSHA reviewed 
1,170 OSHA Form 200s describing almost 64,000 injuries. 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.
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[[Page 64401]]

[GRAPHIC] [TIFF OMITTED] TR15NO07.023

BILLING CODE 4510-26-C
    Column C shows the number of preventable injuries based on the 1994 
preventability factors and the 2005 data on total injuries. OSHA then 
reduced the numbers shown in column C by the percentage of employees in 
State Plan States where employer-payment requirements are already in 
place. (These reduction factors are shown in column D.) The resulting 
totals of preventable injuries, which includes both employee or 
employer paid PPE, are shown in Column E.
    Next OSHA estimated the percentage of PPE-related injuries where 
employees paid for their own PPE. OSHA estimates that if employees are 
required to pay for their own PPE, this equipment will be lacking or 
inadequate 40 percent of the time, while if employers pay for PPE,

[[Page 64402]]

the equipment will be lacking or inadequate 17.5 percent of the time. 
Using these parameters, OSHA estimates that employees who pay for their 
own PPE are 2.3 times (0.4 divided by 0.175) as likely as employees 
whose PPE is paid for by their employers to suffer an injury that would 
otherwise be preventable by PPE use.
    The number of such preventable injuries, however, depends on the 
percentage of employees that currently pay for their own PPE. The 
larger this percentage is, the greater of number of injuries are 
potentially preventable. Percentages of preventable injuries among 
employees paying for their own PPE were estimated by multiplying the 
number of employees paying for their own PPE by 0.4 and dividing this 
amount by the sum of the product of the number of employees paying for 
their own PPE and 0.4 and the product of the number of employees with 
employer-paid PPE and 0.175. The numerator of this ratio is the number 
of employees required to pay for their own PPE whose equipment will be 
lacking or inadequate, while the denominator is the total number of 
employees (both employee- and employer-paid PPE users) whose equipment 
will be lacking or inadequate. These percentages are shown in column F. 
Assuming injuries occur in proportion among employers, applying the 
resulting percentages to column E yields the total number of PPE 
related injuries where the employee is paying for PPE (shown in column 
G).
    Once the number of preventable 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. Requiring employer payment 
will reduce the injury rate to the level currently suffered by 
employees with employer-paid equipment. As outlined above, employees 
paying for their own equipment are 2.3 times (0.4/0.175) as likely to 
be injured as those with employer-paid equipment. The total number of 
injuries prevented by switching to employer payment equals:  
of PPE-related injuries among the employee-paying group multiplied by
[GRAPHIC] [TIFF OMITTED] TR15NO07.015

In terms of the specific numbers, this percentage reduction is 
calculated as 1-((0.175/0.4) , or 1-0.4375, or 56.3 percent, as shown 
in column H. Reducing the number of injuries in the employee-paying 
group (column G) by 56.3 percent results in the total number of 
injuries prevented by this rulemaking, as shown in column I.
    As indicated in Table XV-3, this analysis indicates that the final 
rule would avert approximately 21,798 injuries annually.\26\ OSHA 
provides a sensitivity analysis of this below, to reflect uncertainties 
in the strength of the employer payment effect.
---------------------------------------------------------------------------

    \26\ Within the 17,025 injuries estimated to be prevented in 
general industry and maritime, the Agency estimates 214 will be in 
maritime, the remainder in general industry.
---------------------------------------------------------------------------

    While a number of commenters had concerns about the rule, there was 
general agreement on the value of PPE in preventing injuries (see, 
e.g., Exs. 12: 2, 4, 6, 9, 10, 11, 13, 15, 20, 21, 32, 58, 66, 79, 100, 
101, 105, 110, 113, 117, 130, 134, 149, 184, 190, 210, 218, 230, 233, 
247, 248). One commenter questioned the underlying basis for OSHA's 
estimates in part because their experience has been that relatively few 
injuries are actually preventable by PPE.

[w]e have approximately 50 accidents per year. I read every one of 
them. I would say in a given year there may be at most one or two 
accidents where the personal protective equipment was a factor in 
preventing or minimizing the injury. Remember, that is the barrier. 
That is the last resort is the personal protective equipment. As we 
all know, there should be other steps taken to prevent an injury 
before it gets to that point (Tr. 146).

    OSHA disagrees with this commenter to the extent the commenter is 
suggesting that employer payment for PPE will not help prevent 
injuries. First, this represents one company's experience, which is not 
generalizable to the economy as a whole. OSHA's analysis of injuries 
allows for the fact that many injuries would not be preventable by PPE; 
this company may have an unusually large number of such cases. The 
commenter suggests, correctly, that engineering controls are the 
logical first line of defense against hazards. The company may have an 
excellent program in this regard. Second, the comment refers to cases 
where PPE is being worn and prevented accidents; it says nothing about 
any cases where PPE was not being worn and injuries resulted. A finding 
that suggests that PPE prevents only a few injuries is dramatically at 
odds with most of the rulemaking record both in this rulemaking and its 
predecessor in 1994. In both cases PPE was found to be of considerable 
value in reducing injuries.
    Finally, it is worth noting the Agency is not claiming a dramatic 
percentage reduction in total injuries as a result of the rule, in part 
because most equipment is already paid for by most employers. A 
reduction of 1 or 2 cases out of 50 represents a relatively small 
number within one business unit, but extrapolated across the economy as 
a whole represents a large number of injuries prevented, resulting in a 
substantial net benefit for the nation as a whole.
2. Benefits From Prevented Fatalities
    Although the primary benefits from this rule derive from the non-
fatal injuries and associated costs that will be averted by requiring 
employers to assume the full costs of the covered types of PPE, some 
benefits are associated with the preventability of fatal injuries. 
Although most injuries preventable by appropriate PPE would not 
otherwise result in fatalities, certain fatal head injuries, 
particularly those classified as ``struck by'' or ``struck against'' 
injuries, would be prevented by PPE (i.e., hardhats). Recent data on 
occupational fatalities collected by the Bureau of Labor Statistics 
show that a yearly average of 112 such fatalities occurred in general 
industry and maritime, and 43 in construction during the period 2003 
through 2005 (BLS, CFOI, 2004).
    OSHA estimated the number of fatalities likely to be prevented by 
the rule by first considering the percentage of ``struck by'' and 
``struck against'' fatalities that would be prevented if proper head 
PPE had been used. Many types (or ``events'') of fatal head injuries 
that would not be prevented by hardhats, such as those resulting from 
falls, some explosions, and most transportation-related accidents, have 
not been included in this analysis. In contrast, PPE should be 
relatively effective in preventing fatal ``struck by'' and ``struck 
against'' head injuries. Additional fatalities that would not be 
prevented include crushing accidents (force exceeds the protection of 
the head gear) and instances where the hazard could not be anticipated 
and the victim

[[Page 64403]]

could not reasonably be judged to be at risk and required to use PPE 
(passersby, for example.) For this analysis, OSHA estimates that 75 
percent of fatal ``struck by'' and ``struck against'' injuries would 
otherwise be prevented by proper use of head protection.
    Applying the 75 percent estimate described above to the total 
number of annual fatalities from the BLS data (112 in general industry 
and maritime, and 43 in construction) results in an estimated 84 
fatalities in general industry and maritime and 32 fatalities in 
construction that would be preventable by wearing hardhats if all the 
fatalities occurred in industries within OSHA jurisdiction. However, 
approximately 59.1 percent of these preventable fatalities are 
estimated to occur in non State-Plan States.27 28 
Accordingly, the actual number of fatalities preventable by this rule 
is approximately 50 in general industry and maritime, and 19 in 
construction. In addition, only a subset of these preventable 
fatalities would be affected by switching payment systems, i.e. the 
subset where employees are currently paying for their own PPE. This is 
because the number of preventable fatalities affected by this rule 
depends on the percentage of employees that currently pay for their own 
PPE. The larger this percentage is, the greater the number of 
fatalities that are potentially preventable.
---------------------------------------------------------------------------

    \27-28\ As indicated in Table XV-3, Census Bureau [Census, 
2005a] data indicate non State-Plan States account for 59.1% of 
private sector employment.
---------------------------------------------------------------------------

    Data from OSHA's PPE payment survey suggest that about 1.2 percent 
of general industry and maritime employees and 4.1 percent of 
construction employees pay for their own head PPE. Combining these 
percentages with the point estimates for PPE nonuse/misuse discussed 
above (40 percent nonuse/misuse when employees pay for PPE versus 17.5 
percent nonuse/misuse when employers pay for PPE), OSHA calculated the 
ratio of employee paid-PPE-related fatalities to all PPE related 
fatalities (i.e., the sum of the employee- and employer-paid PPE 
fatalities).
[GRAPHIC] [TIFF OMITTED] TR15NO07.016

Using the same methodology used for non-fatal injuries, the ratio for 
general industry is equal to (0.40*0.012)/(0.40*0.012 + 0.175*0.988) = 
2.8 percent. For construction the ratio is equal to (0.40*0.041)/
(0.40*0.041 + 0.175*0.959) = 8.9 percent.
    In short, OSHA estimates that employees paying for their own PPE 
suffer 2.8 percent (1.4 fatalities annually) of the fatal ``struck by'' 
and ``stuck against'' head injuries in general industry and 8.9 percent 
(1.7 fatalities annually) of the fatal ``struck by'' and ``stuck 
against'' head injuries in construction. However, it is not the case 
that all of the employee-paying preventable fatalities (1.4 and 1.7 in 
general industry and construction respectively) will be prevented by 
switching payment systems because there is still a 17.5 percent nonuse/
misuse rate among the employer-paying group. OSHA's estimate that 
requiring employer payment will reduce the rate of misuse or nonuse of 
PPE from 40 to 17.5 percent implies a resultant 56.3 percent reduction 
((0.4-0.175)/0.40) in fatal head injuries among employees who pay for 
their own PPE. Thus OSHA estimates that 0.8 fatal head injuries (0.563 
times 1.4) in general industry and 0.9 fatal head injuries (0.563 times 
1.7) in construction will be prevented annually by this rule.
    The Agency also believes that the final rule will achieve 
substantial benefits in the area of fall protection, particularly in 
construction. The rule will prevent a number of fatalities and severe 
injuries that are now occurring either because employee-provided PPE 
offers inadequate protection or because the employee arrives on site 
without the necessary PPE. For example, OSHA estimated in the 
Regulatory Impact Analysis for 29 CFR Part 1926 Subpart M that fall 
protection systems would prevent nearly 80 fatalities and 26,600 lost 
workday-injuries annually. To the extent that employers supply 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 prevent 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.
3. Uncertainties
    As outlined elsewhere in this analysis, benefits associated with 
the rule are subject to uncertainty with respect to the number and 
types of accidents that will be avoided or mitigated by the use of PPE 
and cost and benefits estimates are further subject to uncertainty due 
to the survey's non-response levels. Further, this analysis assumes 
that the effect of the rule will be limited to situations where 
employees are now required to pay for their own PPE. This, however, 
while a simplifying assumption, may not be wholly accurate. As 
indicated in the Legal Authority section, there is evidence that 
employer payment for PPE is important to send a signal to employees on 
the importance of wearing PPE. The record is also clear that certain 
sectors, such as construction, have relatively high rates of employee 
turnover (BLS, 2004), and even where they are not so high, they do not 
remain static. If the rule has the effect of engendering a greater 
appreciation of the importance of wearing PPE, then this effect would 
logically extend into workplaces where employers pay for the equipment 
currently, through employee turnover as well as a general shift in 
norms of behavior in the industry. The analysis currently assumes that 
employees will fail to wear PPE 15-20 percent of the time even when the 
employer pays for PPE. Given that employers pay for most PPE items most 
of the time currently (typically greater than 95 percent of the time), 
if this percentage were to fall even a small amount as a result of this 
rulemaking, the benefits would be substantially greater than assumed in 
this analysis.
4. Willingness To Pay for Injuries and Fatalities Avoided
    OSHA also performed an analysis of the value of injuries and 
fatalities avoided based on a willingness to pay approach. This 
approach employs the theory of compensating differentials in the labor 
market. A number of academic studies have drawn a correlation between 
higher risk on the job and higher wages, suggesting that employees 
demand monetary compensation in return for a greater risk of injury or 
fatality. OSHA has used this approach

[[Page 64404]]

in many recent proposed and final rules (See, e.g., 71 FR 10099, 70 FR 
34822).
    In performing its willingness to pay analysis, OSHA uses an 
estimate of $50,000 per lost workday-injury avoided, based on two 
studies: Viscusi, 1993, and Viscusi & Aldy, 2003. In his 1993 paper 
(Viscusi, 1993, p. 1935), Viscusi reviewed the available literature and 
found the value of lost workday injuries to be: ``[i]n the area of 
$50,000, or at the high end of the range of estimates for the implicit 
value of injuries overall.'' His 2003 paper with Aldy broadly 
reaffirmed this, finding the literature to estimate the value in the 
$20,000-$70,000 range. While the literature covered many types of 
injuries, they focused primarily, particularly for many of the higher 
valuations, on lost workday injuries. The Agency has conservatively 
chosen to apply this value to only cases resulting in days away from 
work, even though there would be additional value attached to the 
larger class of injuries, especially cases resulting in restricted 
work. As shown in Table XV-4, the Agency estimates the value of 
injuries prevented using this approach to be $337 million per year.
    By this methodology, a single fatality avoided is valued at $7 
million [Viscusi 2003, p. 63]. As explained above, OSHA estimates that 
1.7 fatalities may be prevented each year by this rule. Accordingly, 
this brings total the total monetized value of benefits to $349 
million.
    An alternate approach for valuing injuries is the direct cost 
approach, which OSHA used in the analysis for the proposal. A full 
discussion of this estimate is provided in an Appendix at the end of 
the Final Economic Analysis. Using a direct cost approach to monetize 
benefits for injuries avoided, and a willingness to pay approach to 
monetize fatalities avoided, OSHA estimates total benefits to be $228.3 
million (See Table XV-14).
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    H. Costs of Compliance to Employers
    OSHA also used the survey results to estimate the costs to 
employers of compliance with the final rule. Based on the survey, OSHA 
estimated, by PPE type, the percentage of PPE users in non-State Plan 
States whose employers bear the full PPE costs and the percentage of 
PPE users in non-State Plan States whose employers pay some share of 
the PPE costs. The remaining employees are those who now pay for their 
own PPE. Under the final rule, employers will have to assume the PPE 
costs for these employees and, in addition, make up the share of PPE 
costs currently borne by employees who pay some portion of the 
equipment expense.
    OSHA also determined unit cost estimates for PPE, based in part on 
assumptions used in the Preliminary Economic Analysis for the proposed 
rule (64 FR 15425), updated according to current price data obtained 
from safety equipment vendors. The unit costs represent annualized 
equipment costs, based on the prices and the estimated lifetimes of the 
PPE items, and are as follows:
     Based on prices from a current safety equipment catalog, 
hardhats costing $8.20, non-prescription safety glasses costing $6.20, 
and face shields costing $14.90 are all assumed to a have a useful life 
of one year.
     Chemical splash goggles costing $6.20 and safety goggles 
costing $4.65 are assumed to be replaced every six months with 
annualized costs of $13.05 and $9.79, respectively.
     Gloves for abrasion protection costing $8.30 are assumed 
to be replaced four times a year resulting in an annualized cost of 
$34.64 (Lab Safety, 2007).
     Welding helmets were assumed to have a life expectancy of 
2 years and to cost $40.00; welding goggles were assumed to have a life 
expectancy of 1 year and to cost $13.62 (these assumptions yield a 
combined annualized welding unit cost of $36.69). According to OSHA's 
expert panel, welders need both helmets and goggles at different times 
of the year.
     Fall protection (body harness or belt, and lanyard) is 
assumed to have a life expectancy of 2 years, and to cost $93.90 
(harnesses), $45.70 (belt), and $51.10 (lanyards), respectively, 
yielding a combined annualized fall protection unit cost of $80.20.
     Reusable chemical protective clothing is assumed to be 
replaced every 6 months and to cost $41.30, while chemical protective 
gloves costing $3.50 are assumed to be replaced every 10 working days 
(20 times a year), based on prices in the safety equipment catalog (Lab 
Safety, 2007).
     Paragraph (h)(3) of the revised rule requires employers to 
pay only for the cost of metatarsal guards, as opposed to the entire 
footwear item. The annualized cost of external metatarsal guards, 
assuming replacement every 2 years, is $15.49, based on a unit cost of 
$28 (Lab Safety Supply, 2007, Omark Safety Online, 2007, Working 
Person's Store, 2007, Grainger, 2007, Alpenco, 2007).
    To derive the incremental cost to employers of compliance with the 
final rule, for each type of PPE, OSHA (a) multiplied the unit PPE cost 
by the number of employees in non-State Plan States who now pay for 
their equipment and (b) added to this, the unit PPE cost multiplied by 
1 minus the percentage share of cost now paid by employers who share 
costs, multiplied by the number of employees in non-State Plan States 
who now pay some portion of the cost of their PPE.
    Costs were adjusted for additional PPE expenditures resulting from 
employee turnover, based on turnover estimates prepared by the Bureau 
of Labor Statistics from their Job Openings and Labor Turnover Survey 
(JOLTS) (BLS, 2004). Two factors determine the impact of turnover on 
compliance costs. First, if the protective equipment is transferable to 
other employees and can be reused, turnover does not affect compliance 
costs. In this case, departing employees' equipment can be passed on to 
new employees. Second, for non-transferable PPE, the lifetime of the 
equipment determines the number of additional purchases required for 
new employees.\29\ For example, turnover has less impact for PPE types 
with short lifetimes, because such equipment is regularly replaced even 
in the absence of employee turnover. To account for this, OSHA used a 
factor that was equal to the PPE lifetime (in fractions of a year) for 
PPE types with lifetimes less than one year and equal to 1 for PPE with 
lifetimes of one year or greater. For example, suppose that the 
turnover rate is 10 percent and the lifetime of the equipment is six 
months (0.5 years). If the hiring of new employees is spread out evenly 
over the year, half the new employees can be provided with equipment 
that would have been replaced even without employee turnover. In this 
case, the additional PPE required as a result of turnover would be 5 
percent (10 percent times 0.5).
---------------------------------------------------------------------------

    \29\ This analysis assumes the following items are transferable: 
chemical splash goggles, faceshields, hardhats, metatarsal 
protection, splash aprons, chemical protective clothing, body 
harnesses, body belts, lanyards, welding helmets, welding goggles 
and ear muffs. Non-prescription safety glasses, safety goggles, 
chemical protective footwear, gloves for abrasive and chemical 
protection, protective welding clothing and ear inserts were assumed 
to be non-transferable.
---------------------------------------------------------------------------

    Table XV-5 presents compliance costs of the final rule to 
employers, by NAICS code. Table XV-6 summarizes the cost estimates by 
general category of PPE. Total compliance costs are estimated to be 
$85.7 million for all establishments. The cost of gloves for abrasion 
protection is estimated to be $27.8 million, or 32.5 percent of total 
costs. Chemical protective footwear is estimated to be $17.6 million, 
or 20.5 percent of total costs. Metatarsal guards for footwear are 
estimated to be $13.3 million, and gloves for chemical protection $10.2 
million, at 15.5 percent and 11.8 percent of total costs respectively.
    Several commenters stated that the cost analysis was unrealistic in 
assessing the costs in their industries. Representatives from the 
drilling industry (Ex. 12: 91) stated that the analysis failed to take 
into consideration the high rate of cotton glove usage in their 
industry, as they reported employees going through approximately one 
pair a day. OSHA questions whether the gloves described by the 
commenter constitute PPE; it is not clear for what safety or health 
purpose the gloves are being worn. If the gloves are being used for the 
purposes of abrasion protection, more durable and protective 
alternatives are available than cotton gloves. Regulatory analyses 
generally assume employers adopt the least-cost option, which may 
differ from the pattern of employee purchases; this applies to both the 
quantity (e.g., bulk discounts) and quality of PPE purchased. This 
analysis assumes employers will use leather or Kevlar gloves for 
protection, a costlier (per unit), but more durable form of protection.

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    In a separate but related issue, this same commenter indicated 
that, from talking with their members, they thought OSHA's survey had 
underestimated the share of PPE which employees were paying for. OSHA 
recognizes that such results are inevitable in relying upon a sample. 
There will be instances where certain costs are underestimated. 
Likewise, there will be situations where costs are overestimated. These 
will tend to offset each other so that there is no systemic bias. For 
example, based heavily on one survey response, the analysis suggests 
that employers in wholesale trade are expected to have particularly 
heavy costs for certain PPE items, notably fall protection. However, in 
OSHA's professional judgment, uses of these PPE items in this sector 
are not as high as the survey would suggest. Nonetheless, it would be 
inconsistent and potentially in error to project a final estimate of 
costs to the economy without taking into account the full pattern of 
behavior indicated by the survey.
    There may be instances where this analysis either fails to consider 
certain specialized PPE or PPE use patterns in particular industries 
that are more expensive than calculated. Alternately,

[[Page 64410]]

there will be instances where the analysis has overestimated the cost 
of PPE for various industries. However, as indicated later in this 
analysis, given the very limited costs of PPE as a percentage of 
revenue and profits, its comparatively ``level'' distribution as a per 
employee cost (i.e., costs as function of the size of employment), as 
well as the established patterns of employee payment currently for most 
types of PPE in most industries, cost estimates for particular 
industries would generally need to be off by well over an order of 
magnitude before these would begin to raise issues of economic 
feasibility.
    It should also be noted that since this analysis is accepting the 
survey results at face value, there has been no attempt to correct for 
situations where OSHA already requires payment for PPE, e.g., the 
bloodborne pathogens standard and numerous single substance standards. 
To the extent that employers are not adhering to existing requirements 
in this regard, these costs are overstated in this rulemaking.
    Finally, this analysis makes no attempt to estimate to what extent 
employees will continue to voluntarily bring their own PPE into the 
workplace. Rather, this analysis assumes employers will pay 100 percent 
of the cost of the PPE covered by this rulemaking currently paid for by 
employees. To the extent employees choose to bring their own PPE into 
the workplace after the rule is issued, costs will be overstated.

I. Economic Feasibility and RFA Certification

    A standard is economically feasible if it does not threaten massive 
dislocation to or imperil the existence of an industry. See United 
Steelworkers of America, 647 F.2d at 1265. That a standard is 
financially burdensome or threatens the survival of some companies in 
an industry is not sufficient to render it infeasible (Id. at 1265). 
The cost of compliance with an OSHA standard must be analyzed ``in 
relation to the financial health and profitability of the industry and 
the likely effect of such costs on unit consumer prices.'' (Id.) [The] 
practical question is whether the standard threatens the competitive 
stability of an industry, or whether any intra-industry or inter-
industry discrimination in the standard might wreck such stability or 
lead to undue concentration (Id.) (citing Industrial Union Dept., AFL-
CIO v. Hodgson, 499 F.2d 467 (DC Cir. 1974)). The courts have further 
observed that granting companies reasonable time to comply may enhance 
economic feasibility (Id.).
    To assess the potential economic impacts of the final rule, OSHA 
compared the anticipated costs of achieving compliance against revenues 
and profits of PPE-using establishments in non-State Plan states. Per-
establishment average costs were calculated by dividing total 
compliance costs for each industry by the number of affected 
establishments. OSHA then compared baseline financial data (from the 
U.S. Internal Revenue Service, Corporation Source Book, 2004) with 
total annualized costs of compliance to compute compliance costs as a 
percentage of revenues and profits. This impact assessment is presented 
in Table XV-7.
    This table is considered a screening analysis because it measures 
costs as a percentage of pre-tax profits and sales but does not predict 
impacts on pre-tax profits and sales. This screening analysis is used 
to determine whether the compliance costs potentially associated with 
the standard would lead to significant impacts on establishments in the 
affected industries. The actual impact of the standard on the profits 
and revenues of establishments in a given industry will depend on the 
price elasticity of demand for the services sold by establishments in 
that industry.
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    Price elasticity refers to the relationship between the price 
charged for a service and the demand for that service; that is, the 
more elastic the relationship, the less able an establishment is to 
pass the costs of compliance through to its customers in the form of a 
price increase and the more it will have to absorb the costs of 
compliance from its profits. When demand is inelastic, establishments 
can recover all the costs of compliance simply by raising the prices 
they charge for that service; under this scenario, profits are 
untouched. On the other hand, when demand is elastic, establishments 
cannot recover all the costs simply by passing the cost increase 
through in the form of a price increase; instead, they must absorb some 
of the increase from their profits. In general, ``when an industry is 
subject to a higher cost, it does not simply swallow it, it raises its 
price and reduces its output, and in this way shifts a part of the cost 
to its consumers and a part to its suppliers,'' (ADA v. Secretary of 
Labor, 984 F.2d 823, 829 (7th Cir. 1993)).
    Specifically, if demand is completely inelastic (i.e., price 
elasticity is 0), then the impact of compliance costs that amount to 1 
percent of revenues would be a 1 percent increase in the price of the 
product or service, with no decline in demand or in profits. Such a 
situation would be most likely when there are few, if any, substitutes 
for the product or service offered by the affected sector or if the 
products or services of the affected sector account only for a small 
portion of the income of its consumers. If the demand is perfectly 
elastic (i.e., the price elasticity is infinitely large), then no 
increase in price is possible, and before-tax profits would be reduced 
by an amount equal to the costs of compliance (minus any savings 
resulting from improved employee health and reduced insurance costs). 
Under this scenario, if the costs of compliance represent a large 
percentage of the sector's profits, some establishments might be forced 
to close. This scenario is highly unlikely to occur, however, because 
it can only arise when there are other goods and services that are, in 
the eye of the consumer, perfect substitutes for the goods and services 
the affected establishments produce or provide.
    A common intermediate case would be a price elasticity of one. In 
this situation, if the costs of compliance amount to 1 percent of 
revenues, then production would decline by 1 percent and prices would 
rise by 1 percent. The sector would remain in business and maintain 
approximately the same profit rate as before but would produce 1 
percent less of its services. Consumers would effectively absorb the 
costs through a combination of increased prices and reduced 
consumption; this, as the court described in ADA v. Secretary of Labor, 
is the more typical case.
    As indicated in Table XV-7, the screening analysis indicates the 
highest revenue and profit impacts are for NAICS 48832, Marine Cargo 
Handling (0.017 percent of sales and 0.56 percent of profits); NAICS 
336611, Ship Building and Repairing (0.013 percent of sales and 0.24 
percent of profits); NAICS 238, Specialty Trade Contractors (0.008 
percent of sales and .21 percent of profits); and NAICS 485, Transit 
and Ground Passenger Transportation (0.006 percent of sales and 0.3 
percent of profits). Over the entire set of affected industries, the 
average impact on sales is 0.001 percent and the average impact on 
profits is 0.03 percent.
    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 elsewhere, 
many firms already pay for PPE because it proves cost-effective. Many 
firms will find that, when benefits as well as costs are considered, 
the costs of PPE are more than offset by these benefits.
    It should be noted that these impacts could be nine times higher 
without reaching the level of 5 percent of profits or 1 percent of 
revenues in any industry. Thus, in spite of uncertainties about costs, 
this rule does not come close to a level threatening the economic 
viability of any affected industry. For all the aforementioned reasons, 
the Agency concludes the final rule is economically feasible.
    OSHA also assessed the economic impact of the rule on small firms 
within each affected industry. Impacts on two size categories of small 
firms were estimated: Firms with fewer than 500 employees, and firms 
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 NAICS-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 rule. Because the survey used the 500- and 20-employee levels, it 
is appropriate to retain these levels in the final rule. This approach 
also avoids the interpolation that would be necessary because the 
underlying industry profile data do not correspond with the NAICS-
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.
    As a conservative approach, in order to analyze the impact on firms 
with fewer than 500 employees, OSHA divided the total annual cost in 
each NAICS for establishments with fewer than 500 employees by the 
total number of firms with fewer than 500 employees in that NAICS. This 
approach tends to overstate the impact because some of the costs will 
be for establishments with fewer than 500 employees that are part of 
firms with more than 500 employees. These calculated costs per firm 
with fewer than 500 employees were then compared to average sales per 
firm with fewer than 500 employees and average pre-tax profits per firm 
with fewer than 500 employees. The same methodology was used to analyze 
the impact on firms with fewer than 20 employees.
    The results of these analyses are shown in Tables XV-8 and XV-9, 
which demonstrate that the annualized costs of compliance do not exceed 
0.035 percent of sales or 0.65 percent of profits for small firms in 
any industry, whether defined as fewer than 500 employees or as fewer 
than 20 employees. It should be noted that these impacts could be 8 
times higher without reaching the level of 5 percent of profits or 1 
percent of revenues that OSHA uses to determine if a Regulatory 
Flexibility Act (5 U.S.C. 605) Analysis (RFA) is necessary. Thus, in 
spite of uncertainties about costs, it is very unlikely that this rule 
would even rise to the level of needing more detailed analysis beyond 
this screening analysis. Based on these analyses, in accordance with 
the Regulatory Flexibility Act (5 U.S.C. 605), OSHA certifies that the 
rule will not have a significant impact on a substantial number of 
small entities.

[[Page 64414]]

    Because for most industries statistically meaningful survey data 
are available largely only at the three-digit North American Industrial 
Classification System level, OSHA has conducted this analysis of 
economic impacts primarily at the 3-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 has substantially higher costs as a percentage of sales or 
profits, the financial health of that sub-industry would not be in any 
danger.
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J. Social Costs and Social Benefits

    For the most part, the rule will simply shift the cost of 
purchasing PPE from employees to employers. However, the record 
demonstrates that employer payment will also result in more PPE used 
and improved PPE use at the workplace. This will lead to social costs 
and social benefits. For purposes of estimating the social costs, OSHA 
assumed, based largely on expert opinion as discussed above in the 
benefits analysis, that employees lack the proper PPE an average of 
17.5 percent of the time when employers pay, and 40 percent of the time 
when employees pay. The social cost represents the cost of closing the 
gap between the two numbers; the remainder of the employers' cost is 
merely an economic transfer from the employee to employer. Thus, the 
social costs of requiring employer payment would represent the 
following portion of the total cost to employers: 1-((1-0.4)/(1-
0.175)), where (1-0.4)/(1-0.175) represents the relative likelihood 
that employees are actually wearing the proper PPE. If the relative 
likelihood were 1 (the numerator and denominator equal), there would be 
no social cost. Calculated out, this becomes 1-(0.6/0.825), 1-0.727, or 
27.3 percent. As indicated in Table XV-10 this suggests that about 
$23.4 million out of the total $85.7 million estimated costs to 
employers are social costs.
    In the case of comparing social costs and social benefits, the 
magnitude of social costs and benefits are closely linked--the benefits 
of reducing the injuries are dependent upon the purchase and use of 
PPE. To assess the benefits of the final rule, OSHA estimated that PPE 
is misused or not used at all 40 percent of the time when employees pay 
and 17.5 percent of the time when employers pay. There is necessarily 
uncertainty in these estimates. Accordingly, OSHA has performed an 
analysis of the social costs and social benefits of the rule given 
different sets of assumptions, commonly referred to as a sensitivity 
analysis, in this case with respect to different rates of PPE misuse/
nonuse. The Agency found that if the difference in PPE usage patterns 
between the employee- and employer-pay groups is much smaller than 
OSHA's assumption, the social benefits are still several times larger 
than the social costs.
    If one assumed the gap between the two groups were only half of 
what was assumed in the benefits estimate based on direct cost (i.e., 
assume employees paying for their own PPE were lacking the proper PPE 
28.75 percent of the time, and employees who had the PPE paid for by 
their employer were lacking it 17.5 percent of the time, meaning a 
difference of 11.25 percent, as opposed to 22.5 percent in main 
estimate), OSHA estimates total social costs of $11.7 million and total 
social benefits of $125.3 million, for a net benefit of $113.6 million. 
If the ``employer payment effect'' were only 10 percent of the main 
benefits estimate (i.e., assume employees paying for their own PPE were 
lacking the proper PPE 19.75 percent of the time, and employees who had 
the PPE paid for by their employer were lacking it 17.5 percent of the 
time), the social costs would be only $2.3 million; the remainder of 
the cost to employers would simply be a transfer. The estimated 
benefits would be $27.6 million, for a net benefit of $25.3 
million.\30\
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    \30\ Total social benefits include fatalities prevented, which 
are valued at $7 million per fatality avoided, using the willingness 
to pay approach [Viscusi, 2003, p. 763].
---------------------------------------------------------------------------

    OSHA performed an analysis of these alternate assumptions 
incorporating the estimated value of willingness to pay for injuries 
avoided, estimated at approximately $50,000 per lost workday injury 
(Viscusi 1993, Viscusi & Aldy 2003). As shown in Table XV-11, OSHA 
estimates the net social benefits of the rule to be $334 million using 
the main benefits estimate, and $185 and $39 million using the 
alternate 50 percent and 10 percent assumptions on the ``employer 
payment effect''.
    The Agency also examined the effect of doubling the estimated share 
of PPE employees currently pay for to examine the consequences of the 
survey underestimating the employees' share of payment. Both the costs 
of the standard to employers and the social costs would double--the 
estimated social costs would increase to $47 million. The estimated 
annual benefits of the standard would increase to 37,188 injuries and 
3.4 fatalities prevented, producing an estimated social value of $609 
million, and raising the net social benefit to $562 million. Therefore, 
the Agency concludes that if the survey did underestimate the current 
employee-paying share, the net benefits of the standard would be larger 
than OSHA's primary estimate.
    As discussed previously, these sensitivity analyses of the net 
social benefits are intended to explore the implications of the 
uncertainties outlined previously in this analysis. Nonetheless, under 
any scenario, the rule will produce a high ratio of benefits to costs 
and positive net benefits; the primary uncertainty is the magnitude of 
the social costs and benefits.
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K. Direct Savings Resulting From the Reduction in Injuries Attributable 
to the Final Rule

    This section evaluates the direct savings associated with the 
injuries prevented by the final rule. It should be noted that 
occupational injuries 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. This section of the 
analysis does not attempt to place a monetary value on the pain and 
suffering experienced by employees and their families, loss of esteem, 
disruption of family life, feelings of anger and helplessness and other 
effects. However, many of these considerations go into the monetary 
calculation of the social benefits of injury reduction used in the 
social costs and benefits above (see Section J). In

[[Page 64422]]

addition, there are some purely economic costs that have not been 
captured in this analysis, such as legal costs to employees and lost 
output at home.
    Some aspects of the burden of occupational injuries 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 employee, measured by 
the value the market places on his or her time. This value is measured 
as the employee's total wage plus fringe benefits. Other costs include: 
(1) Medical expenses, (2) costs of workers' compensation insurance 
administration, and (3) indirect costs to employers (other than those 
for workers' compensation administration).
a. Lost Output
    OSHA estimates the value of lost output by starting with workers' 
compensation indemnity payments and then adding other losses associated 
with work-related injuries. The Agency follows four steps to arrive at 
a value for lost output:
    (1) Calculate PPE-related injury in terms of workers' compensation 
indemnity payments;
    (2) Add the difference between the value of these indemnity 
payments and the employee'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 1993 workers' 
compensation claim data from the Argonaut Insurance Company, updated to 
reflect current dollars using a ratio of claims value to total 
injuries, shows that the weighted average claim value of the injuries 
shown in Table XV-3 is $3,833. Based on nationwide estimates from the 
U.S. Social Security Administration, an average of 53 percent of these 
payments are paid out for indemnity, and the remaining 47 percent are 
paid out for medical costs (NASI, 2006).
b. 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 employee for the long-term effects of a 
stabilized condition. On a nationwide basis, the National Academy of 
Social Insurance (NASI) estimates that permanent disability payments 
account for 79 percent of all indemnity payments. Considering all 
payments, those cases classified as permanent partial disability 
account for 67 percent of the total, while those classified as 
permanent total disability account for 12 percent of the total. The 
remaining indemnity payments are for temporary total disability cases 
and account for 21 percent of the total (NASI, 2006).
    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 employee's before-tax income. However, 
most States place a maximum and minimum on the amount of money paid out 
to the employee, 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 employees (WCRI, 1993). From 3 to 
44 percent of the employees 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 average replacement rates as they vary significantly by 
State for a number of reasons, including policy differences, injury 
rates, employee demographics, and wage and price variations (NASI, 
2006). However, based on these data, it seems reasonable to assume 
that, on average, employees 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.\31\
---------------------------------------------------------------------------

    \31\ The use of a simple average rather than a population-
weighted average results in a lower estimate of income loss and is 
thus a more conservative approach.
---------------------------------------------------------------------------

    Based on these data and the NASI estimates of the distribution of 
payments by type, OSHA estimated after-tax income from the total 
indemnities paid for injuries preventable by the proposed rule by 
assuming payments for temporary disabilities account for 21 percent of 
all PPE-preventable indemnity payments and replace 90 percent of after-
tax income and that payments for permanent disabilities account for 79 
percent of PPE-preventable indemnity payments and replace approximately 
60 percent of after-tax income.
c. Fringe Benefits
    In addition to after-tax income loss, lost output includes the 
value of taxes that would have been paid by the injured employee and 
fringe benefits that would have been paid by the employee'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.\32\ Fringe benefits were estimated as 40.4 percent of 
before-tax income, based on the average fringe benefit data provided by 
BLS (BLS, 2005).
---------------------------------------------------------------------------

    \32\ A CBO (CBO, 2004) study estimated the current effective 
Federal tax rate, averaged over all income levels, at 21.6% (Table 
2, p. 18). To this Social Security taxes and state and local income 
taxes must be added, so that the number 30% should be a conservative 
estimate in most cases.
---------------------------------------------------------------------------

    Tables XV-12 and XV-13 apply the estimation parameters developed 
above to calculate the total value of the lost output associated with 
temporary and permanent disabilities, respectively. As shown, the total 
value of the lost output associated with potentially avoidable approved 
workers' compensation claims for temporary total disability is 
estimated at $17.3 million, and that associated with permanent 
disabilities (partial and total) at $93.9 million a

[[Page 64423]]

year. By preventing injuries that lead to disability, the PPE payment 
rule will also prevent this lost output.
BILLING CODE 4510-26-C
[GRAPHIC] [TIFF OMITTED] TR15NO07.036


[[Page 64424]]


[GRAPHIC] [TIFF OMITTED] TR15NO07.037

BILLING CODE 4510-26-C
d. Medical
    Most elements of medical costs are included in the share of 
payments paid for medical costs, estimated to be 47 percent of the cost 
of the claims. However, medical costs do not include any first-aid 
costs incurred by the employer and, in some cases, costs for 
transportation to a medical facility. It should be noted that 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 XV-
14, OSHA estimates the medical costs of injuries preventable by the 
proposed standard to be $39.2 million a year.
e. Administrative Costs
    The administrative costs of workers' compensation insurance 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 calculates the administrative costs of PPE-related injury 
claims based on the estimates of benefits and costs to employers for 
workers' compensation as provided by the National Academy of Social 
Insurance (NASI, 2006). Table XV-15 presents administrative costs as a 
percent of the value of claims, by type of insurer. Administrative 
costs for private carriers, State funds, and self-insured companies are 
estimated to be 71.8 percent, 73.5 percent, and 16.2 percent, 
respectively. To estimate the aggregate value of the administrative 
costs of insurance, these costs were weighted by the value of the 
benefit payments made by each type of insurer. The aggregate value of 
the administrative costs of workers' compensation insurance is 
estimated to be 58.1 percent of the value of claims. The total value of 
claims includes both the indemnity and medical portions of insurance 
company payments. As indicated in Table XV-14, the Agency estimates 
that the revisions to the PPE standard will save $48.5 million annually 
in administrative costs.
    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.

[[Page 64425]]

[GRAPHIC] [TIFF OMITTED] TR15NO07.038


    Table XV-15.--Derivation of Average Administrative Costs as a Percent of the Value of Claims, by Type of
                                                    Insurance
                                                  [$ millions]
----------------------------------------------------------------------------------------------------------------
                                                                                                 Ratio of
       Type of insurance             Total cost          Benefits        Administrative    administrative costs
                                                                              cost              to benefits
----------------------------------------------------------------------------------------------------------------
Private........................            $48,695            $28,346            $20,349  71.8 percent.
State..........................            $19,157            $11,044             $8,113  73.5 percent.
Self-Insured...................            $15,478            $13,321             $2,157  16.2 percent.
All Insurance..................            $83,330            $52,711            $30,619  58.1 percent.
----------------------------------------------------------------------------------------------------------------
Source: National Academy of Social Insurance, Workers Compensation: Benefits, Coverage, and Costs, 2004
  (Washington, DC, 2006).

f. 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 different 
social costs, not included elsewhere in these calculations, such as 
loss of productivity measured by sick leave to employees 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 employees, 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 employee. 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. As indicated in Table XV-14, the Agency 
estimates that the PPE payment rule will save $17.4 million annually in 
these indirect costs.
    Taken in its entirety, this final rule is estimated to save $216 
million annually by avoiding preventable injuries. See Table XV-14. 
These cost savings do not include the economic value of the loss of 
leisure time. They do not account for

[[Page 64426]]

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.

L. References

    Alpenso, 2007. www.alpenco.com. Accessed May 8, 2007 (Docket 
OSHA-S042-2006-0667).
    American Association of Railroads, 2006. North American Freight 
Railroad Statistics. November 6 (Docket OSHA-S042-2006-0667).
    Berkowitz, M., and Burton, J. Permanent Partial Disability 
Benefits In Worker Compensation. W. E. Upjohn Institute for 
Employment Research, Kalamazoo, Michigan, 1987 (Docket S777, Ex. 
1605).
    Bureau of Labor Statistics. ``Employer Costs for Employee 
Compensation Summary,'' News Release, December 9, 2005.
    Bureau of Labor Statistics, 2004. Job Openings and Labor 
Turnover Survey, 2004.
    Bureau of Labor Statistics. ``Workplace Injuries and Illnesses 
in 2005,'' News Release, October 19, 2006.
    Bureau of Labor Statistics. ``Nonfatal Occupational Injuries and 
Illnesses Requiring Days Away From Work, 2005,'' News Release, 
November 17, 2006.
    Bureau of National Affairs. Basic Patterns in Union Contracts, 
Fourteenth Edition, BNA Books, 1995 (Docket OSHA-S042-2006-0667).
    Curtin, R., Presser, S., and Singer, E., ``Changes in Telephone 
Survey Nonresponse Over the Past Quarter Century'', Public Opinion 
Quarterly, Vol. 69, No. 1, Spring 2005, pp. 87-98 (Docket OSHA-S042-
2006-0667).
    Congressional Budget Office, Effective Tax Rates Under Current 
Law, 2001-2004, 2004.
    Eastern Research Group, Patterns of PPE Provision. 1998 (Ex. 1).
    Eastern Research Group, PPE Cost Survey, 1999 (Ex. 14).
    Eastern Research Group, Revised Estimates of PPE Use and Payment 
Patterns, 2007 Business Roundtable. Improving Construction Safety 
Performance: A Construction Industry Cost Effectiveness Project. 
Report A-3, January, 1982 (Docket OSHA-S042-2006-0667).
    Grainger, 2007. www.grainger.com, Accessed May 8, 2007 Business 
Roundtable. Improving Construction Safety Performance: A 
Construction Industry Cost Effectiveness Project. Report A-3, 
January, 1982 (Docket OSHA-S042-2006-0667).
    Hinze, J. and Applegate, L.L. ``Costs of Construction 
Injuries'', Journal of Construction Engineering and Management, 
117(3):537-550, 1991 (Docket S777, Ex. 26-1589).
    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 (Docket S777, 
Ex. 26-1586).
    Lab Safety Supply, http://www.labsafety.com. Accessed May 1, 
2007 Business Roundtable. Improving Construction Safety Performance: 
A Construction Industry Cost Effectiveness Project. Report A-3, 
January, 1982 (Docket OSHA-S042-2006-0667).
    National Academy of Social Insurance, Workers Compensation: 
Benefits Coverage, and Costs, 2004 (Washington, DC, 2006) Business 
Roundtable. Improving Construction Safety Performance: A 
Construction Industry Cost Effectiveness Project. Report A-3, 
January, 1982 (Docket OSHA-S042-2006-0667).
    Occupational Safety and Health Administration, Office of 
Regulatory Analysis, Background Document to the Regulatory Impact 
and Regulatory Flexibility Assessment for the PPE Standard, 1994, 
(Docket S060, Ex. 56).
    Office of Technology Assessment, Preventing Illness and Injury 
in the Workplace, Volume 2-Part B: Working Papers, 1994 (Docket 
H049, Ex. 189).
    Omark Safety Online, 2007. www.omarksafety.com. Accessed May 8, 
2007 Business Roundtable. Improving Construction Safety Performance: 
A Construction Industry Cost Effectiveness Project. Report A-3, 
January, 1982 (Docket OSHA-S042-2006-0667).
    Ryscavage, Paul. ``Dynamics of Economic Well-Being: Labor Force, 
1991 to 1993'', U.S. Census Bureau, Current Population Reports, 
Household Economic Studies, P70-48, August 1995.
    U.S. Census Bureau, 2004. State and Local Employment and 
Payroll, March 2004.
    U.S. Census Bureau, 2005a. County Business Patterns, 2004.
    U.S. Census Bureau, 2005b. Statistics of U.S. Businesses 2004.
    U.S. Internal Revenue Service, Corporation Source Book, 2004. 
Accessed online at http://www.irs.gov/taxstats/bustaxstats/article/0,,id=149687,00.html, March 2007.
    U.S. Postal Service. 2006. Annual Report, 2006.
    U.S. Small Business Administration, 2004. Table of Small 
Business Size Standards Matched to the North American Industry 
Classification System, Effective July 31, 2004. Accessed on-line at 
<http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf>, March, 2007.
    U.S. Social Security Administration. Annual Statistical 
Supplement to the Social Security Bulletin. Washington, DC, 2006.
    Viscusi, K., ``The Value of Risks to Life and Health'', Journal 
of Economic Literature, Vol. 31, No. 4. (Dec., 1993), pp. 1912-1946 
(Docket OSHA-S042-2006-0667).
    Viscusi, K. and Aldy, J. ``The Value of a Statistical Life: A 
Critical Review of Market Estimates Throughout the World'', The 
Journal of Risk and Uncertainty, 2003, 27:1:5-76, 2003 (Docket OSHA-
S042-2006-0667).
    Worker Compensation Research Institute. Income Replacement in 
California. December, 1993 (Docket S777, Ex. 26-1586).
    Working Person's Store, 2007. www.workingperson.com, Accessed 
May 8, 2007 (Docket OSHA-S042-2006-0667).

XVI. Environmental Impacts

    OSHA has reviewed this rule in accordance with the National 
Environmental Policy Act (NEPA), (42 U.S.C. 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.

XVII. Federalism

    OSHA has reviewed this final rule in accordance with the Executive 
Order on Federalism (Executive Order 13132, 64 FR 43255, August 10, 
1999), which requires that federal agencies, to the extent possible, 
refrain from limiting State policy options, consult with States prior 
to taking any actions that would restrict State policy options, and 
take such actions only when there is clear constitutional authority and 
the presence of a problem of national scope. Executive Order 13132 
provides for preemption of state law only if there is a clear 
congressional intent for the Agency to do so. Any such preemption is to 
be limited to the extent possible.
    Section 18 of the OSH Act (29 U.S.C. 651 et seq.) expresses 
Congress' intent to preempt state laws where OSHA has promulgated 
occupational safety and health standards. Under the OSH Act, a state 
can avoid preemption on issues covered by federal standards only if it 
submits, and obtains federal approval of, a plan for the development of 
such standards and their enforcement (state plan state) (29 U.S.C. 
667). Occupational safety and health standards developed by such state 
plan states must, among other things, be at least as effective in 
providing safe and healthful employment and places of employment as the 
federal standards. Subject to these requirements, state plan states are 
free to develop and enforce under state law their own requirements for 
safety and health standards.
    This final rule complies with Executive Order 13132. As Congress 
has expressed a clear intent for OSHA standards to preempt state job 
safety and health rules in areas addressed by OSHA standards in states 
without OSHA-approved state plans, this rule limits state policy 
options in the same manner as all OSHA standards. In states with OSHA-
approved state plans, this action does not significantly limit state 
policy options.

XVIII. Unfunded Mandates

    This final rule has been reviewed in accordance with the Unfunded 
Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.) and 
Executive Order 12875. As discussed in the Final Economic Analysis, 
OSHA estimates that compliance with the rule will require expenditures 
of $85.7 million per year by affected employers.

[[Page 64427]]

Therefore, this rule is not a significant regulatory action within the 
meaning of Section 202 of UMRA (Pub. L. 104-4, 2 U.S.C. 1532). 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 rule does not meet the definition of a ``Federal 
intergovernmental mandate'' (Section 421(5) of UMRA) (2 U.S.C. 658).
    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 all types of PPE that will be covered by this rule. Thus, this 
rule will not have a significant impact on employers who are State and 
local governments. In sum, this rule does not impose unfunded mandates 
within the meaning of UMRA.

XIX. OMB Review Under the Paperwork Reduction Act of 1995

    The final PPE payment rule simply clarifies that employers must pay 
for PPE used to comply with OSHA standards, with a few limited 
exceptions. As such, the rule does not contain collection-of-
information (paperwork) requirements that are subject to review by the 
Office of Management and Budget (OMB) under the Paperwork Reduction Act 
of 1995 (PRA-95), 44 U.S.C. 3501 et seq., and OMB's regulations at 5 
CFR part 1320. PRA-95 defines ``collection of information'' as ``[t]he 
obtaining, causing to be obtained, soliciting, or requiring the 
disclosure to third parties or the public of facts or opinions by or 
for an agency regardless of form or format * * *.'' (44 U.S.C. 
3502(3)(A)).
    A number of commenters questioned whether they would be required to 
keep receipts to prove PPE purchases and, thus, whether the final rule 
contains paperwork requirements (See, e.g., Exs. 12: 22, 31, 36, 44, 
54, 56, 68, 72, 73, 78, 80, 95, 102, 115, 118, 127, 128, 136, 140, 157, 
158, 165, 166, 176, 186, 194, 197, 202, 208, 212, 219, 224, 226, 232, 
238, 241). In a representative comment, the NAHB asked:

    How will OSHA enforce this standard? When a compliance officer 
comes on to the jobsite and sees every employee wearing a hard hat 
and safety glasses, will he request to see a receipt from the 
employer for the purchase of the PPE? Will the employer then be 
cited if he does not have a receipt to prove that he did, in fact, 
pay for the PPE being used? (Ex. 12: 212).

    The final standard does not require employers to maintain receipts 
or any other form of paperwork involving PPE payment, and OSHA will not 
cite an employer for failure to have such paperwork. The Agency 
understands that businesses commonly keep receipts to comply with 
standard accounting codes, for tax accounting purposes, and as a 
standard good business practice. However, an employer is not required 
to do so by this final rule.
    In response to the comment from NAHB, in most instances, an OSHA 
inspector will interview employers and employees to determine if an 
employer is complying with the PPE payment rule. OSHA does not believe 
it will be difficult to ascertain whether an employer paid for a 
particular piece of PPE and employers will not need to justify their 
purchases with receipts. After publishing the final rule, OSHA will 
instruct its inspectors in the requirements of the final rule and that 
the final rule does not require employers to keep a record of receipts 
or otherwise document determinations made.

XX. State Plan Standards

    When federal OSHA promulgates a new standard or more stringent 
amendment to an existing standard, the 26 states or U.S. territories 
with their own OSHA-approved occupational safety and health plans must 
revise their standards to reflect the new standard or amendment, or 
show OSHA why there is no need for action, e.g., because an existing 
state standard covering this area is already ``at least as effective'' 
as the new federal standard or amendment (29 CFR 1953.5(a)). The state 
standard must be at least as effective as the final federal rule, must 
be applicable to both the private and public (state and local 
government employees) sectors, and must be completed within six months 
of the publication date of the final federal rule. When OSHA 
promulgates a new standard or amendment that does not impose additional 
or more stringent requirements than an existing standard, states are 
not required to revise their standards, although the Agency may 
encourage them to do so. These 26 states and territories are: Alaska, 
Arizona, California, Connecticut (plan covers only State and local 
government employees), Hawaii, Indiana, Iowa, Kentucky, Maryland, 
Michigan, Minnesota, Nevada, New Mexico, New Jersey (plan covers only 
State and local government employees), New York (plan covers only State 
and local government employees), North Carolina, Oregon, Puerto Rico, 
South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands 
(plan covers only Territorial and local government employees), 
Washington, and Wyoming.
    While this final rule does not change the types of PPE that are 
required, it imposes additional or more stringent PPE payment 
requirements on employers than existing OSHA standards. Therefore, the 
states will be required to revise their standards within six months of 
this Federal Register notice or show OSHA why their existing standard 
is already ``at least as effective'' as the new federal standard. 
Thirteen states require payment for most PPE through regulation or 
policy. In addition, three states (California, Minnesota, and Puerto 
Rico) currently require payment for all PPE. (In these states, the 
employer may be required to pay for the minimal PPE needed to do the 
job, but can require the employee to pay for equipment upgraded at the 
employee's request.)
    OSHA received very few comments concerning implementation of the 
final rule in the state plan states. The State of Minnesota noted that 
it has required PPE payment by employers since 1973, without any 
exceptions, under Minnesota Statute Sec.  182, subd. 10(a). Minnesota 
advocated federal adoption of the State's policy of requiring the 
employer to pay at least the minimum cost of all PPE needed for the 
job, including items of a personal nature that can be used off the job, 
e.g., safety-toe footwear and prescription safety eyewear, without 
exception. The State expressed concern that employers in Minnesota 
would be confused if OSHA adopted a requirement different from the 
State's (Ex. 12: 20). It is the employer's responsibility to know and 
comply with the applicable occupational safety and health requirements, 
whether they are federal or OSHA-approved state plan requirements. 
States that choose to operate state programs are free to adopt more 
stringent standards but in doing so have a responsibility to 
communicate those requirements to employers in their state. A state 
plan state may always adopt standards identical to the federal if they 
wish to avoid such differences.
    While each state plan is ultimately responsible for communicating 
its state-specific standards and policies to the employers and 
employees within the state, federal OSHA will continue to work with the 
state plans to make information about state-specific policies and 
regulations that differ from the federal, including PPE payment 
requirements, publicly available to employers and employees through Web 
postings and other outreach activities.

XXI. Authority and Signature

    This document was prepared under the direction of Edwin G. Foulke, 
Jr.,

[[Page 64428]]

Assistant Secretary of Labor for Occupational Safety and Health, 200 
Constitution Avenue, NW., Washington, DC 20210. This action is taken 
pursuant to sections 4, 6, and 8 of the Occupational Safety and Health 
Act of 1970 (29 U.S.C. 653, 655, 657), the Longshore and Harbor 
Workers' Compensation Act (33 U.S.C. 941), the Contract Work Hours and 
Safety Standards Act (Construction Safety Act) (40 U.S.C. 333), and 
Secretary of Labor's Order No. 5-2007 (72 FR 31160), and 29 CFR part 
1911.

List of Subjects

29 CFR Part 1910

    Chemicals, Electric power, Fire prevention, Gases, Hazardous 
substances, Health facilities, Health professions, Laboratories, 
Logging, Occupational safety and health, Protective equipment, 
Radiation protection.

29 CFR Part 1915

    Chemicals, Electric power, Fire prevention, Gases, Hazardous 
substances, Health facilities, Health professions, Laboratories, 
Longshore and harbor workers, Occupational safety and health, 
Protective equipment, Radiation protection.

29 CFR Part 1917

    Chemicals, Electric power, Fire prevention, Gases, Hazardous 
substances, Health facilities, Health professions, Laboratories, 
Longshore and harbor workers, Occupational safety and health, 
Protective equipment, Radiation protection.

29 CFR Part 1918

    Chemicals, Electric power, Fire prevention, Gases, Hazardous 
substances, Health facilities, Health professions, Laboratories, 
Longshore and harbor workers, Occupational safety and health, 
Protective equipment, Radiation protection.

29 CFR Part 1926

    Chemicals, Construction industry, Electric power, Fire prevention, 
Gases, Hazardous substances, Health facilities, Health professions, 
Laboratories, Occupational safety and health, Protective equipment, 
Radiation protection.

    Signed at Washington, DC this 2nd day of November, 2007.
Edwin G. Foulke, Jr.,
Assistant Secretary of Labor for Occupational Safety and Health.

0
Accordingly, the Occupational Safety and Health Administration amends 
parts 1910, 1915, 1917, 1918, and 1926 of Title 29 of the Code of 
Federal Regulations as follows:

XXII. Final Rule

General Industry

PART 1910--[AMENDED]

0
1. The authority citation for subpart I of 29 CFR part 1910 is 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, and 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), 6-96 (62 FR 111), 3-2000 (65 FR 
50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160), as 
applicable, and 29 CFR Part 1911.

0
2. A new paragraph (h) is added to Sec.  1910.132, to read as follows:


Sec.  1910.132  General requirements.

* * * * *
    (h) Payment for protective equipment.
    (1) Except as provided by paragraphs (h)(2) through (h)(6) of this 
section, the protective equipment, including personal protective 
equipment (PPE), used to comply with this part, shall be provided by 
the employer at no cost to employees.
    (2) The employer is not required to pay for non-specialty safety-
toe protective footwear (including steel-toe shoes or steel-toe boots) 
and non-specialty prescription safety eyewear, provided that the 
employer permits such items to be worn off the job-site.
    (3) When the employer provides metatarsal guards and allows the 
employee, at his or her request, to use shoes or boots with built-in 
metatarsal protection, the employer is not required to reimburse the 
employee for the shoes or boots.
    (4) The employer is not required to pay for:
    (i) The logging boots required by 29 CFR 1910.266(d)(1)(v);
    (ii) Everyday clothing, such as long-sleeve shirts, long pants, 
street shoes, and normal work boots; or
    (iii) Ordinary clothing, skin creams, or other items, used solely 
for protection from weather, such as winter coats, jackets, gloves, 
parkas, rubber boots, hats, raincoats, ordinary sunglasses, and 
sunscreen.
    (5) The employer must pay for replacement PPE, except when the 
employee has lost or intentionally damaged the PPE.
    (6) Where an employee provides adequate protective equipment he or 
she owns pursuant to paragraph (b) of this section, the employer may 
allow the employee to use it and is not required to reimburse the 
employee for that equipment. The employer shall not require an employee 
to provide or pay for his or her own PPE, unless the PPE is excepted by 
paragraphs (h)(2) through (h)(5) of this section.
    (7) This paragraph (h) shall become effective on February 13, 2008. 
Employers must implement the PPE payment requirements no later than May 
15, 2008.


    Note to Sec.  1910.132(h): When the provisions of another OSHA 
standard specify whether or not the employer must pay for specific 
equipment, the payment provisions of that standard shall prevail.

PART 1915--[AMENDED]

0
1. The authority citation for 29 CFR part 1915 is revised to read as 
follows:

    Authority: Section 41, Longshore and Harbor Workers' 
Compensation Act (33 U.S.C. 941); Sections. 4, 6, and 8 of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-
2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160) as 
applicable; 29 CFR Part 1911.

0
2. A new paragraph (f) is added to Sec.  1915.152, to read as follows:


Sec.  1915.152  General requirements.

* * * * *
    (f) Payment for protective equipment. (1) Except as provided by 
paragraphs (f)(2) through (f)(6) of this section, the protective 
equipment, including personal protective equipment (PPE), used to 
comply with this part, shall be provided by the employer at no cost to 
employees.
    (2) The employer is not required to pay for non-specialty safety-
toe protective footwear (including steel-toe shoes or steel-toe boots) 
and non-specialty prescription safety eyewear, provided that the 
employer permits such items to be worn off the job-site.
    (3) When the employer provides metatarsal guards and allows the 
employee, at his or her request, to use shoes or boots with built-in 
metatarsal protection, the employer is not required to reimburse the 
employee for the shoes or boots.
    (4) The employer is not required to pay for:
    (i) Everyday clothing, such as long-sleeve shirts, long pants, 
street shoes, and normal work boots; or
    (ii) Ordinary clothing, skin creams, or other items, used solely 
for protection from weather, such as winter coats, jackets, gloves, 
parkas, rubber boots, hats, raincoats, ordinary sunglasses, and 
sunscreen.
    (5) The employer must pay for replacement PPE, except when the

[[Page 64429]]

employee has lost or intentionally damaged the PPE.
    (6) Where an employee provides appropriate protective equipment he 
or she owns, the employer may allow the employee to use it and is not 
required to reimburse the employee for that equipment. The employer 
shall not require an employee to provide or pay for his or her own PPE, 
unless the PPE is excepted by paragraphs (f)(2) through (f)(5) of this 
section.
    (7) This paragraph (f) shall become effective on February 13, 2008. 
Employers must implement the PPE payment requirements no later than May 
15, 2008.


    Note to Sec.  1915.152(f): When the provisions of another OSHA 
standard specify whether or not the employer must pay for specific 
equipment, the payment provisions of that standard shall prevail.

Longshoring

PART 1917--[AMENDED]

0
1. The authority citation for 29 CFR part 1917 is revised to read as 
follows:

    Authority: Section 41, Longshore and Harbor Workers' 
Compensation Act (33 U.S.C. 941); Sections 4, 6, and 8 of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-
2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160) as 
applicable; 29 CFR Part 1911.

0
2. A new Sec.  1917.96 is added, to read as follows:


Sec.  1917.96  Payment for protective equipment.

    (a) Except as provided by paragraphs (b) through (f) of this 
section, the protective equipment, including personal protective 
equipment (PPE), used to comply with this part, shall be provided by 
the employer at no cost to employees.
    (b) The employer is not required to pay for non-specialty safety-
toe protective footwear (including steel-toe shoes or steel-toe boots) 
and non-specialty prescription safety eyewear, provided that the 
employer permits such items to be worn off the job-site.
    (c) When the employer provides metatarsal guards and allows the 
employee, at his or her request, to use shoes or boots with built-in 
metatarsal protection, the employer is not required to reimburse the 
employee for the shoes or boots.
    (d) The employer is not required to pay for:
    (1) Everyday clothing, such as long-sleeve shirts, long pants, 
street shoes, and normal work boots; or
    (2) Ordinary clothing, skin creams, or other items, used solely for 
protection from weather, such as winter coats, jackets, gloves, parkas, 
rubber boots, hats, raincoats, ordinary sunglasses, and sunscreen.
    (e) The employer must pay for replacement PPE, except when the 
employee has lost or intentionally damaged the PPE.
    (f) Where an employee provides adequate protective equipment he or 
she owns, the employer may allow the employee to use it and is not 
required to reimburse the employee for that equipment. The employer 
shall not require an employee to provide or pay for his or her own PPE, 
unless the PPE is excepted by paragraphs (b) through (e) of this 
section.
    (g) This section shall become effective on February 13, 2008. 
Employers must implement the PPE payment requirements no later than May 
15, 2008.

    Note to Sec.  1917.96: When the provisions of another OSHA 
standard specify whether or not the employer must pay for specific 
equipment, the payment provisions of that standard shall prevail.

Marine Terminals

PART 1918--[AMENDED]

0
1. The authority citation for 29 CFR part 1918 is revised to read as 
follows:

    Authority: Section 41, Longshore and Harbor Workers' 
Compensation Act (33 U.S.C. 941); Sections. 4, 6, and 8 of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-
2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160) as 
applicable; 29 CFR Part 1911.

0
2. A new Sec.  1918.106 is added, to read as follows:


Sec.  1918.106  Payment for protective equipment.

    (a) Except as provided by paragraphs (b) through (f) of this 
section, the protective equipment, including personal protective 
equipment (PPE), used to comply with this part, shall be provided by 
the employer at no cost to employees.
    (b) The employer is not required to pay for non-specialty safety-
toe protective footwear (including steel-toe shoes or steel-toe boots) 
and non-specialty prescription safety eyewear, provided that the 
employer permits such items to be worn off the job-site.
    (c) When the employer provides metatarsal guards and allows the 
employee, at his or her request, to use shoes or boots with built-in 
metatarsal protection, the employer is not required to reimburse the 
employee for the shoes or boots.
    (d) The employer is not required to pay for:
    (1) Everyday clothing, such as long-sleeve shirts, long pants, 
street shoes, and normal work boots; or
    (2) Ordinary clothing, skin creams, or other items, used solely for 
protection from weather, such as winter coats, jackets, gloves, parkas, 
rubber boots, hats, raincoats, ordinary sunglasses, and sunscreen.
    (e) The employer must pay for replacement PPE, except when the 
employee has lost or intentionally damaged the PPE.
    (f) Where an employee provides adequate protective equipment he or 
she owns, the employer may allow the employee to use it and is not 
required to reimburse the employee for that equipment. The employer 
shall not require an employee to provide or pay for his or her own PPE, 
unless the PPE is excepted by paragraphs (b) through (e).
    (g) This section shall become effective on February 13, 2008. 
Employers must implement the PPE payment requirements no later than May 
15, 2008.


    Note to Sec.  1918.106: When the provisions of another OSHA 
standard specify whether or not the employer must pay for specific 
equipment, the payment provisions of that standard shall prevail.

Construction

PART 1926--[AMENDED]

0
1. The authority citation for subpart E of 29 CFR part 1926 is revised 
to read as follows:

    Authority: Section. 107, Contract Work Hours and Safety 
Standards Act (Construction Safety Act) (40 U.S.C. 333); 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), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-
96 (62 FR 111), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160) as 
applicable; and 29 CFR Part 1911.

0
2. A new paragraph (d) is added to Sec.  1926.95, to read as follows:


Sec.  1926.95  Criteria for personal protective equipment.

* * * * *
    (d) Payment for protective equipment. (1) Except as provided by 
paragraphs (d)(2) through (d)(6) of this section, the protective 
equipment, including personal protective equipment (PPE), used to 
comply with this part, shall be

[[Page 64430]]

provided by the employer at no cost to employees.
    (2) The employer is not required to pay for non-specialty safety-
toe protective footwear (including steel-toe shoes or steel-toe boots) 
and non-specialty prescription safety eyewear, provided that the 
employer permits such items to be worn off the job-site.
    (3) When the employer provides metatarsal guards and allows the 
employee, at his or her request, to use shoes or boots with built-in 
metatarsal protection, the employer is not required to reimburse the 
employee for the shoes or boots.
    (4) The employer is not required to pay for:
    (i) Everyday clothing, such as long-sleeve shirts, long pants, 
street shoes, and normal work boots; or
    (ii) Ordinary clothing, skin creams, or other items, used solely 
for protection from weather, such as winter coats, jackets, gloves, 
parkas, rubber boots, hats, raincoats, ordinary sunglasses, and 
sunscreen.
    (5) The employer must pay for replacement PPE, except when the 
employee has lost or intentionally damaged the PPE.
    (6) Where an employee provides adequate protective equipment he or 
she owns pursuant to paragraph (b) of this section, the employer may 
allow the employee to use it and is not required to reimburse the 
employee for that equipment. The employer shall not require an employee 
to provide or pay for his or her own PPE, unless the PPE is excepted by 
paragraphs (d)(2) through (d)(5) of this section.
    (7) This section shall become effective on February 13, 2008. 
Employers must implement the PPE payment requirements no later than May 
15, 2008.

    Note to Sec.  1926.95(d): When the provisions of another OSHA 
standard specify whether or not the employer must pay for specific 
equipment, the payment provisions of that standard shall prevail.

[FR Doc. 07-5608 Filed 11-14-07; 8:45 am]
BILLING CODE 4510-26-P